Select Committee on Select Committee on the Adoption and Children Bill Appendices to the Minutes of Evidence


Memorandum submitted by the British Association of Social Workers (BASW)

  We welcome the opportunity to submit written evidence to the Special Select Committee examining this Bill, and hope to have the opportunity to expand on it in oral evidence. It is important that the voice of practitioners should be heard alongside those of adopted people, adopters and birth parents, and of agencies and their senior managers.

  In organising our submission, we have generally followed the order in which matters are dealt with in the Bill itself. In paragraphs one to nine, however, we have brought together a set of issues which are in our opinion, of great importance, are closely interrelated and are dealt with in widely separated clauses.

The paramountcy of the child's welfare (Clause 1) and dispensing with parental consent (sub-clause 44(2)(b))

  1.  We agree that the child's welfare should be paramount in all decisions relating to adoption except that it is of the utmost importance that it should not be paramount when a court is deciding whether to dispense with a parent's consent. It is equally vital to amend sub-clause 44(2)(b), which provides that parental consent to adoption may be dispensed with if the child's welfare requires it. In saying this, we are following a recommendation of the Review of Adoption Law (1992), the comprehensive and expert review from which the present Bill largely derives, which we believe identifies a vital principle in adoption law. The key point is that the law should not allow a child to be removed from their family and have the legal relationship with their parents irrevocably severed simply because an adoption agency and a court are satisfied that another family could do a better job. There should be some limit on the State's right to intervene compulsorily in family life. Some may see this as a fundamental moral principle. For others it represents part of a contract between the State and the family, under which parents shoulder the major responsibility for the upbringing of their children, and in return receive certain benefits and services and guarantees against unwarranted intervention. Most people will probably see it as plain common sense. The Children Act 1989, when dealing with care orders, recognises that grounds have to be made out before the State can step in, and sets down "threshold conditions" which have to be proved before the court is free to consider whether it would be in the child's interests to make a care order. Once the grounds for intervention are established, the child's welfare becomes paramount, but not before. The legal effects of an adoption order are much more far-reaching than those of a care order, and similar safeguards placing sensible limits on the state's power to intervene compulsorily in family life are therefore all the more important.

  2.  With the Bill as it stands, it would be possible for a child to be adopted against a parent's wishes with no court ever having been satisfied that the parent has failed to meet the child's needs or is unsuitable to care for the child. This can happen under sub-clause 18(1), which enables a local authority to apply for a placement order on a child whom they are looking after at the parent's request (a service which the Children Act 1989 classifies as family support), and also under sub-clause 18(2)(a), where a local authority can apply for a placement order after applying for a care order (or even merely for a supervision order) but before the threshold conditions for a care order have been established. In both these situations the court may then make an order authorising the child's placement for adoption. Under sub-clause 18(2)(a), the child could even still be living at home when the placement order is applied for, and although it is unlikely that this would happen, making it possible is not good law. The only safeguard for parents is sub-clause 1(4)(f), which sets out considerations relating to parents and other relatives to which the court must have regard, but these considerations count for little or nothing if they do not fall on the same side of the scales as the welfare of the child. Paramountcy will always tip the scales conclusively. The court will make an adoption order if it is on balance even marginally conducive to the welfare of the child, quite irrespective of whether there is parental consent or parental opposition. The requirement in sub-clause 1(4)(f) for the court to have regard to the child's relationship with a parent, to the value to the child of this relationship continuing, to the parent's ability to look after the child and to her or his wishes and feelings turn out to have very little relevance. Because the child's welfare is not only paramount but is also the criterion for deciding whether to dispense with parental consent, the only consideration is whether it will be better for the child to be adopted than not to be.

  3.  Of particular concern is the effect that the wording on dispensing with consent will have on the provision of accommodation for children as a family support service under Part III of the Children Act 1989. This is a service in which local authorities look after children on behalf of their parents, and at their request, while helping the parents to achieve a situation in which their children can return to them. This service includes, for example, the provision of respite care for children with disabilities. Parents should be able to have confidence that, by entrusting their children to the local authority, they do not risk setting in train a series of events which ends with their children being irrevocably lost to them. There are, of course, situations in which children are looked after as part of a family support service and it subsequently proves impossible or contrary to their welfare for them to return home. These children form a small minority, but in such situations it is obviously important that a substitute family placement should be found for them, and that there should be appropriate legal procedures for this. What concerns us is that the Bill has no threshold which must be crossed in order to establish the State's right to intervene. It is ironic that a Bill which is intended to harmonise adoption law with the Children Act 1989 should pose such a threat to it. It is also worth noting that the Children Act itself actually abolished the High Court's power in wardship to place a child in local authority care using only the welfare test.

