Examination of witnesses (40-59)
TUESDAY 24 APRIL 2001
MR JAMES PATON, MR MARK FERRERO, MS SANDRA WALKER, MS DIANE SHEPHERD, MS AMANDA FINLAY AND MS KAY BIRCH
40. It is, in effect, looking at the same pieces of paper.
(Mr Paton) Not just.
41. We should be quite clear about this. There are comments on the original pieces of paper so basically we are still looking at the same assessment.
(Mr Paton) That is not the current intention.
42. All I am asking is whether we should, perhaps, think about a failsafe mechanism where there may be a particular problem with assessment that is on the edges and it is to do with judgment rather than objective facts. The other thing is that the panel, I presume, is going to be convened from another authority; we are not going to use the same authority's panel.
(Mr Paton) The first thing I would say is absolutely, yes, we will consider that. The point is to consult on the detail of how this mechanism will work and that is why the regulatory powers in the Bill themselves are important. The intention is that it would be entirely independent of the original authority. That is almost the driving point of the model.
Mr Brazier: Just briefly, to reinforce Ann's point, it is a practical fact now that a number of couples have gone to neighbouring authorities and been successfully approved and have successfully adopted. There have been one or two high-profile cases of that. Even under the present arrangements, for people who are sufficiently articulate and know their way round the system particularly well and can afford the time and effort for it, there is a route to have a wholly separate assessment with a fresh social worker and everything else. For the new appeal mechanism to be meaningful, it must be willingnot in every case brought back because it maybe that a quick paper search at the beginning throws up medical evidence or whatever that rules somebody outin principle to go down that route, at the end of the day.
43. Was there any consideration at all given to giving the children the opportunity of an independent review? I am thinking they will have care plans and if these plans are not being fulfilled is there any consideration given that they should have the opportunity, too, of presenting their case to an independent body?
(Mr Paton) I think the first thing I would say is that the intention of this independent review mechanism is, as Mark described, to build confidence in the assessment process, because that was identified in the Prime Minister's review as a key area of concern for prospective adopters. That is where this proposal has developed from. I think, in terms of the voice of the child, that probably comes under the wider activity that the Government is taking in terms of providing a voice and involvement for looked-after children in all sorts of decisions about themselves, in terms of encouraging the use of child advocacy and the new children's rights director under the standards commission. So I think the voice of the child throughout the whole process is going more generally than the intention of the review mechanism.
Chairman: It does seem rather strange that in a welfare principle the one person at the centre of this does not have any review mechanism.
44. I feel very strongly on this issue. You know from second reading that this was raised and I argued that there were three sides to the triangle of adoption, that is the adopters, the adoptee and the birth family. You referred us earlier to Section 6.23 and 24independent reviewsbut, frankly, it is really sketchy in the White Paper. What is quite clear from our exchanges this morning is that, as you say, it is at a very early stage but it is absolutely vital to the working of this Bill. I have to register, as an opposition spokesman, that I am not particularly comfortable to have this picked off in the long grass as "guidance to be discussed" because I think this is critical to the success of this Bill, actually. I think quite a lot more work needs to be done. I think the connections must be made to the structures the Government has put in place, and there should be a very careful look at the different powers the Children's Commissioner has to the Children's Rights Director and linking that in in a really robust way. With respect, you have referred to the social services complaints procedure being used in respect of other dissatisfactions in relation to the process, but that is not sufficiently independent. One of the problems is that it is topped out in the end by the Director of Social Services of the department against which the complainant is making their criticism. So it is profoundly unsatisfactory for these other groups concerned. I do accept that if a review goes to a neighbouring authority that does introduce a degree of independence and people can be assessed quite differently by a neighbouring authority, but I am still left with a residue of dissatisfaction about that which, I think, can be cured by linking it in robustly to, at the top of the process, the Children's Commissioner. I would like to see a lot more work in this area before I would be comfortable with passing through a piece of legislation behind which we are assured it will all be sorted out afterwards.
