Examination of witnesses (20-39)
TUESDAY 24 APRIL 2001
MR JAMES PATON, MR MARK FERRERO, MS SANDRA WALKER, MS DIANE SHEPHERD, MS AMANDA FINLAY AND MS KAY BIRCH
20. Could I ask a point which has always concerned me about the issue of the welfare principle. If one looks at the entire history of child care legislation, and Parliament has had a stab at this going back many, many years1933, 1948, 1969 and several since thenthe key issue has been attempting to get a balance between the welfare of the child and the rights of the natural family. As somebody, like one or two around the table, who has been involved in child care practice over many years, this is a real problem for social workers to get that balance right. Do you feel that this legislation is offering a better way to achieve that balance in law and in practice, than the previous legislation we have had? I ask that of all our witnesses, not just the Department of Health.
(Mr Paton) The intention is that that is the case. The idea that we should make it clear that the child's welfare is of paramount consideration, not just first consideration, does run through pretty strongly all the work done in reform of adoption law since the previous Government kicked this off in 1989. This has been pretty consistent all the way through. What we are trying to do is to make it clear in law that this does run all the way across and through the welfare checklist; and does look at, especially subsection (4), and does contain a very broad number of factors, including those touching on the child's relationship with their birth family, with the views of their relatives, and their relatives' capacity to provide a home and nurturing environment for that child, and does make those wider links we are talking about, about balancing the interests of the birth family. What it says is that it should be looked at fundamentally from the child's point of view, with their welfare as the central consideration. I think that is the philosophy that the Government is trying to push forward in this legislation, and was at the heart of the policy programme in the White Paper.
(Ms Finlay) I think James has set it out admirably, and the welfare checklist makes that clear in the way it sets out things which have to be taken into account. If you look at thatyou find you do need to look at the relationship the child has with relatives and other members of the family, because that is something which we know is important to children later on. It is right that it should be taken into account that the child's welfare is paramount.
21. You feel we have achieved a balance as best we can?
(Ms Finlay) That is the intention. I think the courts are very alive to this. In particular, they are using the jurisprudence of the European Convention on Human Rights which also puts the child's welfare as of paramount concern.
22. I suppose at the end of the day it is often a consideration of what the child's welfare is about. 15 or 20 years ago when I was an adoption worker, at that time there was a very, very strong emphasis on matching children from ethnic backgrounds, even though they may be a quarter Afro-Caribbean, with families who were similar. At that time it was the belief that that was overwhelmingly in the child's interest, and it was a paramount factor and that was how it was practised at the time. It may have changed nowI am sure it has. I think the point we are simply making herebecause of the sensitivities arising from that era, because you placed that particular consideration almost as a separate point, because under (4) when you have done your checklist you have done a number of things (and this may be undue sensitivity on my behalf) it seems to give it a priority and consideration which you have not accorded to the other items on the welfare checklist. What we are trying to do is to receive some assurance that, of course, that must be a consideration (and nobody would dream of saying that it should not be), but what we should never end up with is being in the position of children remaining in care and remaining in children's homes because we cannot find the right ethnic match for them. We are just not sure whether the legislation as it is drafted makes that clear enough, that that is the actual intention.
(Mr Paton) I think the intention is to try and set out the range of considerations that should apply in all decisions to do with adoption that courts of adoption agencies make, and that is what most of the clause does. Subsection (5) is concerned when adoption agencies are arranging placements for children, rather than in any decision they take. This focuses on the placement decision, and in that case, as Sandra said, it is a direct link with the equivalent provisions in the Children Act and it is about aligning the two bits of legislation. One can see Subsection (4) also picks up the child's characteristics and their background, and there is a degree of overlap. I think the point of Subsection (5) was to provide that alignment with the Children Act; their duties when they are placing children with foster carers or other placements under the Children Act, and when they are considering placements under adoption, they are doing so in a congruent legal position. The intention is to create an alignment. I think legally the legislation does put it all on an equal footing, as you say. It does not prioritise one consideration above the other, precisely because it does talk about "due consideration" in the context of all the other factors that are relevant to any decision about adoption that have to apply to a court or adoption agency.
