Memorandum submitted by the British Agencies
for Adoption and Fostering (BAAF)
1. EXECUTIVE
SUMMARY
1.1 BAAF warmly welcomes the introduction
of this Bill, most of which accords closely with BAAF's views
on what is required. This is a once in a generation chance to
improve the adoption service provided for children.
1.2 BAAF welcomes the Bill's focus on the
welfare of children, although it is also important not to ignore
the needs of the thousands of adults whose lives have been affected
by adoption over the last 75 years.
1.3 BAAF welcomes the Government's stated
intention to improve post-adoption support. However, we are disturbed
that there is no explicit duty on the face of the Bill for local
authorities to provide financial support, nor to meet assessed
needs. BAAF believes this must be contained in the final legislation.
A more consistent provision of services to birth family members
is also required.
1.4 BAAF recognises the need to improve
confidence in the adoption service by the provision of an independent
review mechanism for adoptive applicants, but has concerns that
the possibility of agencies being required to pay the cost of
this may provide a perverse incentive to approve applicants inappropriately.
1.5 BAAF would like to see a change in the
provisions that currently make it impossible for two people to
adopt a child jointly unless they are married to each other. This
restriction reduces the pool of potential adopters, and deprives
some children of the right to an equal legal relationship with
the two people whom they regard as parents.
1.6 BAAF believes that definition of "consent"
itself needs to be altered in the Bill, perhaps by replacing the
word "freely" by such a form of words as "without
improper duress or inducement". The statutory form that the
parent will be expected to sign, by virtue of Clause 44(3)(b),
could then be reworded to reflect this.
1.7 BAAF understands and supports the Government's
desire to ensure that birth parents cannot prevent the adoption
of a child where it is clearly in their best interests. However,
it believes that there needs to be a clearly defined threshold,
which must be crossed before parental consent can be dispensed
with. Failure to enshrine this in primary legislation runs the
risk that parents will be reluctant to seek the help of the local
authority when their children need it.
1.8 BAAF broadly welcomes the replacement
of "freeing for adoption" with Placement Orders. There
is a need for further consultation on the detail of these provisions.
In particular, BAAF does not believe that parental responsibility
should be transferred to an individual or an agency without the
involvement of a court.
1.9 BAAF welcomes the introduction of "special
guardianship" orders, parental responsibility agreements
and orders for step-parents and the changes in step-parent adoptions.
1.10 BAAF believes that the Bill provides
a long awaited opportunity to make provision for the registration
of private foster carers.
2. INTRODUCTION
2.1 British Agencies for Adoption and Fostering
(BAAF) is a registered charity which works to promote and develop
high standards in adoption and fostering for childcare, medical,
legal and other professionals; to promote public and professional
understanding of adoption and fostering and of the life-long implications
for children separated from their birth families, including their
racial, cultural, religious and linguistic needs. It acts as an
independent voice in the field of childcare and as an umbrella
body providing overall co-ordination and a concerted voice for
all its member agencies and all those working with children.
2.2 BAAF's corporate members include almost
all local authorities in Great Britain, all the voluntary adoption
agencies and a number of independent fostering agencies. In addition,
it has many individual members from a variety of professional
backgrounds, particularly social work, medicine and the law. BAAF's
special interest groups, focused on social work, research, black
issues, medicine and law, contribute through regular meetings
of their advisory committees to the development of BAAF's policy
and practice guidance. BAAF also has established links with organisations
involved with supporting individuals with personal experience
of adoption and fostering.
2.3 BAAF has been arguing the case for new
adoption legislation in England and Wales since before the passing
of the Children Act 1989. We warmly welcome the introduction
of this Bill, most of which accords closely with BAAF's views
on what is required. Naturally, however, there are, in our
view, some omissions, some points requiring expansion or clarification,
and a few important matters of principle which we believe need
to be addressed if the Government's ambitious goals for, and the
life chances of, children in need of adoption are to be enhanced.
2.4 BAAF believes strongly in the right
of every child to family life, preferably in the family into which
the child is born. The provision of appropriate support is therefore
crucial to enable parents, or where necessary, the wider family,
to bring up their children themselves where it is safe and possible
for them to do so.
2.5 Much has been written about the changing
profile of children currently likely to be adopted, and the Research
Paper (01/33) prepared by the House of Commons Library in connection
with this Bill sets this out very clearly in its background section.