(Mr Paton) I think the first thing to say is that the social services complaints procedure is currently under review, and the Government is considering what changes to make after an extensive review exercise last autumn. Secondly, there will be public consultation on the role of the Children's Rights Director later in the year. So, in a sense, I do not think this piece of legislation can reflect the changes that are made to both those that go wider than the remit of this Bill itself, but will range into local authority provision of adoption services. In a sense, the improvements that are made to those two will bite on the services that are being delivered under this Bill. The advantage of taking forward the independent review mechanism through consultation is precisely that we will be able to try and take account of the wider links in this area.
45. I was reading a research paper in the House of Commons which says that the Register is not going to cut across the work of the consortium where local authorities come togetherin my area, all four local authorities, two unitary and two county councils. That is quite a wide pool on which they can find prospective adopters for children in care. Do you agree that many authorities are going to be very reluctant, perhaps, to use the National Register and we will see a widening of consortium because the inter-agency fee runs at, I think, from a private agency if a local authority wants to use a family who have been approved by the private agency, £14,000 for one child and £21,000 for two children? It is an awful lot of money. One can obviously balance that against the costs of the children remaining in care. Nevertheless, I wonder whether there is potential for the National Register to become a white elephant. I know there will be limits, but there is this pressure on local authorities who have exhausted the consortium to then go to the National Adoption Register. What views do you take on these inter-agency fees? Is the National Adoption Register there to create work for the voluntary agencies? Do they approve lots of prospective adopters but they do not have many children? Devil's advocate.
(Mr Paton) The first thing to say is that the intention of the Register is to provide a national infrastructure, a wider pool and to help with the swift matching of children where a local authority is not able, within a reasonable period of time, to find a placement. I think we do want it to interact helpfully with both local authorities and with the consortium arrangements where they are in place, because in many situations it is best for a child to be placed in their own area or in a nearby area, to try and minimise the disruption. There may be circumstances where it is essential that they are not, but in the majority of cases it is. I think, in the way that we implement how the Register will operate, which as you will understand we are still developingsetting up the Register initially over the summer and taking forward how precisely it works with all the various organisations in the adoption fieldwe want to ensure that the incentives we create reinforce what we think are generally helpful links to local authorities in developing consortia arrangements for adoption services. We want to see the Register as a backstop, as it were, where if they are not able to find local placements or placements in their consortia arrangements within a reasonable period time then it is time for the register to kick in and suggest placements further afield. I think we would also want to leave it open for the authority to go there straight away if a child needs to be placed outside the area.
46. Can you clarify for me what is the vision in terms of new technology in the Register? It seems to me that unless it is going to be something whereby a social service department in a town hall, or whatever, can use an obviously restricted password and be able to go into it and say "I have a child", do a diagnostic exercise and get up from that an instant number of matches is not going to be worth much. I am interested in whether you are actually thinking about the software and technical back-up for that and, also, the cost of that and whether you have thought in terms of whether you would charge for access to this service.
(Mr Paton) I think these are broader issues in terms of how the Register operates but we have certainly been considering the current contractual arrangements about how data should be inputted. The point you made is right, we would want to harness how new technology is used, but we also need to recognise that local authorities do not start from an even base on this in terms of their own capacity. I think it is right to say that initially we would be thinking of physical data input for the Register; in other words, the authority sending off the form as they do with the current BAF link operation, but I think we would want to harness the technical element
47. I have to say I am really worried about what you are saying because it seems to me you are starting three paces back before you are even going forward. It does seem to me that if you are going to set up something that has got a future life and is going to be practical, then you have to get the technology right, to get away from files getting lost in the post and things like that. I am not saying, by the way, that computers are foolproof at all, but if you do not get that right and put the investment into making it work and actually saying, as a condition of, if you like, performance indicators of good service "town halls have to get their act together in terms of IT and technology" (and not just in this area but in a number of areas) you are starting with a very defeatist attitude. If I go into hospital these days with a stomach ache they use software to work out a diagnosis of whether it is appendicitis or I have got a bit of a tummy bug. Surely we should be getting to a situation whereby somebody sitting in that town hall can log in a child's needs to a specific programme and can get some real information back and start working on it straight away.
