James Paton: I think that, as I said at the beginning, the Government believe that the proposals are broadly right, largely for the reasons that the adoption law review set out: the increased chance of providing stability and security in the joint adoption of a child when there has been a legally recognised public commitment between the two partners. However, again, as the Secretary of State said, we shall be interested to hear views at the Committee and it is right that there should be a debate on the matter.
Mr. Dawson: Given that view, is there not a gross inconsistency in special guardianship, which confers parental responsibility and is, therefore, a significant option for permanency, being open to unmarried couples?
James Paton: I do not believe that there is. First, special guardianship is clearly not adoption. Adoption is a complete legal transfer from one family to another; special guardianship retains the legal link with the birth parents, who retain parental responsibility. Secondly, adoption is irrevocable, whereas a special guardianship order can be revoked. It is a different order of legal permanence and security, so I do not believe that a direct analogy can be drawn with a transfer of parental responsibility.
Mr. Djanogly: One thing that has come out of this exchange is that I am slightly concerned that we do not know what special guardianship involves in the round. The matter arose in relation to inheritance law, for instance. Might it not be helpful if a paper were prepared identifying the different areas that must be considered? We could then consider whether it is appropriate that inheritance, for example, should be addressed in the provisions. We do not really know. This is a whole new area.
The Chairman: Do you want to respond to that point, Mr. Paton? Is it possible to give further information to the Committee on that areaby Friday, perhaps?
James Paton: Of course that is possible. I am quite happy to give a fuller explanation of what special guardianship involvesthat would be valuable. This is a new area, which I am conscious the Committee did not have a chance to get into in detail because of the general election. We are interested in people's views on it, so we will certainly provide you with that.
The Chairman: We should be very grateful.
Mr. Jonathan Shaw (Chatham and Aylesford): On the registration of private fostering, is the Department satisfied that schedule 7 of the Children Act provides satisfactory protection to children who are privately fostered?
Mark Ferrero: We acknowledge that the issue of private fostering is important and of concern. The difficulty lies in social services departments knowing that a private fostering situation exists.
Mr. Shaw: The Department of Health does not know how many children are privately fosteredit is estimated at 8,000 to 10,000so we do not know where they are or where they are living.
Mark Ferrero: We do not have reliable data. It is a very difficult area on which to get reliable data.
Mr. Shaw: The key test for legislation is whether it works. From what you have said, from the evidence that we have received and from my experience of working in a social services department, existing legislation does not work. Would you agree with that?
Mark Ferrero: The Children Act provides a framework of protection for children in the community and places duties on local social services departments to protect the interests and safety of children in their area. I assume that you are referring to the proposals in the report that was recently published by the British Agencies for Adoption and Fostering on private foster carers being registered. However, it is difficult to see what would make private foster carers register when they do not notify.
Mr. Shaw: It is not just BAAF that makes such comments; Sir William Utting's report and Lord Laming's reportin 1993, I thinkon the social services inspectorate say that also. The proposals are not new. On whether people would register if there were registration, as is proposed, one could ask the same about childminders. Has the Department considered the fact that we require childminders to register with Ofsted, but we do not have the same registration scheme for private fosterers? Children are looked after for part of the day by a childminder; privately fostered children are cared for for years, and nobody knows where they are.
Mark Ferrero: The critical point is that the local social services department knows that the arrangement has taken place. The legal framework currently requires private foster carers to notify their local authority that they have taken a child into their care. If the child leaves their care, they are required to notify the authority and say where the child has gone. The problem is one of professional and public awareness of the current legal framework. Once a local authority is aware that a child is in a private fostering arrangement, it has duties to visit the child on a regular basis and look after its safety. The critical point is to improve public and professional awareness of the duty to notify, and to make people aware of the offence that goes with the failure to notify.
Mr. Shaw: But that simply has not happened. I know that there have been publicity campaigns, such as a leaflet, but we have not seen an improvement. We are talking about a vulnerable group of children, so the issue must be about private foster carers notifying the local authority, which is not happening. Surely the state should be coming at this matter from the other way, too; it does so for childminding and day care, but not for private foster carers. Have you had a discussion with the Local Government Association about the mechanics of setting up a registration scheme?
Mark Ferrero: I do not honestly know the answer to that, but I am sure that I can get a note about it.
Mr. Dawson: Could you explain the problem to me? It seems that we are not talking about a vast number of children. Childminders are registered and the very informal arrangements of the past for looking after children have been brought under statutory requirements. What is the problem over private fostering?
Mark Ferrero: Essentially, we are dealing with private arrangements. There is a balance to be struck between a private arrangement and the role of the state in such circumstances. We have a legal framework in place that requires notification of these arrangements. However, we have still to raise general public awareness. We just referred to a leaflet that was aimed at professionals. It was aimed not only at social services professionals, but at all professionals that come into contact with children in the community, such as health care professionals and so on. We need to raise public consciousness of the need to notify a private fostering arrangement to the same level as it is on childminding. Everybody knows that the local authority has a legitimate role in childminding. There is not a good general public awareness of the need, the role and the responsibility of social services in private fostering cases.
To go back to the registration point, I still am not convinced that creating a registration arrangement would mean that more private foster carers would come forward to be registered. If they do not notify now, what in a registration scheme would make them come forward to register?
The Chairman: I am conscious that this is an important area, and there will be opportunities to pursue it later in Committee. May I thank our witnesses for their contributions, which have been most helpful? Mr. Paton, would you mind remaining at the Table, as last time, because, as you know, we like your company and appreciate your advice on technical points. Thank you very much, ladies and gentlemen.
The witnesses withdrew.
Memorandum from the British Agencies for AdoptionAnd Fostering
BAAF submitted evidence to the Special Select Committee on this Bill's predecessor and was also invited to give oral evidence before the Committee. We are pleased to have the opportunity to submit further evidence. This memorandum:
Draws the Committee's attention to concerns raised in the earlier evidence that remain unresolved, with additional information where appropriate
Welcomes improvements made to the Bill
Comments on matters newly introduced into the Bill
Considers the relationship between the Bill's provisions and the Children Act 1989
In terms of the evidence presented earlier, all of it remains relevant, except parts of paragraphs 11 and 12 of the Memorandum which dealt with dispensation of parental consent, placement for adoption and placement orders. We set out below (paragraph 3) our comments on the relevant provisions in the Bill as it now stands. The other main difference is that clause 110 of the Bill now makes provision for support services for children and families affected by special guardianship orders as advocated in paragraphs 13.2 and 13.3 of the earlier evidence
The two new matters commented on are clauses 53 - 62 and 76 concerning access to information and the amended provisions dealing with the Adoption & Children Act Register (clauses 115 - 119) and the payment of inter-agency fees.