  4.  The test for dispensing with parental consent in sub-clause 44(2)(b) also fails to follow the recommendation of the Review of Adoption Law. The test proposed by the Review was that the court should be satisfied that the benefits for the child of adoption are so significantly greater than those offered by any alternative as to justify dispensing with consent. We support this wording. It continues to give the child's welfare great significance while creating space for other relevant considerations. It must be remembered that a child's future welfare is not a clear-cut issue. Particularly at the stage when a local authority applies for a placement order, there is likely to be more than one placement option which would be consistent with the child's welfare, and there will be some uncertainty as to which of these options will turn out best. Decisions about children's future welfare are based on uncertain predictions. Before dispensing with a parent's consent, and irrevocably ending their parenthood, it is reasonable that the court should ask itself, "How much better for the child is adoption likely to be, and how satisfied are we that this is the case? Is the benefit to the child sufficiently significant, and are we sufficiently confident that it will in fact arise, to justify us in irrevocably ending this person's parental status?"

  5.  Sub-clause 1(8)(c) should be amended to provide that references to the court's making an order do not include its dispensing with parental consent. Sub-clause 44(2)(b) should be replaced with the wording on dispensing with consent recommended by the Review of Adoption Law.

What kind of placement order?

  6.  The replacement of freeing for adoption by placement orders is to be welcomed, but in our view the Bill has opted for the wrong kind of placement order, and the proposals we put forward below, for a broader type of placement order to be introduced by appropriate amendment of the Children Act 1989, would make for a very substantial improvement of the law.

  7.  Local authorities have a duty to enable children they are looking after to live with a parent, relative, friend or other person connected with them unless this would not be reasonably practicable or would not be consistent with the child's welfare (s23(7), Children Act 1989). The decision that it is impracticable, or inconsistent with the child's welfare, to be restored to his or her parents, and that some form of long-term or permanent substitute family placement should therefore be found for the child, is a crucial one, and it can of course be the start of a process which will lead to an application for an adoption order. This decision, which is taken within the local authority with no involvement of a court of law, is often far more significant in reality in determining the child's future than subsequent adoption proceedings, which may reach the court only when the passage of time has made other options either impracticable or much less likely than they might have been at an earlier stage to be in the child's interests.

  8.  As professional practitioners involved in taking these decisions to cease attempts at rehabilitation and seek a substitute family placement, we consider that they would more appropriately be taken by a court, at a hearing where all concerned parties could be heard. The main issue before the court would be whether it is satisfied that it is, and is likely to continue to be, either not reasonably practicable or else inconsistent with the requirements of the child's welfare for the child to live with a person who already has parental responsibility (or whose parental responsibility under a residence order has been ended by the making of a care order). If the court was satisfied on this point, it would then release the local authority from its duty to seek to enable the child to return home by making a placement order which would authorise the authority to make a long-term or permanent substitute family placement. This might be an adoption placement, or with a view to special guardianship or a residence order, or with foster parents committed to offering the child a permanent home.

  9.  A placement order of this kind should not restrict a parent's subsequent right to refuse consent to the making of an adoption order (as distinct from an adoption placement), but evidence accepted by the court making the placement order might well be relevant to a subsequent decision as to whether to dispense with that consent. This preservation of the right to oppose the making of the adoption order makes possible a further improvement to the Bill. The Bill provides for parents to consent either to adoption by prospective adopters identified in the consent or to adoption by any prospective adopters chosen by the agency. There is not always, however, a free choice between the two options. If the agency finds itself under a duty to apply for a placement order, then the choice of consenting to adoption only by adopters identified in the consent disappears. It is relevant to ask at this point what a responsible parent should do. It is at the very least arguable that the responsible parent, accepting that adoption would be in the child's best interests, continues to exercise her parental responsibilities as fully as she can, and therefore carefully considers all relevant information about specific adopters proposed by the agency before agreeing to the adoption. Our proposals would make this possible.

Other matters in Clause 1

  10.  Sub-clause 1(4)(f) applies only to relationships which the child has already established. When determining the future of children, particularly those who are very young, it is important that both the adoption agency and the court should also consider relationships, for example with grandparents, which it may be beneficial for the child to develop in the future. Such considerations can be relevant to deciding whether the child's interests would be best served by an adoption order or by an alternative such as a residence order or special guardianship. Sub-clause 1(4)(f) should therefore also refer to relationships which may be established in the future.