(Mr Paton) Maybe I was not clear in my answer. The matching process with the Register will be done electronically. So we are talking about a computer system at the Register. The point you are making about allowing people direct electronic access to it is a very strong one, and I think will be incorporated into the Register as it develops. The tension there is between getting the Register up and running rapidly because of the need that has been identified to have this piece of infrastructure put into place and having a system that operates on an entirely electronic basis. I think all we are talking about is a progression here, using a system that can be got up and running relatively rapidly and moving, over time, to more modern methods of sending the information from the local authority to the Register as the capacity develops outlets.
48. On the question of the Register, if you have somebody who, say, wants to adopt a Chinese childvery few come up for adoptionbut who also has relatives in Hong Kong looking out for a child to be adopted, how do you do that on Register? At the moment, they have to be interviewed here to go on our Register and to go on a register, say, linked to Hong Kong. So they have two Registrations and two lots of money. How are you going to bring that on the Register?
(Mr Ferrero) I am not sure I follow. I think the main thing to say about the register is that the idea for a National Adoption Register sprang from the PIU report which was meant to be a means of facilitating the placement of children who were looked after. That is the main role of the Register. It was never envisaged, I think, as a tool to aid inter-country adoption, if that is what you are suggesting.
49. It is slightly, but if they are already, say, on the Register to adopt somebody who is Chinese and none come up, and they also, say, have relatives who can adopt if somebody crops up, how are you going to link it in? Especially when we go from country to country?
(Mr Paton) I think we would want the Register to be regularly reviewing the status of the information that it has got on its books. If a family had indicated that they wished to adopt a child with particular characteristics and then that family either decides they no longer wish to adoptperhaps because, as you say, it has been successful in another countrythen you would put in place review mechanisms to ensure that they would no longer be active on the Register.
(Mr Ferrero) Can you tell us again? I am not quite sure we are with you on the question you are asking.
50. The case is a family who want to adopt a Chinese speaking child. They cannot have children, they want to adopt a Chinese child. No Chinese child comes up for adoption for two years, but they do have families in Hong Kong where children come up for adoption. They have already gone through the review and are on the adoption panel. Will there be any help given by the adoption procedure that has been gone through in this country to enable them to adopt a Chinese child with the information that they have got from the international register?
(Mr Ferrero) To be on the Register in the first place they have to be approved adopters. When you say a Chinese child, you could mean a child of Chinese birth heritage who is UK resident or you could mean a Chinese child from China. The approval process is slightly different to adopt a Chinese child from China than to adopt a child within the UK, but not radically different. It is essentially the same process. I think what you are asking is will the Register help them decide about where they want to meet their adoptee, whether it is from domestic adoption or from China. Is that what you are asking?
51. If, for example, there is nothing on our own Register, have you thought about any reciprocal links with other countries who have similar registers? In the same way that we have reciprocal arrangements for extradition or anything like this, there might be some links made up there.
(Mr Ferrero) Thank you, I understand now. I think the short answer is no, we have not thought about that dimension to the Register. We have focused particularly on the looked-after children population and domestic adoption. I am sorry it took so long to understand the question.
52. Coming back to cost, under the arrangements that have worked in the past, which is the consortium, effectively, part of the difficulty in using that for local authorities has not been the cost of accessing the Register, it is actually the cost of buying the placement, because the adoptive parent comes with a fee. Sometimes that fee is quite prohibitive. I was wondering if any consideration has been given to looking in the future to the use of the adoption Register with a flat-rate management fee by the local authorities?