2. CHANGES TO THE ADOPTION SUPPORT FRAMEWORKCLAUSES 2 - 4 AND 8
We welcome the fact that the Bill now provides for a wider group of people (peoplenot only childrenwho may be or have been adopted, birth parents and adoptive parents) to be entitled to adoption support services, and also the fact that these provisions are no longer restricted to cases of children adopted after implementation of the new legislation. Many of the other concerns raised in our previous evidence, however, remain. In particular, BAAF recommends that there should be a statutory duty on local authorities to provide the adoption support services that their assessment shows to be needed.
We also note the provision in clause 8 regarding adoption support agencies. The possibility of having registered agencies available to undertake limited tasks, such as the provision of counselling to adopted adults, has been canvassed in the past and we would in general support this. However we would seek further definition of the term ''adoption support agency''. Careful consideration is needed about the desirability of this proposal, as we are concerned lest relatively small self-help groups may be overwhelmed by the burden of registration.
3. PLACEMENT ORDERS AND DISPENSATION WITH PARENTAL CONSENT
a) Conditions for grant of placement orders
Changes to what is now clause 20 (clause 17 in the earlier Bill) address one important concern raised in our previous evidence. We note that under the new proposals only local authorities (not voluntary adoption agencies) will be able to apply for placement orders and a court will not be able to make an order unless either the child is already subject to a care order under section 31 of the Children Act 1989 or the court is satisfied that the conditions set out in section 31(2) of that Act (significant harm or likelihood of significant harm) are satisfied. This avoids the risk that children who had been accommodated by the local authority at their parents' requestperhaps initially because of some temporary family difficultymight become subject to placement orders against their parents' wishes and without even the section 31 grounds ever having been met.
We welcome the fact that this concern has been addressed. It may be however that the new framework goes too far in removing the right of a court to make a placement order with parental consent even if the section 31 grounds are not satisfied.
In a small number of cases where parents or perhaps a single mother, wish to relinquish a child for adoption, the agency is faced with a dilemma in that it knows that another family member, particularly perhaps a father without parental responsibility, would wish to oppose adoption, or because it is prevented by the mother's opposition from ascertaining the views of extended family members. This situation arose in the case of Re G  1FLR 646. In this case the mother requested her infant's adoption and refused to disclose the identity of the father, so that the local authority had no way of ascertaining his views or carrying out any kind of assessment to see whether it would be more appropriate for the child to be brought up by his father. In order to avoid the potential harm that would arise for the child if he was placed for adoption and then, only many months later, on the hearing of the adoption application the court were to direct that the father's views be ascertained and the placement be possibly disrupted, the local authority wished to test out the court's views in advance of placement. To do this they invoked the inherent jurisdiction of the High Court and sought a declaration as to the appropriateness of placing the child without making any contact with the father. The President of the Family Division commended this course of action. The framework of the Children Act 1989 limits the circumstances where local authorities may invoke the inherent jurisdiction of the High Court.
BAAF recommends that the Bill should provide that a local authority may apply for a placement order with the consent of each parent or guardian with parental responsibility and thus seek the court's directions as to the involvement or otherwise of another parent or, say, grandparents.
b) Dispensation with parental consent
Although this change to placement orders removes one of our major concerns about the inadequacy of the grounds for dispensing with parental consent, it does not completely remove the problem. If the status of parents is to mean anything, it must surely mean that it makes a difference whether or not they agree to adoption. If they do agree, the court and the agency must take into account all the matters set out in clause 1, including the parents' views, and the court must not, by virtue of clause 1(6) make any order under the Adoption and Children Act unless it considers that making the order would be better for the child than not doing so. In other words, the court must not make an adoption order unless the child's welfare requires it. If on the other hand the parents do not consent, the court must again take into account all the matters listed in clause 1, including the parents' opposition, but clause 50 provides that it may dispense with parental consent ''if the child's welfare requires it.'' It is hard to see therefore that the Bill makes any real distinction between the situation where the parents consent and that where they disagree. If the requirement for parental consent is to have any meaning, then the test for dispensing with it must have some content which acknowledges a different between cases where consent is forthcoming and those where it is not. Without this it is questionable whether the ''proportionality'' required under the European Convention is satisfiedi.e. that the adoption (a major infringement of the parents right to family life under article 8 of the Convention) is ''necessary in a democratic society''. We are still inclined to favour the form of words suggested by the Adoption Law Review Team, that adoption would be so significantly better for the child than any other option as to justify overriding the parents' wishes. Another possibility might be to provide that parental consent could be dispensed with only if the court was satisfied that it would be impossible for the child's developmental needs to be met without an adoption order. (''Development'' is defined in the Children Act to mean ''physical, intellectual, emotional, social or behavioural development'', and the recently established framework for the assessment of children focuses on their developmental needs.)
4. ADOPTION BY MARRIED COUPLES OR SINGLE PEOPLE
We reiterate the concern expressed in our previous evidence (paragraph 9) at the failure to use this chance to amend the law by allowing two people living in a stable unionwhether heterosexual or homosexualto adopt. Since that evidence was presented, BAAF has commissioned a MORI poll on attitudes to adoption, chiefly with the object of refining recruitment initiatives. One of the questions asked was about the respondents' attitude to the restriction of adoption orders to married couples or single people. 68% of respondents expressed the view that unmarried couples living in a stable relationship should be allowed to adopt, and only 18% disagreed with this proposition (a copy of the relevant findings is attached at annex 1.) The idea of adoption agencies operating ''blanket bans'' on certain categories of would-be adopters is rightly condemned; this current restriction enshrines in the law a blanket ban of its own. The assessment process would, as it already does, focus on the strength and stability of the relationship between the two adults as a critical factor in the decision on approval, and the court would, as it does in any other case, still have the final say.
At a time when considerable debate is taking place both within and outside Parliament about the possibility of some form of registration of relationships outside marriage it would seem regrettable to draft adoption legislation in such a way as to exclude the possibility of permitting couples whose unions were registered to apply jointly for adoption.