However, it does unfortunately appear to be the case that, despite
the clear evidence of the changes which have occurred over the
last 30 years there is still a commonly held view that adoption
is primarily about the placement of babies.
2.6 BAAF is also concerned that the Bill
may endorse the widespread misconception that most children in
public care are in "institutions". This is simply not
true. Only 11 per cent of all children looked after in England
are placed in residential care, and only 2 per cent of children
under the age of 10 years[1].
The vast majority of children that require adoption in the UK
are with foster carers.
2.7 Since it is clearly impossible in this
submission to address all the detailed provisions of the Bill,
we focus on several key areas where we wish to see clarification
or changes of emphasis, or, indeed, where we particularly welcome
the approach adopted. The Prime Minister's Review of Adoption
and much of the White Paper published in December 2000 were concerned
mainly with the adoption of children from the care system; the
Bill necessarily addresses adoption in its entirety, which means
looking at the needs of children in stepfamilies, and those adopted
from overseas or cared for by relatives.
2.8 The legislation also needs to provide
for the needs of thousands of adults whose lives have been affected
by adoption over the last 75 years, and this is an area where
BAAF is concerned by the lack of specific provision in the Bill.
3. ADOPTED PEOPLES'
CONTACT WITH
THEIR BIRTH
FAMILIES
3.1 Research proved inconclusive about improvements
in outcomes from continuing direct contact between adopted children
and their birth parents and other family members. The needs of
children and their past experiences will vary so greatly that
it is not surprising that it has been difficult for researchers
to draw firm conclusions. However, there is little doubt that
the birth family will generally remain important to the adopted
person, and that in many cases children are anxious, at the very
least, to be able to have news of their birth family members.
3.2 Some work done (but not yet published)
with children and young people on the draft Adoption Standards
highlighted the fact that contact was a major issue for them.
In the Stage One Questionnaire of the consultation, children listed
changes to contact with their birth family as one of their main
priorities for improvements in adoption. Most of the children
who were consulted in more detail in Stage Two wanted children's
views about contact to carry more weight in deciding whether contact
took place, with whom and in what way. Some children mentioned
issues of safety, recognising that there needed to be dialogue
between birth parents, adoptive parents and children. Other children
expressed strong feelings about barriers in the way of contact.
3.3 The research studies have also shown
that the amount of work required by agencies in ensuring that
planned contact takes place and has the hoped-for effect (whether
this is direct or indirect or "letterbox" contact) is
often underestimated. Some families in the Lowe and Murch study
reported that the contact that was planned to take place between
their child and birth family members had been difficult to implement
because of lack of support from the agency.
3.4 BAAF believes it is wrong to assume
that when a child is successfully adopted his or her birth family
is no longer significant. The wording in the current law, continued
in the Bill (Clause 51) that an adopted child is to be treated
"as if he or she had been born in as a child of marriage
of the adopters" is not helpful here. While it is clearly
right and desirable that an adopted person should not be placed
at any legal or social disadvantage compared to people who have
not been adopted, this wording tends to give the impression that
the biological and emotional ties can be severed in the same way
as legal ones. Adoptive parents, while making a full commitment
to the child who joins their family, also recognises that he or
she has another family whose importance and influence will vary
from child to child and from time to time but which cannot be
denied altogether.
4. CONSIDERATIONS
APPLYING TO
THE EXERCISE
OF POWERS
4.1 BAAF welcomes, in general, the proposal—in
Clause 1—to make the child's welfare the paramount consideration
in all decisions by agencies and courts in respect of adoption.
BAAF broadly agrees with the factors included in the checklist
and we particularly welcome the specific reference, in line with
the provision in the Children's Act 1989, for agencies to give
due consideration to the child's religious persuasion, racial
origin and cultural and linguistic background. It is important
to recognise that this reflects a genuine entitlement of the child
rather than an obstacle in the way of the child's adoption. The
requirement to bear in mind the damaging effects of delay is also
important.
