Examination of Witnesses (Questions 84
TUESDAY 1 MAY 2001
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
(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
(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
orderso where it has not already been proved that the child
is suffering significant harmis 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
even51/49 per centbalance which tilted against the
parents. They wanted it to be a significant stepa 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 steppotentially, 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 familythe 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 protectionbut 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.
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 favourrightly
or wronglyof 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 permanencewith 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 supportthrough 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
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.
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 orderlike
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.
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
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 thatless 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.
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.
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
(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
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.
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.