  11.  In the same sub-clause, it is our understanding that fathers who do not have parental responsibility do not count as relatives, and that it will therefore be only at the court's or the adoption agency's discretion that their relationship with the child will be considered. Fathers who do not have parental responsibility should be specified as people whose relationship with the child should be presumed to be relevant.

The duty to provide a comprehensive adoption service

  12.  Sub-clause 3 improves on existing law by making it clear that the duty to provide a service to adopted people does not cease when they reach 18. In sub-clause 3(1), however, there should be a reference to relatives as well as to parents and guardians. As drafted, the Bill makes support services for grandparents and siblings of adopted children merely discretionary.

  13.  Clause 4 needs substantial improvement. A distinction should be drawn between the basic service of social work support, which should always be available as the main component of adoption support services, and additional services, such as the payment of an adoption allowance, where there is a case for some exercise of discretion. Social work support in connection with adoption should always be available, and it should not initially be conditional on an assessment of a person's needs having already been carried out. It should not be open to a local authority to decide whether or not to provide it, although once the order is made its duration and intensity should be discretionary. We are not sure how this principle could best be written into the law. One of our concerns with the present wording is that it may lead to an excessively bureaucratic approach in which nothing will be done to help people until standardised assessment forms have been completed and processed through complex rationing machinery. The end result of this approach can be that time and money which could have been spent on helping people is spent on deciding that their need for help does not have sufficient priority.

  14.  Sub-clause 4(1) restricts people to asking for support services for themselves. It does not provide, for example, for adopters to seek support for their child, or for the local authority to assess the child's needs at the adopter's request.

  15.  Sub-clauses (5) and (6) are also unduly bureaucratic. Any request for a one-off simple piece of help, information or advice triggers, if the local authority agrees to the request, a duty to prepare a plan and to keep it under review, in some cases beyond the child's eighteenth birthday. Nothing could be better calculated to discourage authorities from responding to straightforward requests. For situations where continuing help is required, a plan which is kept under review is clearly needed, but once again we are concerned that the wording of these sub-clauses may create unnecessary administrative expense.

Placement orders within adoption law

  16.  Having earlier (paragraphs 6 to 9) put forward proposals for a different kind of placement order, we now comment on placement orders as provided for in the Bill as it stands.

  17.  Where a local authority has applied for a placement order and the application has not been disposed of, the Bill provides that the child is to be treated as looked after by the local authority. Whether the local authority can during this time, ie pending the hearing of the application, prevent the child's removal appears to depend on whether the child is already subject to a court order. As with the draft Bill in Adoption—a Service for Children, it appears that an application for a placement order in respect of an accommodated child will not prevent the parent from resuming care of the child. This appears to us to be reasonable, but the position needs to be clarified.

  18.  Clause 18 does not provide any time to seek a parent's consent. As soon as a local authority decide that a child they are looking after ought to be placed for adoption, they are immediately put under a duty to apply without delay for a placement order rather than seek, the parent's agreement to adoption. This cannot be what is intended and the clause should be redrafted to make it clear that the local authority is expected to have taken time to work with the birth parents on the plans for the child and to explore with them whether they will consent, before applying for a placement order. It may be that the intention is that this work with parents should be undertaken after the placement order has been applied for, but this is not satisfactory.

  19.  It is not desirable that a placement order should remain in force for years. Its purpose is to authorise the agency to place the child. If the child is not placed within, say, two years, the court should be required to review the order.

  20.  Clause 20 provides for the revocation of placement orders. Unless the application for revocation is made by the adoption agency, leave of the court is required. Sub-clause 20(3) prevents the court from giving leave if there has been no change of circumstances. We suggest that it is unnecessary to fetter the court's powers in this way. There could well be confusion over what constitutes a change of circumstances, especially when the purpose of the order is to achieve an important change in the child's circumstances by placing him or her for adoption. If the child remains unplaced, that failure to change circumstances could well form part of a case for revoking the order. Sub-clause 20(3) should be deleted.

  21.  Assuming that placement orders remain restricted to adoption, it will need to be made clear that an alternative, satisfactory, non-adoption placement justifies the revocation of a placement order.

  22.  Sub-clause 26(1) provides that a care order made before or at the same time as a placement order has no effect while the placement order is in force. This seems misguided. The care order gives the local authority important duties, while the placement order is primarily an authorisation. We can see no reason why the care order should not continue to have effect, with the placement order supplementing it. Sub-clause 26(1) should be deleted.

  23.  An important purpose of the placement order hearing should be for the court to confirm the local authority's view that to return to the birth family would no longer be in the child's interest. Before making a placement order, therefore, the court should be satisfied, not only that the child's welfare will be best served by seeking an adoption placement, but also that it is, and in all likelihood will continue to be, either impracticable or contrary to the child's interests for a parent or other person with parental responsibility to take over the child's care. This can be achieved by an addition to sub-clause 18(7).

