Examination of witnesses (60-83)
TUESDAY 24 APRIL 2001
MR JAMES PATON, MR MARK FERRERO, MS SANDRA WALKER, MS DIANE SHEPHERD, MS AMANDA FINLAY AND MS KAY BIRCH
60. I just want to look at the timetabling motion that is contained in Clause 89 which basically, as far as I can read it, understand it, is that when an application for a placement order is made the court will basically draw up a timetable about how long they think that process should take into account, given the black list. Presumably that is open to debate between the parties concerned about how long that period of time should be?
(Ms Birch) Yes.
61. I wanted to ask this. In the course of the assessment of the placement order, presumably if the Guardian ad Litem decides that further work on the child needs to be done they would go back to court and ask for an extension of the timetable which kind of led me to wonder, in effect, how different things were going to be because that is what happens at the moment and what checks there were going to be to make sure this process simply was not a formalising of what happens at the moment with deferrals and extensions and actually make things happen faster and what checks and balances there are on that? The second question about Guardians ad Litem which were basic questions about is there a problem and is their work actually monitored, what checks are there against quality of their work? Somebody raised an earlier question if a Guardian ad Litem appears to be not acting appropriately or there is concern about their work or delay in their work what recourse do agencies need to have to take up these concerns? So there are two separate questions.
(Ms Birch) Shall I take the first of those questions and Ms Shepherd can take the second. We currently have very little management information about how long adoption cases actually take. We do not actually record it nationally at all. The first thing that we thought we ought to make sure we had in place, much as Mr Paton said in relation to local authorities, is looking at what diversity there is in practice. So at the moment we have been looking at how long adoption cases are at the moment, what is the variety in practice, what is the cause of the variety in practice. Because what we want to do to underpin Clause 89 is to make sure that we have family proceedings rules in place that provide the checks and balances, the sticks and carrots, as it were, to go through that particular process. We need to allow the courts to have some discretion in dealing with adjournments to make sure that if a case changes in complexity as it is going through that we can obviously catch that and not prejudice the welfare of the child. The thing that is new in this Bill that has not been in previous adoption legislation is Section 1.
62. The undue delay.
(Ms Birch) 1(3) delay, which has not been part of adoption proceedings before, so that is there. I think what we have learnt through our experience with Children Act cases is there is no point just having provision in the Bill, you then have to be able to manage it and make it work. The things we want to put in place are (a) to have an idea of how long adoption cases should take in court so we have some sort of time limit indicator and we manage it, so like local authorities we can learn from best practice and make sure that is disseminated; (b) we are in the process of drafting a consultation paper on precisely that, an integrated structure, so that we can look at good practice and look at worst practice, get together, disseminate it and make sure the courts have access to the same information. Thirdly, in developing our roles we want to pilot some options for case management processes in adoption and also in processes for looked after children to try and make sure that we get the checks and balances right. I think if we are honest we have not got all of them right in the family proceedings rules and particularly we need to look at giving standards and provisions teeth. The rules obviously need to be drawn up but we want to draw it up taking into account the actual work on the ground.
Ann Coffey: I am not entirely happy with that because I am not sure that actually achieves the object of the exercise of avoiding delay because, if we are setting up the whole process to avoid undue delay, if we cannot tackle the problem of delay in the court then inevitably we are going to have delays with the best intentions in the world. I am sure that this sort of general provision, my recollection is that it was contained in the Childrens Act, a similar thing about undue delay, and you know we are going further on than that. So I am not entirely happy about that. I am not happy that there does not seem to be a better mechanism in place for examining the procedures through the court and coming back at court when they are messing around, when they are giving adjournments unnecessarily, when they are not doing enough challenging of people who come and ask for adjournments because unless we can have that tough mechanism my guess is that in a couple of years' time with the best intentions in the world we are going to be still looking at delays caused by the court system.
63. Hear! Hear!
(Ms Birch) There are two points to that. One is, yes, we have been working currently on a scoping study on delay in the Children Act to try and get at the root of exactly the problems that you spoke of and those proposals are currently being worked up and considered and the results of that study will be published which will look at the research point that you specifically mentioned. We can tighten court rules, we can tighten systems and procedures, we can set targets. The limitation we have in relation to case management in the courts is that finally, as we see it at the moment, there must be an element in judicial discretion to catch cases that are different. In some cases there may actually be a positive reason for delay, perhaps you cannot call it delay in those circumstances, but there may be a reason to have a gap, for example where perhaps a placement is being tried out perhaps with grandparents, as has been mentioned before, as an alternative to adoption. Sometimes we need to have gaps in the processes and the time that Children Act cases currently take are not always time taken that has been wasted or delay, sometimes that is a real need. What I think we have to do is we have to try and get the systems in place and we have to get the roles in place with teeth and that research we have done to try and find out how best we can fill those gaps. We do at the end of the day need to allow an element of discretion and that is where really working together with the judiciary, with the local authorities, with CAFCASS offices, comes into play to actually make sure that we do not actually lose what well run courts are doing in terms of disseminating those ideas to others.