5. THE PROVISION
OF AN
ADOPTION SERVICE
5.1 In principle it is clear—from
Clauses 3, 4 and 5—that the Government accepts the importance
of support for children and their adoptive families, and these
Clauses provide a more robust framework than is currently provided
under section 1 of the 1976 Act. Nevertheless, there are a number
of areas of concern. A great deal is left to regulation, and while
this is likely to be necessary and even desirable in the interests
of the ability to adapt to changing needs, it is vital to have
a clear idea of what the Government has in mind, whether they
fully appreciate the complexity and crucial importance of the
needs of the different parties to the adoption process, and how
the resources to meet those needs are to be provided. BAAF believes
that far too much detail is being left to regulation and that
certain very clear duties should be written into the Bill itself.
6. FINANCIAL
SUPPORT FOR
ADOPTIVE FAMILIES
6.1 The PIU Cabinet Office Report of the
Prime Minister's Review of adoption set out[2]
many of the problems currently associated with adoption allowances.
Principal criticisms relate to the lack of consistency between
local authorities, exacerbated generally by financial constraints
on local authorities[3].
6.2 Given the difficulties experienced by
adoption agencies in recruiting sufficient adopters, the payment
of adequate adoption allowances is a vital consideration. BAAF's
research[4]
shows that 37 per cent of children adopted in 1999 were adopted
with at least one sibling and 40 per cent had developmental of
learning difficulties, a medical problem or hereditary risk. Another
BAAF study[5]
shows that 55 per cent of referrals to BAAF's family finding services
(Be My Parent and BAAFLink) were of sibling groups. Parenting
large groups of children or children with special needs is not
cheap and inevitably many prospective adopters will be deterred
if financial allowances are not payable.
6.3a Black and mixed parentage children
are overrepresented amongst children awaiting adoption and it
is well known that minority ethnic families are likely to be less
economically advantaged than white families. Therefore consistently
available adoption allowances would make a considerable difference.
Similarly foster carers are often the preferred option as adopters
for children who are closely attached but the loss of foster care
allowances often makes adoption an unviable proposition for them.
Indeed, in the USA the introduction of generous adoption subsidies
for foster carers enabled a massive increase in foster carer adoptions
(65 per cent of all adoptions in 2000).
6.3b The PIU report highlights the complexity
of the interrelation between adoption allowances and social security
payments; to this must be added the need to ensure that the Inland
Revenue does not reduce the usefulness of adoption allowances,
for instance in the application of family tax credits. For example,
a single adopter of a child with cystic fibrosis, able to work
only part time because of the needs of the child, claims family
tax credit, but the amount of the adoption allowance for the child
is taken fully into account in assessing the tax credit, whereas
a maintenance payment from an absent parent would not be.
6.4 There is also an issue, which was addressed
in the Draft Adoption Bill 1996, about the payment of an allowance
to people who take on the care of a child after the death of adopters
to whom an allowance was payable. The current Bill relegates to
parentheses in a sub-clause (Clause 3(8)(b)) the power to make
regulations for adoption allowances. What is required is a clear
and robust provision about the duty of local authorities to pay
adoption allowances, with some indication from the Government
as to the likely content of the regulations. If aspirations
regarding the increased recruitment of adoptive families are to
be achieved, this vital issue must be addressed.
6.5 Again, much of the detail regarding
post adoption support is left to regulations. Provision is included
about the local authority's duty to assess the needs of
adopted children and their parents, but even where a need is identified,
there is no guarantee that the local authority will have sufficient
resources to provide the services.
6.6 The Government is keen to encourage
the sharing of adopters between agencies (hence the forthcoming
National Adoption Register). One of the difficulties involved
with inter-agency co-operation in this respect is the fact that
one agency cannot say with confidence what support adopters may
expect from another agency. Under current provisions, once an
adoption order is made, legal responsibility for providing services
rests with the local authority where the adoptive family lives,
although responsibility for payment of any adoption allowance
remains with the agency, which made the placement.
6.7 The Bill proposes that regulations may
provide for the circumstances where the duty to assess the need
for adoption support services may fall on the local authority
other than the one where the adoptive family lives, and/or for
the recoupment by one local authority from another of the expenses
of providing post-adoption support. Regulations may be able to
resolve this difficulty, but what adoptive parents need above
all is the knowledge that they are entitled to support, and that
is absolutely clear which agency has the duty to provide it. If
an adoption is about to break down, the last thing the family
needs is to be caught up in a dispute about where the responsibility
for support lies.