  24.  By Clause 18(2)(a) the local authority are instructed to apply for a placement order if they are satisfied that the child should be placed for adoption and the child is the subject of an application on which a care order could be made. This form of words includes, as well as a care order application, an application for a supervision order It seems perverse to provide that an application for a supervision order, which envisages that the child will remain at home, could be followed up with an application for a placement order. Sub-clause 18(2)(a) should be restricted to applications for care orders. Even if this change is made, there will be cases in which the child is still living at home. (There may be no emergency protection order or interim care order in force, and it is not impossible that a decision that the child should be placed for adoption could be made while the child is at home; it depends on the history of the case prior to the application for a care order.) We do not think it is appropriate to apply for a placement order in respect of a child living at home, and would therefore like to see sub-clause 18(2)(a) further amended so that it refers only to a child whom the local authority are looking after. We have in any case serious reservations about placement orders being applied for when a local authority has applied for a care (or supervision) order and that application has not been disposed of. It is unreasonable to require a parent who is contesting a care order application to enter at the same time into discussions about the possible adoption of the child. Also, relatives who may well be able and suitable to care for the child often do not come forward until a care order is made, in order to avoid competing with the parents. It would be preferable for the care proceedings to be completed before the local authority applies for a placement order. We suspect that the main reason why the Bill does not follow this course is the inordinate length of time taken by some care proceedings, but this is already a disservice to children and should be tackled. As a compromise proposal we recommend that where a local authority applies for a placement order after applying for a care order, but before that application is disposed of, the court should be satisfied that the threshold conditions for a care order are met before making a placement order.


  25.  The following observations on consents are additional to our discussion of dispensing with parental consent in paragraphs 1 to 5 above.

  26.  The Bill, unlike the previous administration's draft Bill, makes no provision for the child to consent to adoption. Our view is that:

    —  the child should be a party to the proceedings;

    —  a child of sufficient understanding should have the right to refuse consent to adoption and the court should then not have the power to make an adoption order;

    —  the child should also have the right to consent to the adoption, to refrain from giving or withholding consent, and to express any other views or wishes in connection with the application and to have them taken into account.

  27.  Clause 16(1) requires consent to an adoption placement only from parents and guardians. The consent of other people holding parental responsibility, eg under a residence order or under Clause 92 of the Bill (acquisitions of parental responsibility by step-parents) should also be required.

  28.  A parent or guardian who has consented to a child's placement for adoption, or whose child was placed under a placement order, needs the court's leave in order to oppose the making of an adoption order. Sub-clause 39(7) precludes the court from giving leave unless it is satisfied that there has been a change of circumstances. We think this restriction is unnecessary and undesirable. There may, for example, be grounds for opposing the particular adoption application. It would not look reasonable for a court to refuse a parent leave to oppose an application which the court itself was minded to refuse. Sub-clause 39(7) should be deleted.

  29.  Sub-clause 44(3)(a), like the existing law, defines consent as "consent given freely, unconditionally and with full understanding of what is involved". There is a problem with the word "freely". Whilst it is of course important that consent should not be obtained under duress or through improper pressure, it is not the experience of most parents that they are in a position to consent "freely". Almost invariably, their perception is that they are left by force of circumstances with no alternative. They therefore find it very difficult to sign a form which requires them to state that their consent is given freely. The word "freely" should be replaced by a phrase which more tightly defines an absence of improper pressure of duress.

Parental responsibility for prospective adopters

  30.  Sub-clause 22(3) gives parental responsibility to prospective adopters while the child is placed with them. We believe that it is not appropriate to give parental responsibility to prospective adopters. The agency is empowered to remove the child from them, and they are legally free to hand the child back to the agency. This does not accord with the carrying of parental responsibility in other circumstances. It would also constitute the only situation in which a local authority or a voluntary organisation would have the power, without reference to a court, to confer parental responsibility.

Refusal of Adoption Orders

  31.  Unlike current legislation, the Bill does not say what happens to the child if the court refuses an application for an adoption order. This gap needs to be filled.

The status conferred by adoption

  32.  Sub-clause 51(1) provides that an adopted person is to be treated in law as if born as a child of the adopter's marriage, or, in the case of sole adopters, as if born to the adopter in wedlock. This archaic provision was probably initially intended in part to make sure that adopted children were not treated as illegitimate. The wording is not in accordance with the facts. Adopted children are not born to their adopters and adopters are discouraged from thinking of them and treating them as if they were. The importance for the child of knowing that she or he is adopted and of knowing about his or her life history before adoption has been recognised for many years, and a clause which implies that in law these things are different is most unhelpful. It would be preferable if the clause were to say that the law treats an adopted person in the same way as it treats a child of the adopters' marriage. This would at least get rid of the "as if" wording which so unhelpfully implies a legal pretence or fiction which is at odds with the facts.

