Examination of witnesses (1-19)
TUESDAY 24 APRIL 2001
MR JAMES PATON, MR MARK FERRERO, MS SANDRA WALKER, MS DIANE SHEPHERD, MS AMANDA FINLAY AND MS KAY BIRCH
1. May I welcome our witnesses to the first public meeting of the Select Committee on the Adoption and Children Bill. May I begin by asking each of you briefly to introduce yourselves to the Committee.
(Ms Walker) Sandra Walker, Head of the Department's Legal Team on this Bill.
(Mr Ferrero) Mark Ferrero, Head of the Department's Policy Unit on Adoption.
(Mr Paton) James Paton, Bill Principal, from the Department of Health.
(Ms Birch) Kay Birch, Head of Children Branch of the Lord Chancellor's Department.
(Ms Finlay) Amanda Finlay, Director, Public and Private Rights Directorate in the Lord Chancellor's Department.
(Ms Shepherd) Diane Shepherd, Chief Executive of CAFCASS.
2. Could I just say briefly in terms of procedure, this is a fairly new procedure and what we are trying to do as a Committee is broadly work through the key elements of the Bill and ask specific questions on those key elementsso we are not jumping about from chunk to chunk but look at all the areas we want to go through. I am sure you will be familiar with the main areas that the Bill covers. Can I begin with some general introductory questions, by asking the three elements represented here what you see to be the key reasons for the need for the legislative changes in adoption?
(Mr Ferrero) I think there has been a long acknowledgement that adoption law needed to be looked at again, from April 1990 really. It is quite old law; it dates from 1976, and much of it dates from much earlier. I think society has moved on in that time. New legislation has come along, particularly the Children Act, which adoption law has not reflected. Following the work done in the early 1990s, there was a general consensus: yes, reform was needed; and we needed in adoption law to put the child right at the very centre of the process in the way that the child has been put in the centre of the Children Act. I think from those points of view there is broad consensus that reform and modernisation is necessary. That has been picked up by government and taken forward with the Bill that you have before you.
(Ms Finlay) I have on my right my colleague Kay Birch who is our great expert on the Adoption Bill itself and the delay in Children Act cases; and Diane Shepherd who is Chief Executive of CAFCASS. CAFCASS of course will have a very important role to play here. We regard the Adoption Bill as a very important step forward in enshrining in legislation the need to manage cases competently and effectively and in a proportionate time frame through the court. That is something that is important to enshrine in legislation; it is also very important for everyone who works within the system to work to achieve that. One of the things we in the Lord Chancellor's Department will be doing is setting in place a whole host of arrangements which will give practical effect to that. CAFCASS will be playing a very important role in that. Kay has been doing a lot of work looking at the causes of delay in Children Act casesboth children being taken into care and children being adopted. We have been using that information to draw up our plans for taking this forward and making sure it works better in the future.
(Ms Shepherd) I would be particularly keen to ensure that something is done to tackle delay; that the voice of the child is heard in the court; and that the interests of the child are paramount.
3. Two, and maybe more, of the new things we introduced, for example the independent review mechanism and information for adopters and adoptees, those are going to be drawn up in regulations, which means at this moment in time it will not be clear to us what will be in those regulations. I wondered if you could perhaps describe what you would imagine to be in those regulations when they come forward. Secondly, in looking at the adoption outcomes, it is clear the older the children the higher the chance of breakdown. I wondered if information you had about that had been fed into the Bill and in what way. The second thing was the whole issue of specialist training of social workers. Quite clearly, the better trained people are, the better judgments they make. At the end of the day a lot of adoption good practice is based on individual social workers and their degree of skill.
