Select Committee on Adoption and Children Bill Minutes of Evidence

Examination of Witnesses (Questions 84 - 99)




  84. Can I welcome you to this morning's session of the Committee and welcome our witnesses from BAAF and, again, Mr Paton. It is very good to see you again. Can I ask our witnesses to introduce themselves to the Committee?

  (Ms Collier) I am Felicity Collier. I am Chief Executive of BAAF (British Agencies for Adoption and Fostering).
  (Ms Cullen) I am Deborah Cullen. I am Secretary of the Legal Group of BAAF.

  85. Thank you very much. Can I begin by expressing our gratitude for your written evidence, which is very detailed and very helpful, from our point of view. Obviously, our questions will be largely based on what you have had to say. Perhaps I could begin by looking at the issue of the welfare principle contained within this Bill and ask you your views on how that, perhaps, balances the issue of the child's own views in respect of adoption, in particular, with the issue of the views and rights of the natural family? I think, perhaps, you were here last week when we were exploring the issue. One of the challenges of childcare legislation throughout history has been the balance between the rights of the child, rights of the natural family and the role of the state. Every stab at legislation has this balancing act to do. I wondered, from the evidence that you have put forward, if you feel the balance is enshrined or not within the legislation as we have it at the present time.
  (Ms Collier) We welcome the application of the paramountcy principle, that the welfare of the child must be the paramount consideration in decisions about adoption, with one exception, which you will have seen from our evidence, in relation to the dispensation of parental consent. We recognise that many of the children who are placed for adoption are placed without the consent of their birth families. Indeed, our own research suggests that approximately 60 per cent of the cases are actually contested in court. We welcome the move away from the current legislative requirement, which is that parental consent can only be dispensed with if parents are withholding it unreasonably. We think the test of reasonableness is very difficult, as it would be difficult to understand a parent who considers they are reasonable who would give their consent in some of these circumstances. Using the test of paramountcy where parents do object and where there is no care order—so where it has not already been proved that the child is suffering significant harm—is one we are concerned about. We need to look more carefully before parental consent is dispensed with. For example, if failing and disadvantaged parents were struggling to care for their children and asked the local authority to accommodate their children while they received help and support, it would not be helpful if they thought that too easily a decision would be made that it was in the paramount welfare of the child to be placed with a new family. Because, after all, you can think of a situation when any plainly struggling and impoverished family would actually, perhaps, not have as much to offer in terms of some of the outcomes against which success in childhood is measured compared with some approved and very well-motivated and committed potential adopters. We would suggest the addition of some words, such as "so significantly better". Deborah, perhaps you could add to this.
  (Ms Cullen) What we have included in our written evidence is taken from the recommendations of the Adoption Law Review Inter-departmental Working Party, which reported in 1992. They proposed that the test would be not necessarily written in stone in these words but suggested it should be something to the effect that the advantages to the child of being adopted were so significantly better than any other option as to justify overriding the parental objections. So, what they wanted to avoid was where there was some almost even—51/49 per cent—balance which tilted against the parents. They wanted it to be a significant step—a threshold, as one has a threshold in the Children Act for making a care order. I think that is what we would like to see. Unless you have some significant step—potentially, I am not saying that people will rush and do it, but it is potentially easy to go down a road of saying "Well, all these under-achieving families will not provide the best for their children and we will put them in stronger and better-put-together families".

  86. We will probably come on to the threshold question in more detail. What you are saying is that you believe it is possible to enshrine within this legislation the kind of balance issue to which I referred in a way, perhaps, we have not managed to up to present?
  (Ms Collier) Yes. I recognise that you can take the checklist, which includes, for example, the impact on the child of not being a part of their birth family—the lifelong implications. If you take them all together and, also, our commitment to Human Rights' legislation and other conventions, then it could be said that there is sufficient protection—but what we are concerned about is absolute clarity about this threshold, because there are implications for children; legally established care plans do not apply only to childhood but will have an impact on the rest of the child's life. It is a balancing act when we know that not all adoptions of some of these vulnerable children are successful. There is a threshold issue, but I do not want anything we say to actually be interpreted as a reluctance to consider adoption for children for whom their birth families cannot be the lifelong resource that every child deserves to have.