  33.  In sub-clause 51(2) it should be made clear that, although adopted persons are to be treated in law as not being the children of anyone except their adopters, that does not mean that they are to be treated as never having been the child of their birth parents.

The adoption of step-children, and parents' adoption of their own children

  34.  Sub-clause 43(2)(a) is a welcome improvement on the present law, making it possible for a step-parent to make a sole application to adopt a step-child. At present both spouses have to make a joint application, with the effect that one of them, usually the woman, has to adopt her own child. As the Minister of State (Mr Hutton) said in the Second Reading debate, "that is frankly ridiculous". Yet the present option of a joint application is retained in the Bill as sub-clause 42(2). There was a time when it was not uncommon for an unmarried mother (as she would then have been referred to) to apply to adopt her own child, in order to spark the child the stigma of illegitimacy, but, fortunately, there is no longer a case for adoptions of that kind. It is now time not only to provide a new framework for the adoption of step-children, but also to remove all options for parents to adopt their own children. This requires the deletion of sub-clause 42(2) and a new provision debarring parents from applying to adopt their own children.

  35.  The Bill also introduces, in Clause 92, a new provision enabling a step-parent to acquire parental responsibility for a step-child, either by agreement or under a court order. This welcome development (which provides an alternative to custodianship for step-parents which the Children Act 1989 unaccountably abolished) will normally be preferable to adoption for step-children, as in most cases it is not desirable in the child's interest to sever totally the legal relationship between the child and one of his parents. This principle was expressed in the Children Act 1975 in relation to custodianship, but the present Bill treats parental responsibility and adoption for step-parents as wholly unrelated issues, and the court is given no power to make a parental responsibility order in adoption proceedings. A new clause is needed to the effect that the court shall treat an application for an adoption order by a step-parent as an application for a parental responsibility order unless satisfied that an adoption order would serve the child's interests better than a parental responsibility order.

Special guardianship

  36.  Clause 94 amends the Children Act 1989 to create special guardianship. We very much welcome this new alternative status enabling people to be legally recognised as children's permanent substitute parents without totally extinguishing the legal status of their birth parents. The Bill does not satisfactorily set out continuing responsibilities of local authorities towards children who move from being "looked after" to acquiring special guardians. Clause 94(5) seems to entitle them to leaving care services, but there is no similar entitlement to services before they reach the age of 16. It could of course, be argued that the local authority's general family support duties under Part III of the Children Act should be sufficient, but this argument is not advanced in relation to adoption, where Clause 3 of the Bill lays down a duty to provide post-adoption services. Similar services should be available for special guardians, the children whose guardians they are, and those children's birth relatives, and a new section is therefore required in the Children Act 1989, paralleling clause 3 of the Bill.

  37.  There will often be a need to pay a special guardian's allowance, and provision for this is needed. It must be more robust than the unsatisfactory provisions under which local authorities now pay, or do not pay, residence order allowances to former foster carers.

  38.  We have some concern about the proposed new s14C(1)(b) in the Children Act, which entitles special guardians to exercise parental responsibility to the exclusion of parents. This may be too all-embracing. Alternatives may be to specify rights and responsibilities in more detail in the Bill or to provide that this entitlement may be modified by provisions made in the particular special guardianship order. (The proposed new s14E(4) already states that a special guardianship order may contain provisions which are to have effect for a specified period.)

  39.  In many modern adoptions, adopted children have continuing contact with a birth parent who remains a significant figure in their lives. Special guardianship provides a legal framework which corresponds better than adoption law to the reality of these adoptions. We therefore hope that special guardianship will become a very significant alternative to adoption, and that it will be public policy to encourage its use. It would therefore be appropriate to introduce into the Bill a requirement that a court hearing an application for an adoption order shall treat it as an application for special guardianship unless satisfied that an adoption order will better serve the child's welfare.

Further recommendations for the Review of Adoption Law

  40.  There are several other recommendations in the Review of Adoption Law which should be enacted in the Bill. They include:

    —  the legislative framework should underline a child's right to know that he or she is adopted;

    —  a court hearing an application for a placement order or an adoption order should have a duty to consider making a contact order; and

    —  parents should have a right to attach an explanatory statement to their consent.

April 2001

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