64. I understand exactly what you say about complexity and obviously we are dealing with individual cases with various particulars, I understand that exactly. However, we have set targets, for example, in bringing youth offenders before the courts.
(Ms Birch) Yes.
65. Each of whose cases are also complex, each of those cases are subject to a probation officer's report. Okay, we talk about discretion but instead of just sitting looking at timetabling as solving it, which I do not think that really will, we should actually look at bringing in targets and the courts have to demonstrate why they do not reach those targets and in the future we can look at what the courts are achieving right across the land. I am wondering if perhaps there is a way forward in looking at this particular clause, looking at the possibility of introducing targets?
(Ms Birch) I probably have not made myself very clear. In looking at the range of how long cases take in the court at the moment, we are doing that to do precisely what you have suggested.
Ann Coffey: No, I am suggesting based on the Bill.
66. Ann, you raised a series of questions about Guardians ad Litem, if Diane Shepherd wants to respond to those.
(Ms Shepherd) I know you will appreciate that it is early days for CAFCASS. This is our fourth week.
67. Why have you not solved all the problems? What are you doing about it?
(Ms Shepherd) I am not aware we have inherited a problem in relation to recruitment. We have about 110 employed Guardians and about another 730 who are currently self-employed. We are actually actively looking at the moment with the unions at improving remuneration in relation to employed Guardians. In addition to that, we are also in a period of consultation with the other self-employed Guardians about their contractual arrangements. You probably know that the Guardians were managed by 57 different panels and from our discussions with panel managers it would appear that the arrangements for monitoring and accountability were different in each of the different panels. In addition, I think it is fair to say that there was a continual debate about preserving the Guardians' independence against the issue of accountability. CAFCASS will have to take a national perspective on that debate and that is something we are already talking to everybody about. The monitoring of the work will clearly be linked to our national standards which are still only in draft but work is being done imminently with the CAFCASS board about putting those into place. What we are trying to achieve is consistent high quality performance across all the Guardians whilst ensuring that this issue of independence is preserved in an appropriate way. There is a complaints process. Again, there were 57 different sorts of complaints processes for Guardians. We have an interim complaints procedure which the CAFCASS board has adopted which we are working to currently, but the CAFCASS board has a sub-committee which is looking at the much more detailed work that was done by the complaints task team which was working up to the end of the March, so we hope to introduce good procedure quickly to replace the interim procedure.
68. In the four weeks that you have been in place, have you come to any conclusions in looking at the nature of the complaints, going back to my point about the individual case I dealt with where it was not really a matter of using the complaints procedures, it was about the actual judgment and it was about reviewing that judgment and having a second look at that judgment, not so much a complaint? Have you had any thoughts on how you might distinguish between how one would deal with a judgment issue as opposed to a complaint about bad professional practice?
(Ms Shepherd) I think the answer is yes, but I would have to go back to my previous answer about the issue of a Guardian's independence. I have not come to a conclusion about how that balance has to be maintained yet.
69. You are looking at it currently?
(Ms Shepherd) Oh, yes, absolutely.
Ann Coffey: What does that mean?
Chairman: I think you were out of the room, Ann, when she answered that original point.
Ann Coffey: Sorry.
70. In changing to a completely different subject for Amanda Finlay, could I just say I do very strongly echo the comments Ann Coffey has made on this. I think this whole exercise could come unstuck if we do not get a grip on the courts, in so far as it is possible for Parliament to get a grip on the courts. I will try to put a rather complicated point as briefly as I can. The issue of the information provided to adopters is a crucial one that comes up from time to time and I have received quite a number of representations on this. People are not being given the accurate information on the children that they are adopting. I was amazed to discover across a range of Social Services' areas that there is in fact, it appears, no duty of candour and it is not illegal for people to be given bad information very often. If I could take an example closely paralleling this: I understand that Sir Ronald Waterhouse commented on his tribunal's recommendation that "...the Law Commission should inquire into the position of local authorities in relation to the publication of reports commissioned by them with a view to strengthening the defence of qualified privilege (or widening it) and giving guidance, at least, on their relationship with their insurers in this context." I am quoting from a letter from him. The reason why this is very important in all of this is that I understand not only is it not illegal for Social Services' departments to mislead potential adoptive parents and others with concerns that things may have gone wrong in Social Services, but the position is actually much worse than that because local authorities can be faced with a position whereby their insurers effectively tell them that if they tell the truththis is one of the things I understand that came out of the Waterhouse Reportthe insurers may walk away from them, they may actually be in breach of the terms of their insurance policies. When I first heard about this in correspondence some weeks ago I was frankly staggered. To cut a long story short, and you may well want to come back to us in writing on this, Ms Finlay, I understand that on 28 June the Chairman of the Law Commission announced that the Lord Chancellor had then signed a formal remit to the Commission requiring it to investigate these matters and the hope was that a reply would be received within six months and that was obviously nearly a year ago. Is there any news?