BAAF strongly recommends that the Bill should allow for unmarried couples to make a joint legal commitment to a child through adoption.
5. REGISTRATION OF PRIVATE FOSTERING
Again we would repeat our plea that this opportunity should be seized to protect a highly vulnerable group of children by legislation for the registration of private foster carers. Since our previous evidence (see paragraph 15) BAAF has commissioned an investigative report on private fostering, to be published on November 12th. The executive summary of that report and the recommendations it contains are attached at annex 2.
BAAF strongly believes that legislation should require local authorities to maintain a register of approved private foster carers.
6. DISCLOSURE OF INFORMATION ABOUT A PERSON'S ADOPTION CLAUSES 53 - 62 AND 76
We have very serious concerns about these clauses as currently drafted. Not only are they enormously complex but they establish an extremely prescriptive framework which is likely to prove unhelpful in practice. Restrictions on disclosure of information are, for the first time, supported by a criminal sanction imposed on voluntary adoption agencies which disclose information contrary to the regulations made under these provisions. Most seriously of all, in our view, the provisions in clause 58 would make it impossible for adoption agencies to disclose to an adopted adult the information needed to enable him or her to obtain a copy of their original birth certificate if the birth parent had made an objection to the disclosure of this information, thus reversing the right introduced in the Children Act 1975 for an adopted adult to obtain their original birth certificate. The denial of this right would also deny the adopted person the opportunity to have their name entered on the Adoption Contact Register (clause 77) indicating.
It would not be putting it too strongly to say that there is consternation among BAAF's member agencies and others at this proposed change. Although the PIU report pointed to inconsistencies between agencies in the provision of information, there was never any suggestion that the law should be amended to restrict access to birth record information for adopted adults. It is almost exactly 26 years since the law was changed in England and Wales to give adopted adults the right to obtain their original birth certificate. That change was introduced following widespread consultation and debate, and although during the parliamentary debate on the proposals concerns were expressed that birth parents would suffer distress and embarrassment if their adopted children suddenly approached them, in practice these fears have not been realised. Not only have adopted people who have taken advantage of the right to obtain information greatly valued this, but there is no clear evidence that parents have in fact been disturbed or upset even when approached for direct contact by their adopted child. The majority in fact have welcomed such an approach, although it is of course preferable for any approach to be made through an intermediary.
In the light of this it is somewhat hard to understand what has led to the inclusion on the new provisions in the Bill. It may be that these provisions arise out of an attempt to fit these disclosure arrangements into the framework of the Data Protection Act. This of course in principle allows individuals to see information about themselves held by public bodies and restricts disclosure of information to third parties. In certain circumstances it does permit the disclosure of third party information or, by preference, the disclosure of information without disclosing the identity of the third party to whom it relates. The difficulty is that this framework is not well suited to family relationships. The birth of a child is not information belonging only to the child, the mother, or the father. The law requires the birth to be registered in a statutory register to which the public have access, and most people are entitled to obtain a certified copy of the register entry relating to their own birth. An adopted person cannot obtain his or her original birth certificate without knowledge of his or her original name. The Children Act 1975 ensured that such information could be available to any adopted person who sought it. What is now proposed will disadvantage those (it may well be only a small number) whose parents choose to deny them the right to obtain the information.
BAAF strongly recommends that the right of adopted adults to have access to their original birth certificates should be retained.
7. THE ADOPTION AND CHILDREN ACT REGISTER
We welcome the addition of the provision enabling regulations to be made extending the use of the Register to other types of placement such as special guardianship. We also note with interest the provision of clause 116(3) which would permit the register provider, in accordance with regulations, to act as broker for the payment of interagency fees, and look forward to discussion of the detailed implications of this.
8. INTERCOUNTRY ADOPTION
We note that clause 80 extends the restrictions on bringing children into the country to include cases where the child has been adopted abroad but without the proper (UK) procedures being followed. We appreciate the intention behind this provision but the precise wording of the clause may require further consideration. Greater safeguards are in practice likely to be achieved by the exercise of great care by the Secretary of State in deciding which countries' adoptions may be specified as ''overseas adoptions'' under clause 83.
9. CONSISTENCY WITH THE CHILDREN ACT 1989
One of the objectives of this legislation, which we thoroughly applaud, is to bring adoption law into line with the Children Act 1989. Unfortunately, however, the Bill as currently drafted would leave some glaring inconsistencies with the Children Act framework. In particular these relate to the distortion of the Children Act framework covering children accommodated by the local authority under voluntary arrangements. Unlike the Children Act the provisions in the Bill:
vest parental responsibility in the local authority or adoption agency without any court order
vest parental responsibility in prospective adopters on placement without a court order
place severe restrictions on the right of the parent to remove the child from accommodationeven if the child has not yet been placed for adoption
authorise the local authority to retain a child against the parents' wishes if the local authority intends to apply for a placement order (whereas in similar circumstances under the Children Act the local authority would be required to apply for an emergency protection order).
There is also inconsistency in the provisions governing applications by foster carers for adoption orders and applications by foster carers for residence or special guardianship orders and this should be resolved.
A paper setting these points out in more detail is attached at annex 3.
Table 6 continued
Table 7 continued
A VERY PRIVATE PRACTICE
AN INVESTIGATION INTO PRIVATE FOSTERING
A Very Private Practice: An investigation into private fostering highlights the risks to which privately fostered children are exposed and provides powerful case materials. It sets out a programme for reform and urges that the Government acts urgently to ensure that these children are protected. Below, we provide the Executive Summary followed by BAAF's Programme for Reform.
The term ``private fostering'' is used to describe the situation when a child of up to 16 years of age (18 if disabled) is in the care of someone who is not his or her parent or relative for 28 days or more. A relative, under the Children Act 1989, is defined as grandparents, siblings, step-parents, aunts or uncles (i.e. brothers or sisters of the child's parents), or other persons with parental responsibility.
Some parents will always need to make use of private foster care. But the needs of their children for support, protection and a healthy physical and emotional development are no different from those of any other children.
Privately fostered children include children placed with strangers for lengthy periods, often while their parents pursue studies, work commitments or live overseas; adolescents who are temporarily estranged from their families; children who attend language schools and independent schools in the UK; children from abroad on holiday or exchange visits; children who are asylum seekers; and some children brought to the UK from overseas with a view to adoption.