Mr Brazier

  87. Two points, both from abroad on this. Some of the key findings in the Clinton Initiative, which the Government has rightly, in my view, taken, to some extent, as its model, I think it would be fair to say, in the original Prime Minister's White Paper, were that, not surprisingly, children were being allowed to languish in care for too long. Parental rights were not being terminated quickly enough in many cases, there was insufficient scrutiny of birth parents' failure to meet parenting rehabilitation requirements, with too many situations resulting in cases going back to court several times, children going into care, then back home, then going back into care again. What you have said in outline, in principle, is unobjectionable, but surely the practical fact is that the courts are, at the moment, very strongly in favour—rightly or wrongly—of the birth family and if we want to move the thing we do need to have the kind of paramountcy clause which is supported by, for example, the Association of Directors of Social Services, who we have got coming next.
  (Ms Collier) Our own research evidence about children who are actually adopted suggests that only 20 per cent of those children have actually been backwards and forwards to birth families after first coming into local authority care. We are very concerned about the importance of proper planning for children and the importance of children achieving permanency. That is why we are currently recommending, within the BAAF position within the National Adoption Standards Working Party, that consideration is given at every review of looked after children as to how they will achieve permanence. Clearly, this is still something subject to the recommendation of the expert working party about when you will consider adoption. We believe that at the second review for children who have been looked after continuously for four months, you should consider how that child achieves permanence, recognising that for most children permanence is best achieved by a safe, secure and permanent return to their birth family. Where that is not possible we need to look at the alternatives, including adoption. For all children in care between six and ten months we need to ensure that there is not a delay and that this is not built into the process. We recognise that BAAF's own research demonstrates that for too many children the period between starting to be looked after and subsequent approval of the adoption as the plan and then being placed with families is too long. We are very concerned to address the reasons for that delay.

  88. To bring it back to home, we all, I think, have met children who would liked to have been adopted. I even had one working in my office who just simply said "My parents blocked it" or "My mother blocked it", or whatever. Chairman, if you will allow me to raise my second point, which I am sure we will come back to in more detail later, it ties in in terms of a line of thinking here. In your evidence to the Committee, which we have received but have not had a lot of time to look at, you say that research has proved inconclusive about outcomes where there is or there is not continuing direct contact between adopted children and their birth parents. Then you go on to say, however, that it is wrong to assume that where a child is successfully adopted his or her birth family are no longer significant. You argue that closer ties with birth families fits in very much with some of what you were saying a moment ago. I just put it to you that the country that has gone furthest down that road is Australia. Adoption has virtually disappeared there, down to about 300 in the last year's figures available. I put it to you, if I may, that unless we are willing to move away from the rights of birth parents in this legislation, as the Government rightly in my view proposes to do, we are not really going to make any progress on improving the speed of the system.
  (Ms Collier) I think we should be clear that what we are saying is that there is little doubt that the birth family will, generally, remain important to the adopted person, and in many cases children are anxious to have news of their birth family. We are not advocating that in all cases, or indeed probably in the majority of cases, that direct contact is indicated. What we do say is that it is very important to have an assessment of the children's wishes and feelings in that respect, and whether or not direct contact with the birth family can offer on-going support. Many adopters have coped very well with contact which is generally, perhaps, two or three times a year, but there are many other children where that is not in the children's interests, but some letterbox contact and knowledge makes sense, because the experience of some adults (and we do not know the percentage) who have been adopted and have been treated throughout as though there is an absolute cut-off and have no knowledge and no understanding about their past, is the feeling of being unclear about their identity and background. We believe children have a right to this. This is not about rights of the birth family, it is about the rights of the children and adopted adults to have a clear sense of where they come from.


  89. Can I come back, for a moment, to what you said about the issue of permanence, because I gained the impression that your organisation feels, from what you said, that the current reviewing arrangements for children in care are not properly carried out; that the issue of permanency is simply not looked at. I find that very worrying because if that is the case in practice then it raises serious questions about how the reviewing practices work and who will oversee the review practices and whether we need somebody outside local authorities independently vetting this whole issue. Can you expand a bit more on what you meant and on what evidence you have got to suggest that we are not seriously raising that question?
  (Ms Collier) Successive inspection reports on the local authority adoption services, and also services for looked after children, demonstrate a lack of consistency. There are extremely high-achieving authorities where the process is rigorously carried out. I think there has been, since the introduction of initiatives by the Government, a greater concern about planning for children appropriately. We have seen, as you know, a 25 per cent increase in the use of adoption. What we are concerned about is to ensure that at every review of a looked after child the importance of those children achieving permanence—with adoption as one of the options and a very important option for young children for whom there is no realistic opportunity of a return home within a tight time-scale and with support—through adoption should be considered. We are talking about inconsistency. You have only to read the research by Professors Murch & Lowe Supporting Adoption, Reframing the Approach, Mervyn Murch and Nigel Lowe, BAAF 1999 and other research that demonstrates that at the moment there is not a solution to the inconsistency across the country. We want monitoring and availability of statistics in relation to that.

  90. Do you feel the steps the Government has taken so far in attempting to improve that situation are sufficient?
  (Ms Collier) We think that tremendous progress has been made. We recognise there are still inconsistencies and concerns which would be best approached through, we would hope, the implementation of the adoption standards, which we expect to be later this year, and, subsequently, by the Care Standards Commission and the setting of minimum standards in relation to adoption.