(Mr Paton) Dealing with your first point about the independent review mechanism and what is in the regulationsit is absolutely true to say that the primary legislative framework set out in the Bill is flexible. I think in terms of how we see the review mechanism operating, the White Paper published in December is the document to reference. It describes how the Government sees the independent review mechanism operating, and confirms that really the Government's intention is that it should be an option available for prospective adopters who feel that they may be being turned down unfairly. The White Paper sets out that the Secretary of State will establish an independent organisation to set up panels to review those cases where prospective adopters feel they are being turned down unfairly, and choose to exercise their right in the independent review. The White Paper describes broadly that model; but, as you say, it will be set out in regulations, and the Government intends to consult widely on how such an independent review mechanism should work. The legislation is flexible enough to allow that to alter and develop, if that is what we hear through consultation. On the information for adoptive families, again the provisions in the Bill allow us to specify in the regulations the kind of information that should be made available. This, I think, is a subset of a wider piece of work we are doing on the provision of information generally throughout the adoptive process. The Bill enshrines a right for adopted people who are over 18 to receive a set of information about their background; and also for adopters to receive a comparable package about the child they are adopting. It is also important before the final adoption stage that people have access to a broad range of appropriate information; and that is made clear in our draft national adoption standards, which the Government is backing up in the Code of Practice which will describe in more detail the kinds of information. I think we can expect the listing in the Code of Practice to be broadly reflected in the regulations which are eventually produced about the package of information that people are entitled to at the end of the day. We will be developing that draft Code of Practice over the summer. Your second point was about the breakdown rates increasing with age, and that is absolutely right. I think that the Bill tackles this in two ways: first of all, through the provisions for cutting down the delay in the adoption process. Both a National Register that we hope will allow for a swifter match between prospective adopters and children which is planned, and the Clauses which we will probably talk about today with reference to the courts and setting and enforcing of timetables for the timely resolution of adoption cases, should help to speed up adoptions for children, and particularly for younger children where speed is an issue. I think that ties into the general work we are doing on improving planning and decision-making for looked-after children for whom adoption is planned. That is an issue we are picking up in our draft national standards. We talk about the plan for permanenceusually it is to be made by six months and then timescales for delivering that afterwards. Because it has to be appropriate for each individual case, that is not something enshrined in primary legislation, but it is in the draft standards that we will be issuing in a binding form to local authorities, and they will need to follow it. It is worth adding that the standards also have a specific focus on even speedier planning and decision-making for relinquished babies. I think that picks up that we are trying to speed it up for younger children; but you are absolutely right that disruption rates tend to be higher for older children. I think that is where the provisions in the Bill about provisions of post-adoption support are important, because these older children tend to have multiple needs because of their pre-care history and their experiences in the care system. One of the strong messages to come through our consultation was the need to provide adoptive families with effective support in helping them to cope with their multiple needs, and also a mechanism to try and join up the various public services who could be relevant in the situation. Adoptive families told us they are almost having to fight against the system to get access and assessment. The Bill helps to tackle that in providing the right to assessment and provisions to allow the various health and education services to conduct a multidisciplinary assessment. We will be backing that up with our new framework for adoption support and making clear the kind of services the local authorities have to put in place. With the investment we are putting in to support the development of adoption services generally, I think we expect to see a large part of that funding going into the provision of adoption and support services.
4. From the information we have, the total number of adoptions in England and Wales has fallen from 20,000 in 1970 to 4,100 in 1999, and that reflects the fall in unmarried mothers giving their children up for adoption. There were also 55,000 looked-after children in 1999. The Government has a target of increasing by 40 per cent. the number of children to be adopted from care by 2004-05. In terms of what you started out by saying, which was changing the way in which children come up for adoption these days to 20 years ago, are you confident that this Bill will help address that 40 per cent. figure? How might it address the opportunity for children to be adopted much younger than they currently are, given that many more babies are not given up for adoption these days; and whether adoption should be a positive option when the Social Services are dealing with teenage mothers particularly in facing choices for the future?
(Mr Paton) I think you are absolutely right, there has been a major change socially in the role that adoption plays, and the figures you quote are right. It might be helpful to say that the 55,000 figure is a snapshot of the total number of children looked after by local authorities at any one point in time. It is worth saying, a lot of those children are looked after for short periods of time and successfully returned to their birth families: 40 per cent. are back within eight weeks; and around three-quarters within a year. It is relatively smaller numbers, around 28,000, who stay for two years or more. It is really those who spend longer in care that the Government's effort is focusing on. The target you refer to, the Public Service Agreement target, is for a 40 per cent. increase over the next five years in the number of looked-after children who are adopted, from the current level of 2,700. Turning to how this Bill we hope will help children generally get a greater chance of being adoptedI think that it should be seen as part of the overall programme the Government is putting in place. First of all, we need to get better at identifying when adoption is an option for looked-after children and planning for looked-after children. I think the draft national standards are one of the key points there, talking about plans after six months, and clear identification of what the options are, and timetables being set so that children do not drift, and a grip is got on what is the best option for the child. Are they going to return to their birth family? If there really is not a prospect of that, then planning early for what the appropriate placement is and making sure that adoption is firmly on the agenda at that point. On the point about adoption as an option for teenage mothers, I believe that the new arrangements the Government is putting in place, through the work on teenage pregnancy in the Department of Health, the new structures have required that information about adoption is one of the alternatives that must be presented to young teenage mothers when they are considering the options for their babies. That again is not something which has been tackled directly through this Bill, but I understand is taking forward in work the Government is doing with teenage prospective mothers.