6.8 Clear duties are also required for health
authorities and education authorities to comply with requests
for assistance from local authority social services departments.
Specific provision is made in the Children Act 1989 (section 27)
for this kind of inter-agency co-operation and it is important
that a comparable provision is made in this Bill.
7. SERVICES FOR
BIRTH FAMILY
MEMBERS
7.1 We welcome the fact that Clause 3 makes
it clear that the duty to provide adoption services extends to
"natural" parents and former guardians; it also permits
adoption support services to be given to "other persons"
which could of course include other relatives of people who have
been adopted. There is no indication, however, about what services
are to be provided, or whether and how these will be funded. There
is currently an unacceptably wide variation of provision by agencies
in this area, and the White Paper gave no indication that this
is an issue that the Government intends to address.
7.2 Clearly, there needs to be consistency
of provision, and it is essential that this is addressed. For
example, the Department of Health in August 2000 published guidance
for agencies on the provision of intermediary services for birth
relatives, but this is not mandatory. A birth mother whose child,
now adult, was adopted through one agency may thus be able to
obtain help from that agency in making an approach to the adoptee
or the adoptive family to enquire whether they are willing to
provide information or entertain direct or indirect contact, and
another whose child was adopted through another agency may receive
no help at all. The same applies to other relatives.
8. INDEPENDENT
REVIEW MECHANISM
8.1 We understand that the Government's
present intention within the wide powers introduced by Clause
9 is to enable prospective adopters who are about to be turned
down by agencies to ask for their case to be referred to an independent
panel. We welcome the Government's stated intention to consult
on the detail, and recognise the great importance of increasing
confidence in the adoption service, but we are concerned lest
the imposition of a charge on agencies to meet the cost of the
independent review might provide a perverse incentive to making
inappropriate acceptances. The result could be that such families
did not then have any children placed with them, which would cause
dissatisfaction and complaint at a later stage. The charge for
an independent review could weigh particularly heavily on small
voluntary agencies.
9. ADOPTION BY
MARRIED COUPLES
OR SINGLE
PEOPLE
9.1 We are concerned that it is not proposed
to allow two adults in a stable long term relationship to adopt
a child jointly.
9.2 When this issue was considered by the
Adoption Law Review in 1992 they pointed out that family structures
were changing and that more children were being born to parents
not married but living in stable unions. Since 1992 the numbers
of children born to unmarried parents has continued to increase.
The Review also drew attention to the European Adoption Convention
of 1967—Article 6 of this Convention prohibits adoption
by unmarried couples. With respect, we would suggest that in the
light of the major alteration in patterns of family life in the
UK since the 1960s, it is time to reconsider our obligations under
that Convention. At that time, birth outside marriage was the
major reason for placing a child for adoption, due in the main
to the stigma of illegitimacy so that logically it was a married
couple that was considered a suitable alternative.
9.3 It is estimated that 40 per cent of
children are born outside of marriage and that a similar proportion
of adults live in committed relationships but not in marriage.
Many of the adults would say they have a philosophical opposition
to marriage and that this in no way lessens their commitment to
each other. If we restrict joint adoption to married adults we
can only reduce the opportunity for children to find adoptive
parents—there is already a shortage of adopters for many
groups of children. While it remains impossible for both partners
in a cohabiting relationship to adopt, the child will be deprived
of the joint legal and lifetime commitment by these parents. The
fact that they are prevented from applying jointly deters many
couples from proceeding to adoption. 10 per cent of the enquiries
from people actively considering applying to adopt received by
BAAF in National Adoption Week 1999 were from two adults living
together.
9.4 The issue is not about equality for
adults, but rather about the need for children to have the lifelong
commitment from those adults who are legally obliged to support
them. In practice children are often placed with couples who are
not married to each other, and who parent them jointly. These
children do not understand in such circumstances why they cannot
have the opportunity of two legal parents. It is anomalous that
two adults living together could apply jointly for a special guardianship
order but not for an adoption order. This risks a situation where
a child could become subject to a special guardianship order rather
than an adoption order when the lifelong security of an adoption
order may be the preferred option.
9.5 We believe it is inappropriate to use
adoption as a means of promoting the importance of marriage if
this has the effect of denying children who are already disadvantaged
of the opportunity of an equal relationship with both the people
who are caring for them.