(Mr Paton) Taking this back to the PIU report, I think the review team looked at the inter-agency fee issue because it was raised by several people as being a barrier. Turning back to something one of your colleagues raised earlier, when the review team spoke to those authorities that were successful in placing children their attitude was "We do pay the fee because of the knock-on savings in terms of the child continuing to be looked after", and the review team recommendation was that we should look at the financial management of local authorities to ensure they are making the right kind of trade-offs in terms of short-term fee cost versus the long-term gain from no longer having that child looked after. It was more a matter of developing its resources rather than the fee itself being a barrier. I think that how that interacts with the Register is that we are providing increased investment to help take forward the improvements in adoption, and we are also looking at running some pilot projects in terms of helping develop best practice about how local authorities manage their resources in order to make these effective trade-offs between payment now versus the long-term gain. I think we would still see fees flowing through the Register process to provide the kind of incentives to local authorities to continue to put effort into recruiting adopters when they may not have a child in their local area that is entirely suitable but there may be a child at the other end of the country who would benefit from placement with that family. So there does need to be a flow of resources that creates that incentive system. It was an issue we did look at in some detail.
Chairman: Can I suggest at this stage, we are running way behind in terms of the areas we want to cover. I am sure, Mr Paton, you have certainly earned a rest. I think it is about time we gave you a breather. What I want to propose is that we actually turn to look at the ares that particularly concern the Lord Chancellor's Department and CAFCASS and give you a few minutes off before we come back to you. I know you and your colleagues may be with us at future meetings whereas our other witnesses will not be. Can we turn to the issue of court timetables. Jonathan, you wanted to particularly look at this area.
53. Yes. First of all, can a placement order be made by a magistrates' court?
(Ms Birch) Yes.
54. At the moment, if a child care case is likely to last more than five days then it is transferred to the county courts, of which the delays of going to the county court are obvious. There are fewer judges than there are magistrates. Certainly in the area that I represent there are long, long delays in the county court process. Now I understand there is meant to be a system whereby if a case does not last or the judge feels that it is not going to last five days he or she should send that back to the magistrates' court. I wonder, have you looked into how many cases actually do not last the full five days, and this could actually be more speedily dealt with at the magistrates' court? I know it is not just a case of time, it is also complexity as well which comes into the equation. In my experience complexity and time go hand in hand.
(Ms Birch) Yes.
55. I wonder, we are wanting to speed up this process, should cases start, at the very least, in the magistrates' court with them having a view as to whether they can actually hear the case and how quickly they can hear the case and also how quickly this case can be heard at the county court? That decision perhaps needs to be taken at the same time. That is one question I have got for you. Secondly, in the case as it stands at the momentcan you tell me if I am wrongwhere a child has been placed for adoption some county courts are refusing to hear the adoption hearing so if, for example, a care order was placed in Leeds and the adoptive parents and the agency representing them are in Cornwall then the social workers and everyone has to go all the way up to Leeds rather than doing everything locally. That is about the use of resources and time, etc. I understand that is the stipulation within the Children Act, although some discretion is exercised by county courts and, indeed, magistrates. It is looking for some uniformity, perhaps there needs to be an amendment to this particular part of the Children Act. The third question I have got is under Section 25 and changing the names. It says that there are a few circumstances where the child's name cannot be changed to their prospective adopters or the adopter's family name until the actual order has been made, but I was wondering would there be circumstances in which a court would be agreeable to the name change when a placement order is made? I am thinking particularly of older children moving to a new area and starting a school. They start off as Bloggs and then the adoption order is issued and then they are Smith. That is not very helpful for anyone. I would like some comments on that, please.