5. One of the areas you did not cover in respect of Ann Coffey was that of training.
(Mr Ferrero) We fully agree you need a skilled workforce to deliver our objectives in this agenda. I think it is worth reminding ourselves that separately the Government has an initiative running about skilling-up the workforce in social care to equip them to deal with and deliver the sort of services they want to see. The Secretary of State has announced a £41 million programme on training to actually tackle that very point.
6. Just while we are in this introductory section of this morning's session, it might seem quite a naive question but already currently some local authorities have a much better record of placing children with adoptive parents. What themes have emerged that make them more successful than those with no such good track record?
(Mr Ferrero) I think that is a very important point to make actually and I am glad you have raised it. A lot of the philosophy of what we are trying to do in the White Paper is about raising the level of performance of all councils up to the level of the best. That is what has informed the target, that philosophy. You will probably know that we have established an Adoption and Permanency Taskforce which is actually helping to tackle poorly performing councils, but also to spread best practice and look at some of the better councils as well to see what they are doing that makes a difference. One of the themes I would say is emerging already is the sort of records that are kept about the children that the council is responsible for, and how up-to-date they are; and how well linked the adoption team is to the broader child care workers, so that planning for looked-after children is coherent across the piece. Those are the sorts of themes that are already emerging, and to a certain extent are reflected in our policy: better planning; better grip earlier on about what the long-term future is going to hold for this child being looked after; is the plan rehabilitation; is the plan some other form of permanence? I would say those are the things beginning to emerge now from the Task Force.
7. When actually examining what was going to go into the Bill, given that background of patchy performance by local authorities, was any serious consideration given to fundamental reform of the role of local authorities and the question of whether we should have a National Adoption Service?
(Mr Paton) I think to look at this issue is to take the process back a couple of steps, to the Prime Minister's Review launched in February 2000, where he commissioned the Performance and Innovation Unit to conduct a quick focused review of the problems in adoption and make recommendations for Government action. As part of that review process they looked at various structural options, including this idea of some kind of National Adoption Service. I think that review team felt that the disadvantages of creating a new structure and new barriers outweighed any increased advantage of focus, which could probably be delivered through other mechanismsprincipally the combination of clear national standards, and an active approach to spreading best practice. I think that the review team recommended that decisions about adoption should not be organisationally separated from the mainstream of looked-after children services, precisely for the kind of reasons members have picked up about the need to get adoption on the agenda at an early stage in terms of planning for looked-after children; and the creation of a new organisation would probably hamper that. What the review team recommended was to focus a programme of action to level up and improve the performance of services, because demonstrably there were parts of the country where this service was working and it could be done within existing structures. What the team found was that those were the areas where the adoption team was properly plugged into the wider children's services, where there were clear polices, where there were robust mechanisms for information, and where best practice was implemented. I think the approach the review team recommended was about spreading that model, rather than organisational change which, of itself, would probably delay rather than speed up the service.
8. Just on that pointand the general principle where a local authority is failing and coming from the best value principlecould you confirm, where a local authority is found to be missing its targets on the number of children adopted, missing its targets on the timescales, missing its targets in relation to assessment and support services, the logical conclusion would be that another authority would be sent in to run that service. Who would actually take that decision?
(Mr Paton) I think chapter 7 of the White Paper is the appropriate place to look at this. It does make clear that, just with all other mainstream Social Services services the Government has a range of performance action it can take, where there is not good performance, under both the Local Authorities Social Services 1970 Act and the Local Government Act 1999 under best value. The White Paper makes it clear that the Government will use this portfolio of options, which can include the ultimate, as you say, of the provision of service by another authority or organisation. The decision-making process is the same as it would be for the exercise of best value powers in any other circumstance, with the ultimate decisions with the Secretary of State.
9. For Health or for the Department of the Environment, Transport and the Regions?
(Mr Paton) It would be the Secretary of State for Health.
10. Could I just take you back for a moment. You have been talking about raising performance and achieving a system whereby breakdown would be less evident than more evident. Looking at the Bill and looking at your thinking here, what consideration did you give to establishing in a very formal way a counselling mechanism and support mechanism to all women, but maybe most particularly to younger women, who defined they were pregnant but not necessarily wanting to be in that situation, and that they were confused and unhappy and here we are with the situation where she is looking for support? What support did you feel, prior to the birth of the baby, you should be giving so that we actually enabled her to come to a decision which would hopefully then achieve a conclusion, which would help to minimise breakdown?