23. I just want to put a marker down at this stage, because in this first part in terms of the introduction to the Bill it says that the court or adoption agency must at all times bear in mind that any delay in coming to a decision is likely to prejudice a child's welfare. At the same time it is quite right it then expands on all the areas which should be looked at, including, very importantly raised by my colleague earlier, other relatives, grandparents who may be very difficult to find. That comes back to the issue: with all these good intentions, what sort of back-up is there in terms of resources and personnel to make it a quick process, but also one that is informed so that people really feel they have had a chance to take part, particularly if we are talking about relatives who may have been isolated for a number of years by the natural parents. It is all good intentions but, at the end of the day, I am sure if we went to a social services department or down to the local courts they might be saying, "Yes, that all sounds very good but at the moment, under the present rate of adoptions, we are finding it hard". If you are likely to increase the number of cases going through, how much harder is that going to be, and how are you going to meet that demand?
(Mr Paton) I think this comes down to the part primary legislation can play in setting the framework; and then it needs to be seen in the context of the other actions the Government is taking on adoptioninvesting in adoption and the number of adoption services in general.
(Mr Ferrero) I think that is quite right, and investing in social services generally as well. The Quality Protects Programme is a major source of funding over five years; nearly £900 million is the figure for that. Within that there is separate investment on adoption servicesto build up the sort of services that we want to see in the future; and the money I mentioned earlier to help with the training. I think there are a lot of levers coming into play here to actually help boost the standard of services generally. I would come back to the point I made earlier about some councils perform significantly better than others already, and about raising the standards of the worst to the standards of the best. That does involve identifying what the best practice is; what local recruitment strategies yield the best result for adopters for the local population of looked-after children, for example; and spreading best practice through the Task Force and in other ways.
Caroline Flint: It would be helpful to have some breakdown of the local authority situation, particularly types of local authority and the number of cases they are dealing with at any one time and how they are going about this to make it so much better and getting everyone to follow them.
24. I am not a lawyer but I wanted to be absolutely clear in my mindwhat you are effectively saying is that in Clause 1(3) under the welfare checklist you are talking about the decision to place a child for adoption, i.e. to take out a Placement Order. What you are saying is that the reason (5) is in is that you are actually talking about the child's placement itself rather than the decision to place for adoption?
(Mr Paton) Any general decision. This is a particular focus on a decision for placement and, as I say, it echoes the equivalent provision in the Children Act.
(Ms Walker) Section 22(5) of the Children Act applies to any decision that a local authority is making in the context of a looked-after child, it is not just limited to a decision as to where to place them.
25. So you have made a specific Clause in relation to adoption cases rather than a decision about what should happen to the child specifically in relation to adoption?
(Mr Paton) That is right. I think that was an approach which was broadly supported in the consultation on the Bill in 1996 and subsequently, with the kinds of concerns and caveats that Committee members have raised that that should not be the be-all and end-all and should not hold up the placement where it is in the child's interests.
26. Do you think that clause does need strengthening by referring again to "undue delay" as it is a specific clause in relation to placement?
(Mr Paton) I think this comes back to a point made earlier about the wording of "due consideration" and we will certainly look at this.
Chairman: Can we turn to the issue of support services.
27. We know there are differences between local authorities and local practice, and statistics are quoted about the number of childrenat the front end, as it werewho are placed. We also know that with older children there is a higher degree of a breakdown, which I think we all understand is extremely traumatic and damaging for that child and, to some extent, the adopters. Have you looked at statistics of when breakdown occurs? Where we see a high-performing authority, in terms of the front end, does it therefore follow that they will be backed up on breakdown? Or is it that there is a disproportionately higher number of young children who are easier to place? I would like some kind of information on that. Secondly, it seems to me that adoptive parents do not like to see themselves as part of a mainstream social service classfor understandable reasons, given that some of the children they are going to be adopting may be from abusive backgrounds. When developing services in support of adopters, the Bill talks about local authorities providing that support, but is it envisaged that might be done by an external agency? Secondly, it does not talk about health authorities in terms of child and adolescent health support. Would it extend to child and adolescent health support? Will there be guidance? At the moment I am advised by adoption workers in my area that support for adoptive parents is not amongst their priorities. Is that a national issue? Is it envisaged that the Secretary of State will make guidance a high priority? If we are talking about a programme that is modelled on joining up a local authority and the education and health authorities to support children in care, we need to be supporting adoptive parents and providing resources. I would be interested to hear what you think about that. It needs to be easily accessible for them but not necessarily part of mainstream social services.