(Ms Birch) Okay. If I could take the first of those two points and I am afraid Mr Paton will not get all his time off because the third point is relevant to him. If I can start off on the issue about the use of magistrates' courts and where effectively proceedings should start and how they move about the system. In respect of looked-after children, court proceedings and adoption proceedings are already effectively required to start in the lowest tier of court commensurate with those cases and that should be magistrates' courts. So effectively it is the magistrates' court that first look at the case when it comes in and decide whether they are able to deal with it and whether they should transfer it to the higher court. What we have found in doing some research around the country is just as there is variety in local authority practice there is variety in court practice in terms of how many cases magistrates' courts feel able to deal with, how many they feel able to transfer and, indeed, in the case of a county court, how many cases are actually transferred down. It is an area that we have been currently having a look at because our concerns are really two-fold. First is inconsistency in practice which will obviously contribute to delays in some parts of the country which do not exist in quite the same form in others but also in terms of whether we have actually got the right judges, resources in place around the country to actually mean we can reduce delay in children's cases. At the moment adoptions can be dealt with in any number of 300 family proceedings courts and getting on for 100 county courts. Now obviously if you are dealing with the sort of workload that Mr Paton outlined earlier, around 4,000 cases, that is not very many cases per court. We tend to find the problem we have is that we have actually got our resources devoted to adoption work spread rather too thinly which means that we are spending resources on training court staff, training the magistrates, training the judiciary to actually deal with a small number of cases where they find it quite difficult to maintain the expertise. What we want to try and do is address the problem which we are really looking at in terms of secondary rather than primary legislation. It is first to review the transfer criteria, have a look at how the transfer criteria are operating, and if we can actually give more guidance to courts about operating them consistently but, secondly, a point that is actually covered in Chapter 8 of the White Paper and that is actually looking at focusing the expertise that we need to deal with adoption cases effectively in fewer centres. We do appreciate that in doing that we need to acknowledge the cost for parties of perhaps travelling a slightly longer distance for an adoption hearing than they otherwise would have. The problem we have is part of the delay in the system is actually the fact that we have got things spread too thinly and we need to concentrate judicial and staff expertise which would also be able to link in with the expertise of CAFCASS offices in centres to actually increase the expertise and the ability that we have to deal with adoption cases swiftly. I think the White Paper gives us one way forward. In answering your specific question about transferring cases between courts, the Children Act Allocation of Procedures Order, which determines where it is cases that should be heard, actually provides for cases to be transferred laterally between courts across the country as well as up and down between tiers of court. The fact that is not happening in some areas is something we have become aware of and that is exactly why we want to review the transfer criteria so that cases can be heard in the right place before the family and the agency involved with the right expertise to go with it. One thing we are able to tell the Committee is that we have been working very closely with the President of the Family Division on this. We are literally in the process of looking at where those adoption centres should be at the moment, what sort of access we can make sure that families have in terms of travelling time so that we can get that right balance between specialism and access. That is something we will obviously be sharing with and consulting on more widely. Those transfer points, yes, there is a problem and, yes, we are trying to do something about it. It is secondary legislation which is currently covering those points at the moment.
56. The point about name change?
(Mr Paton) The answer to your question are there circumstances is we think there probably are. This is an issue that we are actively looking at at the moment because there were representations made as a response to the 1996 Bill that there might be circumstances around placement where it would be helpful for a child to be known under a new name. This is something that we are actively looking at and considering whether there ought to be modifications to this Clause during the passage of the Bill. We would be very interested to hear the views of the various organisations that are going to appear before you as to whether and, if so, when that kind of background name change might need to be allowed for.
Mr Shaw: There is a slight caveat.
57. On the last point, I think what you said makes total sense, why not train up to a very good standard a smaller number of people rather than spread your resources? Have you also thought of the possibility of using video conferencing so that clearly people can be in situ and it means the social worker does not have to spend half a day travelling, they can do that and get back on with other case work and similarly for prospective adopters involved or whatever? Trying to get one date which necessarily suits everybody is virtually impossible. Is that figuring?
(Ms Birch) Yes.
58. There are no legal impediments to that sort of thing going ahead as there might be, say, for example, in dealing with a criminal case? It seems to me that video conferencing would move this process along.