Ann Coffey

  91. I just wanted to go back to what you were saying about a threshold for placement orders. If you look at Clause 1(4) it has a whole list of things that have to be considered, presumably, before the court can make a placement order—like the child's wishes, the child's needs, the child's age, sex and background, and any harm in the relationship, etc. It is quite extensive. If you feel that that is still not the kind the threshold you would like, what actually would you like added into that?
  (Ms Cullen) I think what is set out in that checklist is very helpful. I have not really thought of any major omissions there. I think it is almost more a question of perception and, also, the training of the judiciary and the courts that are going to be applying this. It is set out there, and I think if you have a very rigorous approach taking that into account, taking the European Convention on Human Rights into account, and saying "We cannot separate a child and family unless we are really satisfied that in the European Convention sense and taking account of all the checklists that this is the right course of action", it might be sufficient, but for parents who might be, as Felicity said, making use of local authority services, to have a clear threshold as you have with care proceedings and the making of care orders, I think would be easier to understand than what they might see as somewhat nebulous in the European—

  92. Phrases like "significant" can be nebulous as well. All I am saying is that you are questioning, in effect, whether this is enough. I am saying to you if you do not think it is enough what do you want added in? Of course, there are issues about how it is interpreted and about the training of magistrates who will hear it, but if this is not sufficient what would you wish added to that list?
  (Ms Cullen) I know there has been an argument, because we have been having it for many years since the review first reported, about whether "so significantly better" really means anything, and whether that is enough.

  93. It does not say "significant"; it has got a list here.
  (Ms Cullen) Here it has, yes, but whether what we are proposing actually makes a difference. I think the point that we are trying to make is that parents need to know that there is a step, a threshold, that their child cannot permanently be removed from them against their wishes unless they fall so far behind or so far below the standard that the child needs.

  Caroline Flint: To be honest, I think the phrase you refer to, which is adoption would be "so significantly better" to the child helps lawyers but I do not think a parent with a child going to the local authority and presented with that would think "Well, I feel better about that. I really understand what that is all about." It is lawyer-speak, is it not? At the end of the day, it is about the parents on the ground (who may or may not be lawyers for that matter, and there may be some who are lawyers) and how the local authority staff handle situations where children may come to their attention who they may start off seeing as in some sort of need, and which may or may not escalate depending on the services provided by the local authority which leads to a point where decisions have to be made. It is not clear-cut. I have to say, I understand what you are getting at but if you are making an argument that that phrase is good for parents, I think it does not really mean anything to parents, it just means something to different lawyers in a court of law deciding what "significantly better" means and their interpretation of it, surely.

  Ann Coffey: I wanted to put another question, if you have finished.

  Chairman: I think John wanted to come in here.

Mr Hutton

  94. Just very briefly, David. I am interested in what you are saying about circumstances in which parental consent should be dispensed with. I understand you have concerns about applying the paramountcy principle to that decision-making process. I would be grateful if you could spell out to the Committee what you think the practical consequences of dis-applying the paramountcy principle in these cases would actually be. In a nutshell, would that mean fewer adoptions?
  (Ms Cullen) In principle it sounds as though it would. If it were interpreted correctly then what we are suggesting is that if there are a slightly smaller number of adoptions it is because those children should not be being removed against the parents' wishes. I suspect, actually, that it would not make a huge difference to the numbers of adoptions, but it would make the courts and the agencies look very carefully at whether what the parents were saying should be given greater weight.
  (Ms Collier) We will need to take that in balance with the fact that we do believe that this legislation would give greater clarity to the entire adoption process and would potentially increase the numbers of adoptions, which I know is the Government's target. Certainly, while there are children who do not have a secure and stable family life, we consider that may be an appropriate aim. We are not saying that we want to reduce, per se, the number of adoptions, we want to ensure that they are made in appropriate cases where there is a fair understanding by parents and lawyers. It is true to say that BAAF's Legal Group has had representations from a range of lawyers. Indeed, the judiciary have been very exercised by this particular issue of "significance", which fits in what you have been saying, Caroline. It may well be that we understand the Government's intention and we understand the intention to ensure that this is taken in line with the other conventions to which Britain is a signatory, but we do not want to set up a concern in the future at some time that it could be used differently.

Mr Shaw

  95. If we did create a wider interpretation, my concern would be further delays and, also, making it more problematic for that group we are most concerned about, which is older children. Yes, it is important to seek their views but certainly in the cases I can remember being involved in, it was backwards and forwards for another assessment, another assessment, another assessment, another expert witnesses. I just wonder that if we went along with the proposals that you put forward in your evidence it would just give a green light to more of that—less in the magistrates and more in the county courts, further delays. As Deborah said, it could theoretically lead to less, and if that does mean less, we know it will mean less older children because they are the ones who are most difficult to place.
  (Ms Collier) The issue about the actual application of language and words like "so significantly" are something that we have already discussed with the Department of Health and we would wish to look again at the form of words to see whether there is any way that we can be more helpful.