(Mr Paton) I will try to deal with the three points in turn. First of all, your point about are those authorities that achieve high crude numbers of adoption or percentage rates the ones that deliver successful adoptions. The first thing to say is that research evidence on placement disruption downstream, as it werepost-adoptionis not something that is collected as a matter of routine. However, what we do have is information about those authorities where the adoptive placement disrupts before adoption takes place, which is a reasonable proxy, to some extent. We looked at that and what we discovered is that there is actually a positive dimension. Those authorities who place large numbers of children for adoption are also the authorities which quite strongly tend to have lower rates of placement disruption. So that would tend to support the kind of analysis that the PIU came out with, which is that where an authority is strong on its adoption service and planning for children it also tends to be doing the whole sha-bang. On your second point about provision of local authority adoption support services, I think the answer is very strongly "yes". A big theme of the White Paper is trying to make appropriate use of the strengths of, particularly, voluntary adoption agencies and the kind of innovative practice that they have produced. The Bill lays down a duty on local authorities to provide their service in co-operation with existing VAA services in their areas and the provisions around adoption support allow for the provision function to be delegated to voluntary adoption agencies. I think we would hope to see greater use by local authorities of the skills and expertise of the voluntary sector, because, again, this is one of the things to come out of looking at who are the successful authorities and why they are successful. The ones that tend to work quite closely in partnership with the voluntary sector and to pick up some of the best practice and innovation the voluntary sector has produced tend to be the better performers. That is why there is a strong voluntary organisation representation on the Adoption and Permanency Taskforce, to try and harness some of that expertise and see it spread more widely. Finally, your point about linking with the health service and, particularly, child and adolescent mental health services. I think one of the key points about the assessment for adoption support is that it should try and be a mechanism to join up these services. Clause 4 does particularly allow for an assessment of need for adoption support services to be carried out at the same time as an assessment for a range of other public services, including health needs and education. So we hope to use that legally as a mechanism to underpin multi-disciplinary assessments where the child has multiple needs which require inputs from a range of services. Also, looking at Clause 4(10), there is a specific provision there that if the local authority, through any of its work with adoptive families, thinks there is a need for other public services they can notify them. We do indeed intend, as the White Paper says, to back that up with guidance to education and health authorities to ensure that they are involved in the joint planning of post-adoption support services.
28. It is a higher priority for health authorities.
(Mr Paton) Precisely. It is about trying to bring it up the agenda and ensure there is proper involvement and sensitivity, because one of the other things we heard from adoptive families was not just that in some areas it did not register on the radar, as it were, and we have to fix that through guidance, but that, also, child and adolescent mental health services were not always necessarily attuned to the particular needs of adoptive families, as opposed to the kind of analysis they use for other families. Again, we hope that through the mechanism of joint planning there will be a greater linkage between services so that they become more sensitised to the particular needs of adoptive families.
29. It does seem to me that if people are going to have confidence to adopt children with all sorts of complexities, they need to be sure that they are going to get back-up. If, in particular areas, the word on the street is that "Well, so-and-so adopted and they did not see anyone, they kept ringing and no one helped them; so we have talked about it and we are not going to bother to approach the local authority"but if the word on the street is the opposite then we can move forward with confidence.
(Mr Paton) I think that is absolutely right. I think this comes back to what was said earlier about adoption having changed over the last 20 years, and the kind of children who are in the looked-after system that we would like to make greater use of adoption for, to allow people the confidence that they will be supported in helping to meet the needs of children and themselves.
(Mr Ferrero) Can I just add to that, picking up on your general point about is this about numbers or is this about quality of placement and lasting placement, it is probably worth reminding ourselves what the White Paper says in Chapter 4 about the Public Service Agreement target, which is "Yes, here is the target but this is about achieving the target without compromising on quality of placement" (this is on page 26), "so maintaining the current levels of adoptive placement stability". Also, paragraph 4.18 is talking about actually developing further targets that look at the long-term outcomes for the children that are placed for adoption to ensure that it is not just about an adoptive placement, it is about their life, really.
Chairman: If we have no more questions on support services, can we move to the independent review mechanism now?
30. The two seem to me to be fairly fundamental. The Government has made it clear that the National Adoption Register will be compulsory, which I think is welcome on all sides of the House. In fact, there would be very little point in having it if it was not compulsory. Perhaps the angle from which the ordinary back-bencher first comes to adoption is through the letters that come from aggrieved potential parents who have been turned downsomething which I think you touched on, Mr Ferrero, in your initial presentation. Really I have two questions on this. Sections 8 and 9 of the Bill have left out nearly all the details for regulation, for quite understandable reasons, but who do you envisage being on these panels? That is the first question. Secondly, at what stages of the process do you see appeals being possible? Would it simply be a question of appealing against being refused a place on the adoption register, or will there also be potential appeals on individual matching decisions?