10. CONSENT TO
ADOPTION
10.1 The Definition of Consent. In
Clause 44(3)(a) consent is defined as "consent given freely,
unconditionally and with full understanding of what is involved".
This is problematic. The White Paper (paragraphs 8.27 and 8.28)
acknowledged concerns about the wording of the consent to adoption,
and the fact that even parents who recognise that their child's
welfare may be best served by adoption find it impossible to sign
a form stating that their agreement is given "freely".
The White Paper suggested that this problem might be addressed
merely by changing the wording on the form, but since this reflects
accurately the statutory condition that the court must find to
be satisfied, it is hard to see that changing the wording of the
form alone could be sufficient. The definition of "consent"
itself needs to be altered in the Bill, perhaps by replacing the
word "freely" by some form of words as "without
improper duress or inducement". The statutory form that the
parent will be expected to sign, by virtue of Clause 44(3)(b),
could then be reworded to reflect this.
10.2 The Child's Consent. In Scotland
the formal consent of a child over the age of 12 is required to
the making of an adoption order. The Adoption Law Review recommended
that this should also be the case in England and Wales, and the
draft Bill of 1996 followed this recommendation. BAAF believes
it is essential that the wishes and feelings of the child are
given the fullest possible weight (in accordance with the age
and understanding of the child) but has misgivings about requiring
the child to give a formal consent. For some children the pain
of having "signed away" their birth family might be
too much to bear (although it must be acknowledged that there
is no evidence that this has caused problems in practice in Scotland).
The consultation exercise with children and young people on the
draft Adoption Standards shows that children feel strongly about
having their views respected, and suggests that in some cases
they may feel that the local authority or adoption agency concerned
with arranging their adoption has too much invested in the outcome
to give children sufficient opportunity to voice their own misgivings.
"Some children expressed concern that social workers were
not the right people to be representing their views `They don't
listen to you anyway—if they (chosen adoptive parents) were
horrible they should listen to you... and not say Oh, well we've
found them now' (girl aged 14)".
10.3 The Bill (Clause 103) provides that
court rules should require notice of an adoption or placement
order application to be given to a child or 12 or over; this would
presumably mean that a child of such an age would automatically
be entitled to be a party (and hence entitled to the services
of a guardian within the proceedings and, we would hope, legal
representation). However, applications involving children of such
an age are relatively rare, and the position of younger children
needs to be considered too.
10.4 It is essential that for children of
all ages there be something stronger than the phrase in the checklist
in Clause 1 which states the need to "have regard to"
the child's ascertainable wishes and feelings. An alternative
could be to make it a requirement that the child always had opportunity
to express his or her wishes and feelings to someone who had not
been involved in arranging the adoption. In addition, the adoption
agency and the court should have to state clearly how they have
taken the child's wishes and feelings into account in reaching
their decisions.
11. DISPENSING
WITH PARENTAL
CONSENT
11.1 Inder the current law, a child can
only be adopted with the agreement of each parent or guardian,
unless the court decides that this can be dispensed with on one
(or more) of certain specified grounds. The Adoption Law Review
team considered that the law on dispensing with consent was unsatisfactory,
both because it gives insufficient weight to the parents'
views, and because the most commonly used ground for dispensing
with agreement (that the parent is withholding it "unreasonably")
leaves a parent whose consent is dispensed with bearing the stigma
of being "unreasonable". The Review Team proposed that
the test for dispensing with consent should focus on the needs
of the child rather than the shortcomings of the parent, but that,
for this particular decision, the child's welfare should not be
the paramount consideration. The Team wanted to avoid the possibility
that a court might make an adoption order against the parents'
wishes where adoption would only be marginally better for the
child than any other option. It proposed that the test should
be that adoption would be so significantly better for the child
than any other option as to justify overriding the parents' wishes.
BAAF concurs with this view.