As there is no register of private foster carers, families have to find these carers themselves. They may do this through word of mouth or informal networks. The Department of Health says that parents are responsible for ensuring that the people they place their children with are suitable. However, parents have no access to criminal record checks and most will have little understanding of the possible risks that their children face.
There is no accurate information about the numbers of children who are privately fostered. Current estimates suggest that 8 - 10,000 children are privately fostered in the UK, a significant majority of whom are black children of West African origin. The Department of Health ceased to collect statistics in 1990 on the grounds that they were meaningless.
The majority of privately fostered West African children live with white families, often in rural communities where the child will experience separation from his or her culture and may encounter racism. Many private foster carers have little understanding of the difficulties these children may face or the impact on them of separation from their birth families. The long-term effects can be a confusion about identity, relationship problems, underachievement, insecurity, poor development, and learning difficulties.
Some West African families have lost their children when they have been adopted by private foster carers or when children have become so detached from their parents to not want to, or be able to, return to them.
The Children Act 1989 introduced changes in England and Wales. These were to place a duty on both carer and birth parent to notify an intention to place a child in private foster care, and limiting the numbers of children whom a carer could foster to three. Despite these duties, it is generally accepted that the great majority of private fostering arrangements are never notified to the authorities.
Local authorities have fairly minimal responsibilities under the Children Act 1989. Essentially, they have to satisfy themselves about the welfare of the child; receive notification from parents, carers, and third parties; visit the child regularly and offer advice and support. They do not have the power to approve private foster carers and have only limited powers to prohibit a person from privately fostering.
The overwhelming majority of social services departments do not give any priority to privately fostered children. In many cases, no services are provided in the belief that there are no such children within the authority's boundaries. A few local authorities have developed good practice initiatives and have actively promoted services to meet the needs of privately fostered children in their area.
There is a dangerous inequality in the way that local authorities are charged to deal with those foster carers whom they recruit and register for children in the local authority's care and those who offer a private service. The statutory requirement and regulatory framework which apply to child minders who will look after children for part of the day, are much more rigorous than for children who can be separated from their parents for indefinite periods.
Sir William Utting, in his review of the safeguards for children living away from home (1997), said that there were three options: to leave things as they were; to deregulate on the basis that what existed was unenforceable; or to enforce regulation and introduce a requirement to approve and register private foster carers because of the risk to children. He said that the status quo was `the worst of all worlds as it seems to give the appearance of safeguards while in practice they are not complied with'. Deregulation would `abandon children to their fate' and create a ``honeypot'' for abusers'. He recommended that private foster carers should be approved in the same way as other foster carers.
The recommendations for change made by Sir William Utting in his reportwhich was commissioned by Governmentwere rejected in 1998. Almost all Utting's other recommendations were accepted by Government. The UK Joint Working Party on Foster Care in their report in 1999 referred to the `high potential for abuse and neglect` and urged legislation requiring local authorities to maintain a register of approved private foster carers at the earliest opportunity. The Government instead promised a public awareness campaign which would take place in 1999. The only ``campaign'' to date has been a distribution of leaflets to professionals and letters to Directors reminding them of their responsibilities.
BAAF's investigative report, written by Terry Philpot, highlights graphically the risks to which privately fostered children are exposed, providing powerful case study material and making urgent recommendations for Government actions to ensure these children are protected.
In 2001, Victoria Climbie, a privately fostered child, died tragically at the hands of her carer and her carer's partner.
A programme for reform
ACTION FOR CENTRAL GOVERNMENT
1. Legislation should be introduced to require local authorities to maintain a register of private foster carers within their area who are approved as suitable. This register would be available to birth parents who wished to make arrangements for their child. It should be possible for a private foster carer to be registered as generally available or alternatively to be approved for a specific child already known to them in the same way that foster carers can be approved to foster a specific child.
2. It should be an offence to foster a child privately if the carer is unregistered or to place a child with an unregistered carer.
3. Each local authority should be required to make an annual statistical return to the Department of Health detailing the number of private foster carers registered, the numbers deregistered, and the number of placements in its area.
4. Standards should be published by the Department of Health with the criteria against which private foster carers should be assessed for registration. These should be based on current standards for childminders and include elements of the National Standards for Foster Care.
5. The National Care Standards Commission should be required to inspect the private fostering service of Local Authorities in England and Wales as already required in Scotland.
6. The children Act 1989 should be amended to make explicit that the stipulation of 28 days as the period after which the child is deemed to be privately fostered need not be continuous.
7. Each local authority should be required to appoint a designated social work manager with specific responsibility for private fostering overall.
8. Local authorities should have a statutory duty to provide counselling and advice to birth parents considering having their child privately fostered.
9. The local authority should have a duty to offer support to young people who were in private foster care three months before their 16th birthday.
10. Private foster carers who have children removed from their care by the Local Authority should be notified to the Protection of Children Act List.
11. The Government should have a continuing campaign, backing any efforts by local authorities, to inform professionals, birth parents and private foster carers of their legal responsibilities.
12. A Code of Practice should be published by the Department of Health to recognise the differing circumstances of children who are privately fostered, for example, those in host families when on vacation from independent schools; those attending summer schools; those in the UK for medical treatment.
13. Private fostering should be integral to all relevant government initiatives addressed at improving services for children, for example, the Quality Protects Programme.
Action by Local Authorities/Social Services Departments
1. Each authority should address private fostering specifically in its Children's Services Plan.
2. The principles of the Children Act 1989 - including the need to consider a child's religion, race, culture and language - should be incorporated in all local authority guidelines and policies on private fostering.
3. Local authorities should treat private foster carers as part of the spectrum of local childcare and ensure that they are supported and knowledgeable about assistance and benefits to which they may be entitled.
4. Private fostering arrangements should always be the subject of a written contract between parents and foster carers.
5. Written contracts should detail access by the child to the parents and local authorities should satisfy themselves that the amount of contact may allow the child to maintain an attachment to his or her parents. Local authorities should therefore bear in mind their duties under schedule 2 paragraph 10 of the Children Act, to promote contact between children in need living apart from their family and the family.
6. The local authority should satisfy itself that the care will be for a stated period although that can be extended by mutual consent of the parent and the carer. Parents should be informed, in detail and in writing, by the local authority of the possible consequences of private fostering for their children and their relationship with their children.