(Mr Ferrero) I think the main point to make about this is to refer to what James said earlier about the teenage pregnancy initiative in the Department of Health. That has clearly got a theme within it about making information available to young women who are pregnant about the options that are available, including adoption, and that information should be properly available. I am not quite sure I am clear about the second point you made about the breakdown.
11. It is about counselling. Information is fine; having available information is excellent; but it is actually giving that young woman an opportunity of talking to someone; of being listened to; of being given examples showing how; giving a sense of comfort and trust that the pregnancy she has, and she will come to a decision about, is actually going to be handled in a way that she can live with after. If she decides that this child is to be put up for adoption, she has actually come to that conclusion but we have established a process whereby she is comforted that the decision she finally comes to is appropriate. It is not just about bleak information; it is actually about the counselling process which many of the authorities, such as the Catholic and Anglican societies, actually pursue; and you are going to give local authorities the opportunity to do similarly.
(Mr Ferrero) I think this possibly gets beyond the remit of this Bill. I can say that part of the Government's initiative on pregnancy and adoption is about signposting people to where counselling is available to them, and that is done throughout the family health service, through the sexual health service, through the pregnancy advisors. Each Social Services Authority does now have a teenage pregnancy coordinator who is responsible for ensuring that those sources of information and those counselling services are signposted to those who might need them. That is where advice on adoption and the other options are coming from.
(Mr Paton) In terms of counselling for birth mothers who have given up their child for adoption, under this Bill the local authorities will have a clear duty to provide an adoption service that meets the needs for birth families. One of the changes we are making is to be able to specify regulations, a range of services, post-adoption support, including the kind of services that should be available for counselling for birth parents. There is a mechanism to help. The underlying thinking about provision is to try and ensure that a more consistent service is provided across the country. We will be developing over the course of this year what that national framework should look like; and what framework should be in place in consultation with the organisations. In combination with the front end of the process, there are provisions in the Bill that address support when it does relate specifically to adoption for people who have given up their children.
12. I am delighted that counselling is there after the child is born; but a greater problem is enabling that family to come to a decision before the child is born. Unless you are telling me I am reading the statistics wrongly, the great problem is that many women, after two or three years, find the strain unbearable, and then they place their children into care, and then their children come up for adoption. This has caused two or three years of quite definite traumatic experience for both the mother and the child. I am asking, why is it not the case, or is it not the case, you are considering putting counselling into the framework of this Bill prior to the birth of this baby?
(Mr Paton) I think, going back to what Mark said earlier, that counselling around adoption before the child is born is taken forward through the Government's broad approach to maternity counselling, rather than a specific duty in this Bill.
13. I have got one of the highest teenage pregnancy rates in my constituency. When young girls under 16 find themselves pregnant they will usually come under Social Services and have a social worker. Has any research been done on the quality of the counselling and advice given to them when they find themselves in that situation as to the alternative options; and therefore there is a feeling that it is not just about a public office speciality, but a clear direct link from Social Services involvement in a pre-birth situation?
(Mr Paton) That is not an area we are familiar with ourselves, but we can certainly provide written information for the Committee.
Mr Brazier: A very quick echo of those two points. A 13 year old girl in the village next door to where we live produced a baby completely to everybody's surprise. Her mother thought she was just putting weight on. She was not even told about adoption as an option. She was told categorically, "Either this child is taken off for fostering, or you look after it". Our Social Services have actually apologised for that. Getting the message all the way down the line really is critical.
14. The question of family placement with grandparents, for example, what form of priority is this going to be given in the Bill? Could there be some form of permanency written in the Bill so that the family, perhaps the grandparents, have care of the child in support of the mother or somebody else, so that there can be a joint form of permanency even though the child will belong to the mother?
(Mr Paton) I think the provision of the Bill relating to these considerations is really the new status around special guardianship, which does allow for a legally secure placement, that does not have the severing of the legal relationship with the birth family that adoption involves. As the White Paper makes clear, one of the areas where the Government sees special guardianship possibly playing a role is exactly in these kinds of family placements where the child is being looked after by a wider member of the family, be it grandparents or parent. In terms of support, the White Paper made it clear that special guardianship placements would have access to a range of support, including financial support. There are very limited provisions in the Bill at the moment on that, and that is something we are looking at and are planning to bring forward additions to the Bill over its passage.
Chairman: If we could turn to the welfare principle, in general terms, as set out in the White Paper.