(Ms Finlay) You are quite right, I will have to come back to you on that because I do not have that answer at my fingertips. I do not know in relation to where the Law Commission has got to. I do not know whether there are any comments my colleagues from the Department of Health would want to make on this or not.
(Mr Ferrero) I think we do not know what the current position is either, so we will have to come back.
Chairman: You can come back on that to us. Julian, are there any further points you want to raise?
Mr Brazier: No, let us move on to the next area.
71. In Chapter V, the Registers, a specific point: will the Registers be available to any member of the public?
(Mr Paton) The Adopted Children Register?
72. Yes. Will that be a publicly available document?
(Mr Paton) The Adopted Children Register is.
73. So every child placed for adoption will be on that publicly available Register?
(Mr Paton) I believe that is the position at the moment. Chapter V effectively repeats the existing provisions.
Mr Shaw: In relation to the issues about placing and protection, if a child has been placed for adoption and the birth family are known to be dangerous, and it is not beyond the realms of possibility that they would be able to get access to this, is there a danger that they would then be able to find where that child lives and where that family is? If that is the case, in fact, would it be something that the court might consider if the panel had a view on this, that a child's name could be put on some sort of B List for their protection?
74. I appreciate this is a very technical question but he is a very technical man, Mr Shaw. You may wish to come back to us on that.
(Mr Paton) I think so. The operation of the Register is an issue for the Registrar General. We will look into that particular issue and write to you.
Chairman: Are there any further questions in particular to the Lord Chancellor's Department and CAFCASS?
75. Just following on from that last question. One of the areas where there is a greyness in the Bill is that there is an encouragement to speed the process up with an element of twin-tracking in the courts, which I think we would all welcome, but as far as I can see in a very complicated area there is no provision for secrecy there at all. In effect, if the twin-tracking took place an adoption could by default become an open adoption because it could be possible, while the twin-tracks are overlapping, for the birth parents to find out who the adopters are. What I am really saying is the twin-tracking proposals are only going to hold water for a normal adoption that is not an open adoption if it is made clear that there is a duty on the court and other agencies to protect the identity of the adoptive parents. Is that a fair point or not?
(Ms Birch) There is not anything on the face of the Bill to deal with that eventuality, you are right, it would be covered more through rules and procedures. For example, confidentiality of information in court proceedings, the details of how that would work would be covered within court rules, there is not anything on the face of the Bill.
76. Have you given some consideration to what additional resources are necessary to meet these new responsibilities, such as in the case of unmarried fathers who now want to register for parental responsibility, as in the case of the special guardianship orders? All of these issues raise increased workloads. Are you doing any assessment at all about resources that you will need to meet projected demand?
(Ms Birch) We are looking at resources and obviously we will need to keep resources under review as the Bill is considered. In relation to joint registration of parental responsibility, the main resource there is actually purely in terms of providing information to people as to what joint registration involves. Actually the cost is fairly minor because many parents already effectively jointly register the birth of their child and there is no need for them to do anything different. What we do need to do is to make sure they are aware of what the consequences of that are. In relation to the other provisions within the Bill, what we are looking to do, as I mentioned before, is the current problem we have is resources in adoption are spread very thinly over a large number of centres with high overheads in terms of training systems which actually we do not need if we actually put the resources in the right place. Broadly on the areas of adoption, what we are aiming to achieve is to make sure that by getting the resources in the right places we make better use of them and also by reducing delay, which is not only very bad for children but very costly for the court system. We effectively have not only costs in the system but also savings. In some of the areas it is quite difficult to know exactly what the resource implications will be because they are new orders. For example, special guardianship orders is a very new provision and it is difficult to know exactly what the take-up will be until it gets running. For example, when parental responsibility first came under the Children Act it was presumed that there would be far more parental responsibility agreements registered than turned out to be the case. In the court proceeding, as well as the additional volume of actual adoption applications, particularly in respect of looked after children, adoption is actually one element of a usually much longer process in relation to children in care and it may be that in terms of providing greater options for permanence of children, both in terms of adoption and through special guardianship, the knock-on effect of that will actually mean that we have fewer applications, for example, for residence orders or fewer backwards and forwards over contact and residence because actually the children have got some permanence and their carers have got a greater degree of responsibility and control over the upbringing up of those children. What we are at the moment looking at is effectively an up and down in terms of resources which leaves us at the moment, as we anticipate it, overall about the same. That is not to include the issues of modernisation of the courts, for example, for which video conferencing, better use of the estate, which is part of the Department's own resource planning and for which resources are in place. I think we are looking at a range of information provision at the smaller end to major investment in the IT infrastructure at the other end, but all of those are effectively being looked at and will be reviewed as the Bill progresses.