11.2 It must be understood that this is
not merely a technical point or an academic argument, but a matter
of fundamental importance. This is not only because of the drastic
nature of the decision being made in irrevocably severing the
legal relationship between child and parent, but also because
of the practical consequences for children and families. Parents
need to be able to call on support services to help them bring
up their children, including occasionally making use of the local
authority's provision of accommodation for their child. This can
apply disproportionately to disabled children whose families may
need additional support. There is a danger that, if parents believe
that the local authority may use accommodation as a first step
to making adoption plans for their child, they will be deterred
from using a service which is needed in the interests of their
child. There will, of course, be cases where it becomes clear
after a period of time that a child who has accommodated on what
was thought to be a temporary basis to provide relief for a family
under pressure may now need the security of adoption. In such
cases it is vital that the birth family are given proper opportunities
not only to consider and understand what is being proposed, but,
if they are not in agreement, to know that their wishes will be
given sufficient weight. Under the proposals in this Bill, the
local authority would be able to apply to the court for a "placement
order" (authorising it to place the child for adoption) without
having to establish the likelihood of significant harm, as it
would for a care order, but merely on the grounds that the child's
welfare "requires it" (Clause 44 (2)(b)). BAAF does
not believe that this is a sufficiently robust test and would
instead argue that a clear threshold needs to established before
parents' wishes can be overridden. The form of words proposed
by the Adoption Law Review (see above—paragraph 11.1) is
hard to improve on.
11.3 There is a danger that it might be
argued that for many children from disadvantaged and impoverished
families, whose parents has sought help to care for them, including
an episode of care away from home, the child's welfare could be
better served by a secure stable adoptive family where their life
chances would be enhanced. However, this sort of social engineering
would, in BAAF's view, be an abuse of the child's and family's
rights to family life under the European Convention on Human rights.
12. PLACEMENT
FOR ADOPTION
AND PLACEMENT
ORDERS
12.1 BAAF welcome Clauses 16 to 26—the
replacement of "freeing for adoption" with Placement
Orders, as recommended by the PIU report. However, the PIU did
recommend that there should be further consultation on the detail
of these, and the timing of the introduction of the Bill has forestalled
this. The provisions in the Bill are complex, and certainly require
detailed consideration and consultation. In this evidence we have
concentrated on our main areas of concern, but we would encourage
the Select Committee to promote further discussion on the detail,
in particular drawing on the practical experience of BAAF's members.
12.2 Clause 18 requires an application to
be made for a placement order in certain circumstances if a local
authority or adoption agency "is satisfied that a child ought
to be placed for adoption", and further consequences follow
once that duty to apply for a placement order arises. It is therefore
important that the time when the local authority is so "satisfied"
is clearly defined, but this is not addressed
12.3 Clause 22 deals with transfers of parental
responsibility as far as the adoption agency is concerned, parental
responsibility is given to them when a child is placed for adoption
with parental agreement, when they have been authorised by the
parents to place a child for adoption, or if a placement order
is in force. Parental responsibility would be given to prospective
adopters when the child was placed with them (but would presumably
be lost if the placement disrupted). Parental responsibility would
therefore be shared between the agency, the birth parents and
the prospective adopters, with the agency having the right to
restrict the parental responsibility of the birth parents and
adopters. BAAF is unhappy both about the principle of granting
parental responsibility to a person or agency without court involvement,
and about the risk of confusion that we think these provisions
would create in practice.
13. SPECIAL GUARDIANSHIP
13.1 BAAF very much welcomes the provision
in Clause 96, which provides a valuable option for permanence
for some children for whom adoption is inappropriate. This will
be of benefit to children who have established a relationship
with foster carers, and where it is appropriate for this to be
made into a permanent arrangement, without the child having to
give up legal links with his or her birth family. It will also
be valuable for those situations where grandparents or other extended
family members who care for a child, fear that the security of
the arrangement may be upset by interference by the birth parents.
In both these situations, residence orders alone may often fail
to provide the level of security and sense of permanence needed.
13.2 In both these situations there is likely
to be a need for financial and other support. We welcome the provision
which would entitle young people who were subject to special guardianship
orders, but who had been previously "looked after" by
a local authority, to the same support as is available to young
people leaving care, but nothing is said about the support (financial
and otherwise) to which they and their guardians will be entitled
while the order is still in force. Financial support will be needed
in many cases.
13.3 It is also likely that in many cases
there will be a need for support to enable contact, direct or
indirect, with the birth parents and other members of the birth
family to be maintained. The children concerned may have other
complex needs for which their guardians will also need to access
support. Support will be needed, not only where the children were
previously looked after by the local authority, but also in cases
where the willingness of relatives to take on the care of the
child avoids the need for local authority accommodation.