Mrs Spelman

  96. I just wanted to pick up on a couple of things you said at the beginning. You made reference to resources and you made reference to a lifelong assessment of what is in the best interests of the child. In my view, these cloud the decisions somewhat. I think resources are paramount; you need very little resources to be an excellent parent. There is plenty of evidence in the Third World to prove that is right. In fact, the resources of the prospective adopters and the resources of the birth families should not be a consideration in this at all. It confuses the issue. Regarding the lifelong assessment, this is very difficult. I think, again, it just complicates the decision under this legislation that the child and the birth parents have a right to register their desire for contact. How can anybody from outside possibly know inside the mind of somebody else whether they will or will not, in a few years' time, want contact. I think it just clouds the issue. One of the hardest meetings I ever had was the all-party group on adoption, when I was cross-questioned in my own Private Members' Bill by birth families who said categorically that they want their rights to be considered equal with the rights of the child. The answer is you cannot, because a decision cannot be made if it is absolutely equal. I got the feeling, from your presentation, that you are inching in that direction. Surely that is the cause of the problem in many cases of the long delays. I would just like you to clarify, on those issues, how much importance you give to resources and this lifelong contact, when you see the point I am driving at about how you cannot put them on equal footing.
  (Ms Collier) There is no intention in my mind to put them on an equal footing because adoption services are for children. I go back to the fact that this is in the best interests of the children. The issue about "lifelong" is reflected in item C of the checklist and refers to the likely effect on the child throughout his life of having ceased to be a member of the original family. We think that it is important to support the inclusion of that within the welfare checklist. We believe that arrangements for contact, where they involve direct contact, which is, as I said, in the minority of cases, do have to be realistically assessed during the child's life. What may be right for a child who has very recently left their birth family and has an on-going wish to have knowledge may change later either way. That needs to be assessed and considered. It is about whether the child's rights and their wishes and feelings in relation to this is considered. Safety, of course, is of paramount concern, also, but we must not just assume that all families who have been unable to care for their children are in this position because of issues of safety. There may be other reasons why they have been unable to parent their children. We recognise the importance of adopters taking responsibility for making decisions about their adopted children, to whom they have made a legal and lifelong commitment, and their views will be very important. We do not think the contact arrangements, therefore, should be set in stone and should be appropriately reviewed by the adoptive parents.
  (Ms Cullen) I think, in a sense, the contact question is a slightly different one. We are talking about a decision about whether a child should be adopted or not. I think it is absolutely essential to look, as far as one can and no crystal ball stuff, and to take into account the fact that adoption has lifelong consequences, and that the child is a child now but at the age of 40 will still be a member of the adoptive family and not of his or her original family. So it is a factor, and it is the only order that can be made in respect of a child that has that sort of effect. So I think it is right that it should be explicit in the checklist. As far as delay is concerned, I do not think what is written or what we might be suggesting in itself has the potential to increase delay. Obviously, what is needed there to address that is good practice, both by the local authorities presenting their evidence and by the courts in cutting short endless re-assessments and reconsiderations, and there are limits that should rightly be set on how many times you go back and ask the same question and see if you get a different answer.

Mrs Spelman

  97. I am just a bit concerned that if we are going to re-assess along the course of a child's settling into an adoptive family and, we would say, achieving permanency by that, if you listen to a child in a few years' time and they say "I really, really would like to have more contact with my birth family now", the position of the adopters by then is difficult.
  (Ms Collier) The adopters are concerned about the best interests of the child, and the child may have a real need to understand about their past. Our experience is that most adopters want to work through that with the child. There are many adopters who make very successful arrangements for some on-going contact or some exchange of letters or correspondence at different stages in the child's life. What we are concerned about is that there are sufficient support services available for the adopter as well as their child to have advice and talk about the consequences of that.

  98. I think the point of that is, then, that support services might need to kick in at what would be a, comparatively, late stage. I suspect there is a pattern where we all think in terms of supplying support at the beginning, whereas this might arise at, say, adolescence.
  (Ms Collier) That is absolutely right, and children who have been adopted when they are relatively young and have had changes of carers, perhaps, in the first year or two of life, many adopters will tell you, have relatively successful adoptions through the early years but as teenagers the early experiences have quite an impact on a child's sense of identity and their behaviour. It may or may not be right at that very volatile time to establish contact, and the adopters will undoubtedly need support and help that is immediately available sometimes, in some of the very difficult circumstances that can arise in adolescence.

Ms Taylor

  99. I am concerned about a fair bit of what you are saying. You have referenced the fact that you have got considerable research information. Does this actually give you any indication at all about what the appropriate time-span may be for making this decision about permanent placement? What is the appropriate time-span?
  (Ms Collier) We believe as early as possible after a child has started to be looked after.

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