77. The Lord Chancellor's Department is waiting for a report, is it the Auld Report?
(Ms Birch) On the criminal justice system it is Lord Justice Auld's report, yes.
78. It is just on criminal?
(Ms Birch) It is on criminal, yes.
Chairman: Are there any further burning questions to our colleagues? Liz? We have lots of questions we have not covered yet.
Mrs Blackman: I would like to ask a few questions on disclosure of information.
Chairman: If you can make them very sharp questions because we are trying to conclude at one.
Mrs Blackman: I have been waiting patiently.
Chairman: I just make the point that there are a lot of issues that we have not covered. There will be an opportunity to meet the Department of Health again, so if you want to leave it until then.
79. I want to ask a few questions of Mr Paton, I will make them very sharp. You have already referred in the introduction to your intention to develop regulation that covers disclosure of information and you talked about sub-sets and there was information regarding the process leading to adoption, then information for adopters themselves and then there was this final category which was post-18, which I will come to separately. It is a very hazy area, this developing of regulation, I cannot quite a handle on it because it is behind the scenes at the moment. What is happening? How do you set about developing regulation? Who are you consulting and what is the timescale? That is the first thing.
(Mr Paton) I think the intention is that it should not be behind the scenes. I think what would have been behind the scenes was for us to have dreamt up something rigid and stuck it in primary legislation. The Government has tried throughout this whole process to take an open and consultative approach themselves in the PIU Report and this process is part of what we are aiming to get at. I think the timescales are set out in the back of the White Paper in terms of the development of many of the frameworks and review mechanisms that we have talked about today.
80. Who are you consulting with at the moment with respect to regulation governing disclosure of information?
(Mr Paton) We have an expert group that was convened to advise us on the national adoption standards and they conducted an extensive consultation exercise on them. I think I am right in saying that broadly the same group has been commissioned to do work on our behalf in terms of developing a Code of Practice to underpin those standards which will deal with practice issues about what kind of information should be made available when. That group itself, and I cannot read off the exact names but it has something like 30 members drawn from a very wide range of organisations representing all the various parties in the adoption process
81. Does that group include individuals who have been frustrated by the lack of information going through the process or who have completed the process and become adopters but still felt frustrated by the lack of information?
(Mr Paton) It includes individuals from organisations who have spoken for adopted people. I think that the model that it took on the adoption standards was to produce a draft set of standards which the Government put out for consultation so that all parties who had an interest in the issues could comment on them. I imagine that broadly that is the kind of approach we will continue to follow. Absolutely none of this process is about trying to develop things in a black box, it has all been about the reverse really.
(Mr Ferrero) Can I just add that the membership of the Expert Working Group on the standards included NORCAP and Adoption UK, both of whom are national organisations representing people who have adopted and their interests and the information that they would require through the process. James is absolutely right that that is step one, if you like, about firming up proposals and then proposals for regulations and standards are consulted publicly so that anybody with an interest can make representations in that consultation exercise. It was a similar consultation exercise that was carried out for the PIU Report and for the standards. It is a public consultation exercise based on soundings from experts who actually represent the wide spectrum of interests that are concerned in these matters.
82. I have a lot more questions on that particular point but I will not ask those now. Just moving on to this last sub-set, the post-18s. NORCAP have been quite critical about that particular group's access to information about their birth parents. How do you respond to the criticisms they make about that?
(Mr Paton) I have not seen the absolute detailed points that they have made. I think the intention of regulatory provisions is to try to provide consistent access to information, picking up from points that were raised in consultation in the PIU Report. The Bill provides the legislative framework for the Government to put in place a more consistent right of access. What that is access to is something that we need to work on with all of the interested parties. The Bill creates the framework to allow the Government to deliver that.
83. They make the point that there is a blurring between the personal data and third party information that needs a degree of clarity, particularly when people reach 18 and are desperate for defining a context for themselves and more work needs to be done.
(Mr Paton) As I understand it there are intersections here with the Data Protection Act and disclosure of identifying information about other parties. I think there are other routes in other parts of the Bill, particularly the Adoption Contact Register, for people who have been adopted and wish to register an interest in making contact with their birth families. There is a range of ways to help them facilitate that contact if that is what they want.
Mrs Blackman: Was that quick enough?
Chairman: Liz, you did a great job. Any colleagues with a final burning point before we conclude the meeting? I am very conscious that there are a number of areas that we have not covered and we will need to come back and go over them in more detail. Can I thank all of our witnesses for a very interesting and very useful morning, we are very grateful for your co-operation.