(Mr Ferrero) I think let us get clear about the point that we are talking about in terms of review: when does that kick in? It is at the point where the agency is telling the applicant that they are minded to reject their application to be an adopter. At the moment there is a right to go back and make representations to the self-same panel to have it looked at again. What we are proposing is that at that stage there should be an alternative route for effective adopters to say "Actually, I do not want to go back to the same panel, I want to go to a freshly convened panel to have this looked at from start to finish again"de novo, as they say. That is the point in the process. So in terms of the national adoption register, the national adoption register will be only for approved adopters. So there is not actually a process about reviewing a decision whether or not somebody goes on the National Adoption Register; the decision is about whether or not they are going to be approved to be an adopter. That is that point. I think you asked who was going to be on the panels?
(Mr Ferrero) It will be a freshly convened panel that will need to comply with the regulations that govern adoption panels, so that they will need to have the same expertise but it should not be the same people that considered the case in the first place. They need to be new eyes, so new people. It is worth saying that in the White Paper we have given a clear commitment to have a root and branch review of the adopter assessment process to make sure that the way it has evolved over time and the current regulatory requirements that stipulate the numbers of people involved, what is the quorate level and so on, is actually what we want. We have not had that examination yet but we are committed to do that. So, in a sense, we are going to be having a look at this whole process from root and branch and start to finish again. However, for the purposes of establishing what the Bill does in terms of the right to review, it is at the point where the agency is writing to the prospective adopter to say "We are minded to turn you down on the advice we have had from the adoption panel" that they will have a new avenue for an independent and fresh look.
32. Those were two extremely clear answers. Could I make a quick observation on the second one, which is that I do hope your root and branch look at this will include a larger role for elected members. I understand that very often elected members only number one on the quite large panel, and occasionally there is a panel without an elected member. The main thing I would like to focus on is your first answer. Obviously, that review is something which seems extremely welcome. A lot of people have been pressing for it for a long time. The question I put to you is this: is there not a case, though, for also being able to review individual matching decisions under two circumstances? One circumstance is where a couple are actually fostering children already and they apply to adopt those very children. You will obviously be aware of the research which has been done on the policy of some councils. It does seem extraordinary that it should be possible for a council to refuse foster parents who have been allowed to look after children, in some cases perhaps for several years, what effectively amounts to a downgrading of the family's financial situation to make the extra sacrifice involved in adoption. Under the proposalswelcome as they arethat you have outlined, those foster parents would not be able to go for a review. The other circumstance where I put it to you it might be worth allowing independent review is where a couple have got on to the national register, they have been approved as adopters but they are turned down as unsuitable for a particular child despite the fact that over an extended period no other potential adopters have been found for that child. So could I ask you to comment on those two cases?
(Mr Ferrero) Let us take the case of the foster carer who wants to adopt. Just as an aside, I would remind you about what the national standards have said about how that process should be a bit quicker, thank you very much, for people who have already been approved to be a foster carer. We should not take so long about it. My understanding is that the position is that they do go through the full approval process to become adoptive parents, so would therefore have access to that review. If the agency was about to write to them and say "I am sorry, we are going to turn you down" then they would have access to the independent review of that decision.
33. Can I raise a practical question arising from a constituency issue I dealt with? I had a situation where out of three brothers two were placed in adoption and the third, who was younger, remained with the natural family but was then also placed for adoption but was placed, for various reasons, with another adoptive family. What position, under the review proposals, may the original adoptive family of the two other siblings have in respect of the decision to place the third elsewhere? This raises serious questions about the whole welfare principle. What struck me at the time (and I am talking about the previous arrangements under the guidelines, not the local authority arrangements) was that it seemed to me, at that stage, there was little ability to question and query the Guardian's role and performance in any individual case. I wonderand perhaps our colleagues from the Lord Chancellor's Department and Ms Shepherd might like to comment on thiswhether we would like to be able to raise questions about the practical recommendations, work and performance of individual social workers in this review mechanism.
(Mr Ferrero) I think there are two things I would say to that, but that is not the policy intention at the moment.
34. It might be at some future point if you fiddle around with this Bill.
(Mr Ferrero) I was going to say we might object to the "fiddling around". As I understand it, we have taken powers in this Bill to look at determinations. Our policy, at the moment, is in the White Paper and that is around the process of approval of adopters. As I said at the outset, this is probably the last time we are going to do this for another quarter of a century, so who knows where we might want to go in that time. As I understand it, I think the power might be there to look at other determinations, such as the ones you have described, but they are not policy at the moment.