7. Local authorities that become aware of a private fostered child who has moved from another local authority area with his/her private carer should be required to inform their previous local authority.
8. A local authority which is aware of the intention of a private carer to move outside the area should inform the receiving authority.
9. Professionals, for example, GPs, Health Visitors, Teachers, Housing Officersshould have a duty to inform the social services department when they suspect a child is being privately fostered.
INCONSISTENCY WITH THE CHILDREN ACT 1989
One of the aims of the Bill is to align adoption law with the Children Act 1989. In a number of respects, however, it fails to achieve this. Indeed, in certain cases, it widens rather than diminishes inconsistencies between the two frameworks.
a) Adoption Placements by Consent
Clause 18 provides that an adoption agency is ``authorised'' to place a child for adoption when each parent or guardian has consented to placement (whether with a specific adoptive family, or with a family to be chosen by the agency). Such consent may in some cases be given when a child is already subject to a care order, but in other cases and, in particular, in the small number of cases where parents wish to relinquish an infant for adoption, the child will almost always be ''accommodated'' by the agency or local authority under the Children Act 1989. (For no obvious reason the Bill also provides that in any case where a child is ''authorised'' to be placed for adoption by a local authority, the child is to be ''treated'' as looked after by the local authority, even if he or she is not.)
The Children Act and the Regulations made under it provide a clear framework covering the ''accommodation'' of children, but the Bill departs from this framework in several respects if a child is accommodated and parents consent to placement for adoption. Section 20(8) of the Children Act makes it clear that where a child is accommodated by the local authority (this being an entirely voluntary arrangement) the parent is at liberty to remove the child from the accommodation whenever he or she wishes. (There is an exception where a parent with a residence order wishes the child to remain accommodated; in this situation the other parent may not remove the child). Section 20(8) of the Children Act is specifically excluded by clause 29(6) of the Bill. The effect of this is that if a parent consents to placement for adoption, but then changes her mind, she cannot remove the child. This applies even where the child has not yet been placed with prospective adopters. Furthermore, a parent who did remove a child would be committing an offence under clause 29(8) of the Bill. A parent in this position is required to notify the local authority or agency that she wishes the child returned., and they then, even if the child has not been placed with adopters, have up to 14 days to return the child. Where the child is not in an adoptive placement it is impossible to see any justification for this fortnight's delay. For some children, particularly older children, it might well be desirable to have time to prepare them for the move, and in many cases it may be helpful if the local authority have time to help the parent put in place necessary practical help, but this applies equally to all accommodated children. Where a parent requests the return of a child under s.20(8) of the Children Act, the local authority may be able to negotiate a delayed or phased return in the interests of the child, but this is, rightly, subject to the parents' agreement. The same should be true of children for whom consent to adoptive placement has been given and is then withdrawn, and the child is not yet placed for adoption.
Where a child has already been placed with prospective adopters by agreement, but no adoption or residence order application has been lodged at the court, clause 31 provides for the agency to give notice to the adoptive parents of the need to return the child. Again, the prospective adopters are given 14 days to comply, but when they do return the child, he or she must be immediately returned by the agency to the parents. Some time delay is probably justifiable where the child is already placed: the present adoption law provides for up to seven days in these circumstances. It is arguable however that 14 days is too long.
The above provisions are the more concerning when it is recalled that consent to placement for adoption (as opposed to consent to adoption) may be validly given by a mother within 6 weeks of the child's birth. It is quite unacceptable that a mother who, perhaps, 3 weeks after a child's birth, gave consent to placement, and two weeks later changed her mind, could be subject to criminal prosecution if she removed the child from its temporary foster placement.
b) Parental Responsibility
Under the Children Act parental responsibility is not usually conferred on a non-parent except by court order. The only existing exception to this is the appointment of a guardian to act after the death of a parent. (Under amendments to the Children Act in this Bill there will also be a power for a step parent to be given parental responsibility by agreement with the child's parents, but it is important to note that this parental responsibility is shared and the appointee is not put in a position to restrict the exercise of parental responsibility by the parents.) By clause 24 of the Bill, parental responsibility is given to the adoption agency not only on the making of a placement order by a court, but also by the mere fact of the parents' agreeing to placement for adoption, when no court will be involved. The same clause also provides that when the child is placed for adoption (whether under a placement order or by consent) the prospective adopters acquire parental responsibility. Again, this involves the granting of parental responsibility without reference to a court.
While the child is placed for adoption, parental responsibility will be shared by the agency, the parents and the prospective adopters but clause 24(4) gives the agency an unqualified power (subject only to the requirements of clause 1) to restrict the exercise of parental responsibility by both the parents and the prospective adopters. This contrasts with the position under the Children Act, where a local authority that has parental responsibility by virtue of a care order may determine the extent to which a parent or guardian may meet his or her parental responsibility for a child, but may not exercise this power unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.
When a placement order is made by a court, it is appropriate that parental responsibility should be given to the local authority concerned, but there is no reason why the wording of the Children Act (s.33(3) and (4)) should not apply in this situation exactly as it does under a care order. Where an agency is authorised to place a child for adoption with the consent of the parents, there is no need for parental responsibility to be vested in the agency; the situation is comparable to the placing of a child in accommodation under s.20 of the Children Act; the parent can of course, as would usually happen now, authorise the local authorityor the prospective adoptersto exercise certain aspects of parental responsibility such as consent to medical treatment.