(Ms Birch) Yes. The Court Service have currently got a modernisation programme on their civil courts and there are two issues which may be particularly helpful in relation to adoption cases. The first is precisely your point about video conferencing. One of the factors we have in the adoption of children cases, for example, is there may be expert evidence involved which requires somebody who is at the other end of the country to give evidence. Why travel if there is an interview/video suite nearby? So video conferencing is one area and I think a lot of the rules are actually silent on the use of IT but, again, it is secondary legislation so that is something that can be put right where there are barriers. The second area on modernising through the courts is actually looking at trying to be more flexible about how court accommodation is used and how judges and court staff are used. We would like to specialise adoption work to make sure we have the resources in the right place at the right time but that does not mean that there is a specific case where, for example, one of the parties has difficulties travelling, mobility difficulties, we cannot move the judge to the parties rather than always expecting the parties to move to the judge. The secondary legislation is actually flexible enough to let us do that but what we actually want to look at is building that more into current practice and procedure rather than having a provision which may be used but does not tend to be used in practice.
59. It seems to me there are two quite separate problems. There is the problem associated with court procedure and court time and then there is the issue that many children have profound anxieties once they have been placed for adoption about the whole question of having to go to court and everything they associate with that. Now, the Department published a document summarising all the latest research, Adoption Now, under the Quality Protects banner. On this section on court procedures there is a very interesting conclusion which I will just favour you with on the differentiation of court procedures: "The emphasis upon context should not obscure the fact that there are a good many consensual adoptions. Different proceedings for these places might be introduced. They might be dealt with, for example, with due ceremony by Registrars of Births. The objection that parents could still withdraw their agreement right up to the last moment might be met by the imposition of a time limit on the period in which this could be done". That strikes me as a possible amendment to the Bill. How does that strike you?
(Ms Birch) The point about whether adoption should actually remain in the court process, looking at the response to consultation there was a general negative response for it to be handled outside the court process. The concern was that these were major decisions about the child's future and also actually making major decisions about changes in status both for birth families and the adoptive families and, therefore, this was such a major decision it actually required the court scrutiny. So the response to consultation was whilst some of those areas particularly in the, as you say, perhaps non consensual cases might fall outside the system, I think the concern has also been on a practical basis on that area but how would you identify what a straight forward adoption was? Certainly in discussing these sorts of issues with the judiciary they have said to us a case may look very straight forward then you get right up to the last minute and something goes quite drastically wrong and effectively if you had not got court supervision in that process you might not be able to pick those issues up. We obviously need to look at it in terms of the court process in terms of making adoption as non-daunting a process for children as possible and I think there are a number of areas that is being looked at. First, judges and courts across the country try to make, as far as they can, adoption a celebration of the child's new start in life. They take photographs, children go round the court, there are cards, effectively trying to see the final adoption order as a celebration of the child's new start in life. The other issue which I mentioned would be CAFCASS national standards. Obviously for many who are looked after children there would be a Guardian ad Litem involved in actually talking to the children and representing the interests of the child through those adoption proceedings. There are real issues about making sure children understand, feel informed about, know what is going on, particularly where there may be a hiatus in the proceedings perhaps because an expert of the court is being sought. There is also the issue about guidance to court staff and judges about the way that they involve children in the court proceedings and the way they make sure that as far as possible family proceedings courts are not an intimidating place to go. The Magistrates' Court Service and the Court Service are currently looking at court accommodation across the country which again, to be honest, varies in standards. Things like whether there is a children's room available, whether there are toys to play with whilst younger children in particular are waiting. All of those things are very important in terms of the perception children have of the system and I think all of those things are currently being looked at and need to be looked at. Again, from our point of view it is making sure that practice and procedures are right as well as the provisions of the Bill. I do not know whether Diane would like to say anything.
(Ms Shepherd) Only that clearly CAFCASS creates an opportunity for us to learn from the best practice, to listen to what children want in order to feel best informed and take part in the process. We can use research to make sure that we do the absolute best for children in the process.