35. I do not know whether Ms Finlay or Ms Shepherd want to respond on the general point. The checks and balances are there but it is a wider issue than the review mechanism as it stands. Should we look at widening that mechanism to include being able to question practice recommendations in individual cases?
(Ms Finlay) I think there is already scopeand my colleagues who are more expert than I will correct me if I am wrongfor birth parents to question decisions and to be involved in that decision-making process. What you are raising now, I think, is a much more complex situation where you have part of a birth family, two siblings, placed with one adoptive family who feel that it would be good for the siblings as a whole to be placed together. That is quite an unusual circumstance, and I am not sure, looking at it completely cold this morning, how that actually would fit into any review or appeal mechanism.
(Mr Ferrero) I wonder whether it is more to do with the social services complaints system.
36. The key thing is the Guardians, who would not be within the social services complaints system. Clearly the Bill may be amended to look at this issue and I would genuinely welcome your thoughts as to whether we may broaden out this mechanism to include this kind of area of concern.
(Ms Shepherd) I do not know the answer to that question. Obviously, there is a complaints procedure for Guardians. I am not sure about where it should link with the review mechanism at this stage. I would quite like to think about that.
37. That is perfectly acceptable. You may want to come back to us. Can I throw in another one, which I think at least Mr Paton will be prepared for because I raised it at second reading when we met informally a couple of weeks ago. That is, how this review mechanism of potential adopters will work when the refusal is based on confidential information given, for example, through medical examination or perhapsand I will not mention the case I raised before because colleagues are aware of itwhere medical information has come to light that raises questions about the relationship between two adoptive parents. In the case I mention, rightly, there were questions about it and they were turned down. Had they been told it would have caused difficulties to their marriage. I can think of situations, also, in cases I have dealt with and referred to at second reading, where the potential adopters, the applicants, give their best friends or relatives as referees and these referees come up with stuff that mean you cannot approve those people because they are deemed unsuitable by their own referees. In such circumstances, when these people come to review, what will happen? Will they be told point blank why they have been turned down?
(Mr Paton) I think these are really difficult areas that come up during the approval of adopters generally. The first think I would say is that we would not see the review mechanism operating in any different manner to how an initial panel operates. It is under the same constraints about confidentiality and proper process and the child's interests and welfare being key considerations.
38. Are we wrong in raising the expectations of people to think "Now we have got this review mechanism all this mystery that social workers get up to will suddenly be revealed"? What you are saying, in a sense, is that the new panel will come to the same conclusions as the original one.
(Mr Paton) You are right that it will not solve everyone's grievances because in those types of situations it is entirely appropriate, and there are reasons why, there cannot be absolute transparency as to the complaint. I think the review mechanisms intend to provide an extra assurance for people to feel confidence in the process, but there will still be situations as you describe. That is part and parcel of the difficult assessments being made.
39. I have a specific question on the review mechanism. I just wanted to clarify something. What effectively happens, as I understand it, is that a family applies to be adopters, the social worker will go out and make several visits, draw up the report, perhaps another social worker will go out and visit and that report, effectively, plus the references and the clearance on all the checks, forms the basis of what the original adoption panel looks at in arriving at a decision. Clearly, the recommendation of the social worker, as probably the only person on that panel who has ever met the adopters, is quite a powerful recommendation. Clearly, there are things that are so difficult that they come into the area of fact, but some of it also can be opinion. It is not beyond the bounds of possibility that on the margins of refusal the relationship of that particular social worker to that family is a pertinent point. However, if the review panel is simply going to review the situation based on the original assessment, in a sense maybe justice is not quite being done. There may be circumstances where potential adopters feel that is an issue and they feel that they want another social worker to do an assessment on them. Is that going to be possible?
(Mr Paton) I think the first thing to say is that the details of how the review mechanism will operate will be consulted on. The second point is the panel will be able not just to consider the documents that were produced and the reports which were produced but to consider any points or representations that the prospective adopters have put to them and hear from, for instance, in your case, the social worker involved. So say, for example, the prospective adopters had objected to the conduct of the social worker on particular questions that they had been asked, then the review panel would have available those points and would be able to question the social worker involved. So there would be some recourse to providing some assurance or challenges as to those allegations or points raised. So it is not just a case of looking at the same pieces of paper.