These provisions regarding parental responsibility are even more inappropriate when it is seen that the combined effect of clauses 18(4) and 24(1) are to continue to vest parental responsibility in an adoption agency and in the prospective adopters where the child was placed for adoption by consent, but the consent is subsequently withdrawn.
c) Decision to apply for placement order
Clause 21 of the Bill sets out the circumstances in which a local authority must or may apply for a placement order. The circumstances under clause 21(1) are those where the child has been voluntarily accommodated by the local authority, or placed for adoption by agreement. The local authority must apply for a placement order if they consider that the child should be adopted, and that the conditions for a care order under s.31(2) of the Children Act are satisfied, and they are not ``authorised'' to place the child for adoptioni.e. that the consent of one or more parent or guardian to placement for adoption is not, or is no longer, forthcoming. This in itself is quite appropriate, but, by virtue of clause 29(2), as soon as the local authority falls under the duty to apply for a placement order (i.e.presumablyas soon as they are satisfied that the conditions under clause 21(1) exist, no one, including the child's parents may remove the child from the local authority accommodation without the leave of the court. This contrasts with the position under the Children Act where a local authority faced with a parent's desire to remove a child from accommodation when they think this will put the child at risk must apply for an emergency protection order. In this situation the onus is on the local authority to apply to the court to protect the child; under the Bill the onus is placed on the parent to apply to the court if they wish to have the child returned. This is reminiscent of the old ``parental rights'' resolutions prior to the Children Act, which were condemned by the European Court of Human Rights and the House of Commons Select Committee Report on children in care in 1984.
d) Foster Carers
Clause 41 provides that foster carers who seek to adopt need to have had the child living with them for at least a year before making the applicationbut this condition may be waived if the court gives leave. By contrast, s.9 of the Children Act, even as amended by this Bill (clause 108), provides that foster carers may, with the leave of the court, apply for a residence order if the child has lived with them for one yearbut they cannot even apply to the court for leave to make such an application within a shorter period unless the local authority agrees. By the provisions of clause 110 of this Bill, the same conditions apply to applications by local authority foster parents for special guardianship orders as to applications for residence orders. There clearly needs to be a consistent approach. Since the need to apply for the court's leave should provide sufficient restraint on unsuitable applications, it is suggested that the consent of the local authority to an application for leave under s.9(3) of the Children Act should be removed. This would provide the same framework for application for residence, special guardianship and adoption orders.
Memorandum from the Association of the Directors of Social Services
Members of the Association of Directors of Social Services (ADSS) warmly welcome the Adoption and Children Bill and the changes that have been made since the Bill was previously introduced to Parliament on 15 March 2001 in response to evidence submitted to the Select Committee at that time.
At present in England and Wales more children from public are placed for adoption than any other European country. There has been a significant increase in the number of children adopted from care, 3,067 in the year ending 31 March 2001, in comparison with 2,700 the previous year. This represents a 12% increase from the year ending 31 March 2000 and a 40% increase from the year ending 31 March 1999.
Considerable progress is also being made in attempts to reduce the length of time children are looked after before an adoption order is made: for the year ending 31 March 2001 this period was on average 2 years 9 months, down from 2 years 10 months the previous year.
This progress is particularly welcome in the light of the continuing complexity of placing such damaged children with adoptive families.
There is a need for intensive preparation and care in placing children for adoption today, given the relatively few children who are relinquished for adoption, and that the majority have endured very damaging experiences which are likely to have life long implications for them and their families. It is also important to recognise that the adoption process must go at the child's pace; for older children it may take many months to prepare them for adoption, a process which cannot begin in earnest until after the outcome of care proceedings.
2. ADOPTION SUPPORT FRAMEWORK
The Association welcomes the extension of entitlement to adoption support services for those who may be or have been adopted, birth parents and adoptive parents. The Association regards the development of adoption support services as an important major initiative. We note that the new provisions are retrospective, and recognise that people do not necessarily seek help immediately after the making of an adoption order, and that their need may arise several years later. However the financial consequences of these provisions have to be faced so that we can ensure that adoptive parents, birth parents and children get the support they need whether it be from health, education, or the 24 hour response that has proved so successful in the fostering world.
3. ADOPTION BY MARRIED COUPLES OR SINGLE PEOPLE
The Association would respectfully recommend that further consideration is given to enable unmarried couples to make a joint legal commitment to a child through adoption.
4. DISCLOSURE OF INFORMATION ABOUT A PERSON'S ADOPTION
The Association recognises the extraordinarily difficult task of finding a balance between the rights of birth parents who request that identifying information is withheld from their adopted child, and the need of an adopted person to obtain further information. There are a small number of cases where a member of the birth family may be at significant risk if that information were disclosed because an adopted person expresses a wish to seek revenge for early abuse suffered at the hands of birth parents. There are also a few cases where the adopted person may place themselves at risk by attempting to trace their birth parent(s). It is fully acknowledged that these examples are both extreme and few in number. However it is important to recognise that the majority of children now being placed for adoption come through the court arena, many of whom have been physically, emotionally or sexually abused or neglected, or a combination of all of these factors, which suggests that the potential for similar extreme examples is likely to increase in the future.
It is also important to recognise the ease with which individuals are now able to trace birth families via the Internet, an increasing number of whom are seeking to do so without the benefit of counselling.
The new provisions enable every individual involved in a person's adoption the right to express their wishes about the sensitivity of information that identifies them, yet gives adoption agencies the discretion in exceptional circumstances to determine whether to override a decision to withhold or disclose identifying information.
In the vast majority of adoptions taking place very successful arrangements are made for the exchange of information between adoptive and birth parents as the child grows up. Yet it is for the minority of more problematic cases where safeguards need to be in place. On balance we would support the new proposals.
5. INTERCOUNTRY ADOPTION
The Association welcomes tighter controls on intercountry adoption and tougher penalties on those seeking to circumvent proper procedures. Very careful consideration needs to be given as to which countries' adoptions will be brought within the definition of clause 83, bearing in mind the experience accumulated in respect of intercountry adoptions over the past decade.
6. REGISTRATION OF PRIVATE FOSTERING
The Association believes that no opportunity should be lost to protect this particularly vulnerable group of children. In recognition of some recent high profile cases, we would respectfully suggest that there is a need to put in place legislation for the registration of private foster carers. Privately fostered children can be amongst the most vulnerable children in society, without adequate regulation, and separated from their families and often living in a different culture. At the least we would support the establishment of a local authority held register of properly approved private foster parents but believe that the Committee should consider whether legislation should be amended to reflect a category of looked after children whose parents are unable to care for them for a specific reason.
The Association respectfully suggests that there are very significant financial implications for local authorities in trying to comply with the requirements and expectations contained within this Bill. Local authorities will not be in a position to meet these requirements unless sufficient funding is provided by Central Government. In addition local authorities are all faced with a serious shortfall of trained social workers to undertake the work which is expected of us.
Chair of ADSS Children & Families Committee
Memorandum from the Local Government Association
This briefing outlines the key issues for local government in the adoption and children bill. The bill sets out a range of proposals to improve the adoption service, which will continue to be provided by local authorities, making the welfare of the child paramount and avoiding delay. It builds upon measures set out in the white paper Adoptiona new approach and in the Bill introduced in the last session.