15. During second reading of the Bill I raised the quite specific problem of the lack of melding between the Children Act and this new Bill. Right at the outset I think Mr Ferrero said that one of the big drivers for change was the need to update legislation to take account of subsequent legislation, particularly the Children Act. I took legal advice on this; and certainly in the view of the lawyers, who were trying to brief me on the lack of synchronicity, the wording was likely to generate litigation. I am sure the last thing any of us wants to do is to actually give lawyers more work to do. I raised under Section 1(3) of the Bill that the wording is significantly different to the Clause in the Children Act. The Bill actually reads: "1(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare"; whereas the Children Act states: "The court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child". It is those kinds of variations in the wording that we are concerned to see tightened and melded together. We want what is paramount to the child to be achieved. We have this opportunity to bring forward an updated Adoption Bill and we have to make absolutely sure it does achieve its declared aim of synchronising it absolutely perfectly under the Children Act.
(Ms Walker) Obviously the adoption provisions in the Adoption and Children Bill focus on adoption rather than the Children Act proceedings. If there are material differences in wording there will be a specific reason. In the particular example you cite about the slight difference in wording between Section 1(2) of the Children Act and 1(3) of the Bill, I do not think it is material but down to a difference in draftsmen.
16. In other words, it will be whether there is pressure in court really? How about the difference in emphasis between use of the word "must", conveying imperative, whereas the Children Act used the word "shall"? We have endless debates in standing committee over this terminology. I am not raising it to waste time but because lawyers can make hay out of that.
(Ms Walker) There is often a distinction taken in Standing Committee over use of the word "may" and use of the word "shall"; but I think the words "must" and "shall" are interchangeable.
17. I am also concerned with Clause 1(3) but in this context: obviously I think there is a consensus that it is really quite pivotal stuff and we are putting the child's welfare at the centre of it. My particular concern is the contrast with subclause 1(5) and the wording: "In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background". Obviously everybody understands when you are trying to place a child for adoption that, as far as possible, you want the child to blend in as much as possible. I know in the old days they were matching babies through things like eye colour and hair to try to see how closely they could match them. We are in a world here of options, and the concern I think a number of us have is that this subclause could be used by the lawyers as an argument against placing the children perhaps from ethnic minorities, or perhaps children from households with an exotic religion for which there are no matches available. I have two questions. First, to ask you to comment on a general point and specifically save time; and then on the specific issue of why can that clause not have something in its wording to say something like "except insofar as it interferes with 1(3)", or, "providing it does not cause unreasonable delay", or whatever; so it is clear while these are obviously factors that should be looked at they must not be used in the courts as a way of preventing options, where the only options are going away from them.
(Mr Paton) I think the first thing to say is that we do want (3) and (5) to be read together. I think the point you are making is absolutely right about the need to balance the two. Here we must think about what role primary legislation can play in setting the framework, and what role other means can play in pushing the practice that we need and want. As you say, I think there is a general consensus that it is possible we should try and produce a placement that reflects, as far as we can, the child's racial and cultural background. Subsection (5) is indeed an echo of the precise wording that is used in the Children Act on that point. I think the courts need to consider it alongside their obligation (3), that delay is likely to be harmful to the child. What that tries to do is set out in the legislative framework the position that the Government sets out in the draft national standards, that the placement of choice is one that reflects birth parentage but not to be pursued at the expense of harmful delay for the child. That, of course, can be backed-up by the kind of timescale benchmarks that the Government is going to be setting and monitoring. The primary legislation sets the framework and then the practice guidance and monitoring of management tries to ensure that practice conforms with the general framework that is set out in the legislation.
18. Could I just come back for a moment on that. What you said echoes very closely what the Minister made very clear in his speech, that that is clearly the Government's intention; and it is an intention which I am sure we would all support. Effectively what he said is that 1(3) should be overriding, that speed should be overriding on the basis that we would like to see a matching where it is possible but there are plenty of examples at the extremes of adoptions that do not involve a matching. What is the objection to simply adding the words into 1(5) "providing this does not cause undue delay"? Because effectively you have left it to the court to balance it, although the Government's position (and I suspect the position of most people on the Committee) would be that at the end of the day 1(3) should be the stronger of the two?
(Mr Paton) I think what we are talking about here is giving "due consideration" to those factors; and that "due consideration" is looking at all the other things that are in clause 1.
(Ms Walker) It is giving "due consideration"those are the words used in 1(5), and they mirror the words used in Section 22(5) of the Children Act, which talks about "giving due consideration ... factors to be taken into account".
19. Effectively the court will be able to weigh 1(3) against 1(5)?
(Mr Paton) I think the "due consideration" provides the kind of link we were talking about between 1(3) and 1(5).
(Ms Walker) In fact the obligation in 1(5) is on the adoption agency.