As the national voice for local communities, the LGA speaks for nearly 500 local authorities, representing over 50 million people and spending £65 billion a year on local services. The LGA has been established to promote the case for democratic local communities which are prosperous, safe, healthy and environmentally sustainable, and which provide equality of opportunity for all.
Social services authorities provide adoption and permanence services in accordance with the Adoption Act 1976 and the Children Act 1989. The LGA welcomes the Adoption and Children Bill and is committed to improving the quality of life for children and young people for whom adoption is the best plan. Local authorities have a key role in finding permanent families for children who cannot live with their birth families. Local authorities also provide services to step parents wishing to adopt, and to those adopting from abroad. Local authorities are increasing the proportion of looked after children adoptedfrom 2,000 to 2,700 in 1999-2000. Local authorities with Public Service Agreements have set themselves stretching targets to achieve on adoption.
It is vital that the new duties for local government are adequately resourced, and that targets and standards are realistic and achievable. Much of the detail will be left to regulation and guidance e.g. adoption allowances. These are not simply technical matters and we seek assurances that there will be proper time for consultation.
CHANGES FROM THE EARLIER BILL
stronger measures to stop people wishing to adopt from overseas from avoiding the proper assessment and approval procedures, plus tougher penalties if they attempt to get around the safeguards. The measures extend to include children who have been adopted overseas.
more improvements to adoption support services, available to a wider group of people, including birth parents, with a new registration system to ensure quality
changes to the placement order provisions to ensure the Bill is closely aligned with the Children Act
opening adoption support services up to a wider range of providers, who don't have to be adoption agencies
a new more consistent approach on access to information held in adoption agency records to ensure that the release of this sensitive information about adopted people and birth families takes account of their views wherever possible.
a duty for local councils to make adoption support services available for special guardians
Other key provisions in the Bill include:
changing the law to ensure the needs of children are at the heart of the adoption process
giving all adoptive families a new right to an assessment for adoption support
placing a clear duty on local authorities in England and Wales to maintain an adoption support service
establishing a new independent review mechanism for prospective adopters who feel they have been turned down unfairly
legally underpinning the new Adoption Register for England and Wales to enable faster matches
allowing courts to set timetables to cut delays in adoption court cases.
introducing a more straightforward process for step-parents to acquire parental responsibility either through courts or with consent
introducing a new special guardianship order to provide security and permanence for children where adoption is not suitable
providing adopted people with consistent access to information about the background to their adoption
KEY ISSUES FOR LOCAL GOVERNMENT
Clause 1 Family Support and balance of rights
Clause 1 (4) (a) refers to having regard to the wishes and feelings of the child. Children should have the right to consent to adoption and to be made a party to the proceedings. The value of contingency, concurrent and parallel planning should be recognised in the Bill and in the adoption standards. (See attached example.) There are real concerns about targets which may rush agencies into placing children for adoption when the best plan, in accordance with the wishes of the child, may be to work with the birth family to enable them to care for their child. The Government's target is to increase by 40% (preferably by 50%) the number of looked after children adopted and in legally secure placements. The objective is families for life but failed adoption is a catastrophic disaster for the child, which will scar for life.
There should be a clear link to case law under the European Convention on Human Rights and the Human Rights Act. A higher threshold should be applied to removing a child from its birth family to be adopted than for the making of a care order. There must also be safeguards for children where contact with a violent parent is a serious child protection issue. The LGA also seeks good access to courts for families.
Clause 3 Maintenance of adoption services
Responsibilities of local authorities in providing a comprehensive adoption service are clarified.
Clause 4 A new duty to assess for and provide adoption support services
The bill sets out a right for all adoptive families to be assessed for adoption support. We are pleased that the earlier Bill has been amended to recognise the need for pre as well as post adoption support. Adopters know what they want and expect support and joined up services, not just an assessment. All social services authorities will be expected to provide support, including financial support, planned jointly with local education authorities and the NHS. The duty to review the child's plan and provide post adoption services continues after the child reaches 18 years. There will also be demand for LAs to give financial and other support for children who are and who have been the subject of the new special guardianship orders (Clause 94). Adoption support services are defined at clause 2 (6) as (a) counselling, advice and information in connection with adoption and (b) such other services as are specified in regulations (which may include financial support). There should be a direct reference to adoption allowances. Support is vital in promoting successful placements and preventing adoption breakdown and should encourage more potential adopters. However, the LGA is keen to ensure that there is adequate additional funding, particularly for adoption allowances.
Support from health, education and housing services
Clause 4(9) provides that a local authority which carries out an assessment and finds that there may be a need for provision of services by a health authority or local education authority, is required to notify the relevant authority. It is important that there be a duty on health and education authorities to comply with the request for services, perhaps in the context of the new National Service Framework for children. There should be specific reference to child and adolescent mental health services. Issues where adopted children are placed in different health and education authority areas from the originating and responsible social services authority need to be addressed. Children should not go to the bottom of a waiting list for health support and medical treatment as a result of moving from one health area to another. There will also be needs for assistance with housing and accommodation. It is essential that responsibilities and funding for supporting education and meeting special educational needs at all stages are clarified, especially post 16 and the role of Learning and Skills Councils.
We welcome the clarification of the duty of local authorities to provide services to birth parents, and their power to give support also to other birth family members, although there needs to be new funding for these services. Should this service extend to the provision of intermediary services to birth family members who are hoping to establish some contact with the adopted (adult) person? The Department of Health recently issued guidance to adoption agencies on the provision of such services, and we would welcome a commitment to put such guidance on a statutory footing.
Clause 12 Independent review mechanism
Provision of a review mechanism for potential adopters who feel that they have been turned down unfairly is supported. Adoption agencies should be consulted on the proposals for regulations. Funding must be available for agencies to meet costs incurred.
Clauses 17 to 28 Provisions for Placement for Adoption and Placement Orders
The introduction of placement orders to replace the current 'freeing for adoption' provisions is welcomed. These provisions are extremely complex and, although they have been improved since the earlier Bill, will need to be the subject of further consideration and consultation.
There should be consistency with the provisions of the Children Act on the vesting of parental responsibility, the rights of parents to remove the child from accommodation and applications by foster carers for adoption orders, residence orders or special guardianship orders. Why does the Bill provide that where a child is ``authorised'' to be placed for adoption by a local authority, the child is to be treated as looked after by the local authority, even if he/she is not?
Clause 47 Adoption by Married Couples or Single People
We ask the Government to consider allowing two adults in a stable long term relationship to adopt a child jointly. It is now estimated that 40% of children are born outside marriage, with many adults living in committed relationships but not in marriage. If joint adoption is restricted to married adults, the opportunity for children to find adoptive parents is reducedthere is already a shortage of adopters for many groups of children. Unmarried couples are deterred form adopting because they cannot apply jointly. Public opinion is in favour of change. BAAF commissioned a Mori Survey in September 2001, which showed that 68% of respondents supported joint adoption by unmarried couples in stable long-term relationships. The issue is not about equality for adults but about the need for children to have the lifelong legal relationship with those adults whom they regard as their parents. The Bill does provide that two adults living together may apply jointly for a special guardianship order but the lifelong security of an adoption order may be preferred.
Clauses 53 to 62
The clauses in the Bill relating to the sharing of information are extremely complex and require clarification. Clause 54(6) provides for information to be shared where agreement is reached. We hope that there will be an opportunity for birth parents to change their minds, where they have originally not wished to pass on information, and let the agency know that they are willing for information to be passed on. Agencies receive many health inquiries from adoptees. Unfortunately the proposals make the process worse for adopted adults as clause 55(5) of the 1976 Act will be repealed. The adoption agency will be the intermediary between adoptees and their birth families. We are not happy with the proposal that the adopted child would have to go to the adoption agency for their birth certificate instead of having direct access. The child should be treated as a child of the adoptive family but without pretending that they had not been born to another family. We recommend that the right of adopted adults to have access to their birth certificates should be retained.
We welcome the clarification of the duty of local authorities to provide services to birth parents, and their power to give support also to other birth family members, but there is nothing in the Bill indicating whether this service should extend to the provision of intermediary services to birth family members who are hoping to establish some contact with the adopted (adult) person. The Department of Health recently issued guidance to adoption agencies on the provision of such services, and we would welcome a commitment to put such guidance on a statutory footing.
Clauses 80 to 87
Sections 9 and 14 of the Adoption (Intercountry Aspects) Act 1999 came into force on 30 April 2001, placing a duty on councils to establish and maintain a service that covers both domestic and intercountry adoption. It is not clear what funding has been made available to cover these new duties. We fully agree that children should not be bought and sold and that there must be scrutiny of placements. (Clause 91)
Clause 115 Adoption and Children Register
The bill sets out measures to establish a national adoption register, which will hold details of all children waiting to be adopted and all approved adoptive families. The LGA supports measures which will help placement at the pace of the child. It is important to ensure that the national register works in tandem with local adoption consortia of local authorities and voluntary agencies. The consortia have the advantage of offering children local placements, which can mean stability and the maintenance of contact with family and friends and schooling. The LGA is pleased that there will be opportunities for local adoption before placement out of area. Requirements of the Human Rights Act and race relations legislation should be met. The high cost of inter-agency fees can be a barrier, particularly to smaller LAs in recruiting adoptive families to meet children's needs from voluntary agencies or other LAs. Such deterrents must be addressed. A mis-match is expected between children awaiting adoption and prospective adoptive families. Adoption agencies should be allowed to prioritise assessment for prospective adopters who are likely to meet the needs of the children who are waiting, especially harder to place children such as large sibling groups and those with severe disabilities and behavioural difficulties.
Registration of Private Foster Carers
We recommend implementation of the recommendation in Sir William Utting's Report concerning private foster children. This would require the local authority to maintain a register of approved private foster carers and make it an offence for a parent to place a child with foster carers who were not approved, or for carers not on the register to foster children. The Victoria Climbie tragedy highlights the need for control of private foster carers.
While we are pleased that adoption legislation is being brought up to date, thorough assessment will be need to be made of the funding requirements of the new adoption allowances, long-term and specialist support, additional support for new parents and birth families, recruitment and training of additional adoption workers and improved services and standards. There are over 4,000 adoptions a year nationally, including stepparent. Adoption services, especially adoption support, have been underfunded. The necessary investment was not made with the Adoption Act 1976 or the Children Act 1989. Implementation of the Adoption (Intercountry Aspects) Act 1999 should also be funded. It is very disappointing that the Government announced £66.5m over three years to secure sustained improvements in adoption services is not new money but had already been announced as part of the Quality Protects programme. Most authorities had already allocated the Quality Protects children's services special grant. New targets and standards should be realistic and achievable and be matched with resources. There are new duties in this Bill which must be funded with new money in additional to any hypothetical amounts in the Quality Protects programme.
EXAMPLE OF CONCURRENT PLANNING: BURY METROPOLITAN BOROUGH COUNCIL
There has been a long-standing partnership between Bury children's services and Manchester Adoption Society (MAS). MAS is piloting concurrent planning in England, with Bury as one of the local authority partners. The project began in 1998 and is being evaluated by the Thomas Coram Foundation. The Goodman Project builds on North American practice and recruits carers who can undertake both fostering and adoption tasks.
Children are selected for the Project in situations where there has been a great deal of social services involvement and major concerns about parents' abilities to meet children's needs. Children are assessed with the possibility of an adoption plan if rehabilitation fails. This has been effective in reducing the number of placements for children who go through this process. The involvement of senior members of the judiciary has been instrumental in improving outcomes for children. If parents are not able to improve their ability to meet the child's needs, plans are made concurrently for children to remain permanently with their foster carers. If rehabilitation is not assessed as feasible within the appropriate timescale for the child, the plan is made for adoption and the role of the carers changes.
In the first year, Bury has used the Project for babies who have gone into adoption planning without having to have a change of placement. A new group of carers has been recruited and Bury looks forward to using the service for more children.
If you require further information please contact Dorothy Blatcher on 020 7664 3338 or email [email protected]
Felicity Collier, Chief Executive, British Agencies for Adoption and Fostering; Deborah Cullen, Legal Group Secretary, British Agencies for Adoption and Fostering; Moira Gibb, Director of Social Services, Royal Borough of Kensington and Chelsea; Meg Staples, Adoption Manager, Nottinghamshire county council; Councillor Maureen Rutter, Chair of the Local Government Association, Children Task Group and Mr. Andrew Christie, Assistant Director, London Borough of Hammersmith and Fulham, called in and examined.