14. STEP-PARENTS
14.1 BAAF welcomes the proposed changes
for step-parents in Clauses 43 and 92. The rationalisation of
the approach to step-parent adoptions, by enabling the step-parent
alone to apply to adopt without the child's birth parent having
to become also an adoptive parent, is much needed. (Curiously
the Bill appears to allow for joint adoptions by step-parents
and the child's birth parent, but this is perhaps an oversight.)
We particularly welcome parental responsibility agreements and
orders which should prove a realistic alternative to adoption
for step-parents. As with the special guardianship proposal, such
orders will help to provide a sense of security for the new family
unit without creating legal severance between the child and one
half of his or her birth family. Even where one birth parent is
dead, or is unwilling or unsuitable to play an active part in
a child's life, it does not follow that the grandparents or other
relatives of that parent are unimportant to the child.
14.2 One issue not addressed in the Bill
which needs further thought is the financial consequence of parental
responsibility agreements or orders. It needs to be clear whether
the step-parent entering into such an agreement would then acquire
a duty to maintain the child. The position taken by the Child
Support Agency would also need clarification.
15. REGISTRATION
OF PRIVATE
FOSTER CARERS
15.1 BAAF continues to be concerned at the
Government's decision not to implement the recommendation in Sir
William Utting's Report[6]
concerning private foster children, identified as amongst the
most vulnerable of children living away from home. This recommendation
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. In the light of the recent
case of Victoria Climbié, and the forthcoming inquiry to
be chaired by Lord Laming, BAAF believes that this Bill allows
the opportunity to legislate for the registration of private foster
carers.
16. UK CO-ORDINATION
16.1 Scotland and N Ireland. There
are references at various points in the Bill to the recognition
in England and Wales of the validity of orders made in Scotland
and Northern Ireland, and actions taken in England and Wales by
adoption agencies approved in those countries. It is important
that attention is paid to reciprocal provisions in those countries
enabling, for example, adoption agencies in England and Wales
to place children for adoption in Scotland or Northern Ireland.
17. IMPLEMENTATION
OF LEGISLATION
17.1 Prior to the Children Act 1989, childcare
law in England and Wales had suffered from piecemeal reform, exacerbated
by partial implementation of legislation approved by Parliament.
(The Children Act of 1975 was brought into force in stages over
no less than 13 years!). The Children Act 1989 was brought into
force virtually in its entirety on one day (14 October 1991) following
very thorough consultation on the regulations and guidance and
a full training programme.
17.2 There is some concern that we may be
returning to the pattern of piecemeal implementation: two sections
of the Adoption (Intercountry Aspects) Act 1999, whose principal
provisions are not yet in force, have already been brought into
force at separate times, with, in some instances, only extremely
limited consultation on the regulations. We hope that this Committee
will underline the importance of carefully planned and co-ordinated
implementation of this Bill.
18. NATIONAL
ADOPTION REGISTER
18.1 BAAF welcomes the establishment of
the National Adoption Register (sections 96-100) and the opportunity
this will give to link children awaiting adoption with approved
adopters when a suitable family cannot be found locally within
a prescribed period. We also welcome the provision that appropriate
consents will need to be given before details of adopters and
children are placed on the Register (Clause 98 (3)). However,
we remain concerned that budget restrictions on local authorities
may not allow full use to be made of the Register including placing
a child for adoption with the most suitable family available nationally.
18.2 In most circumstances, the agency which
recruited and assessed the adopters will require the agency placing
the child to pay an "interagency fee" which will compensate
the adopters' agency for the expense incurred in the recruitment
and assessment. We believe that the payment of the interagency
fee should be facilitated by the provision of a central fund attached
to the National Adoption Register. This would have the undoubted
effect of "speeding up" adoption by preventing financial
considerations overriding the best interests of the child. We
recognise the risk of establishing such a fund would be that some
local authorities may not prioritise the recruitment of adopters
if they can be freely acquired through the Register—we believe
this could be addressed by introducing a requirement about the
number of adopters who would be recruited by an authority before
use could be made of the special fund. The other advantage of
the proposed fund would be that voluntary adoption agencies would
be able to increase their recruitment activities because they
would know funding was available.
19. CONCLUSION
19.1 BAAF believes that the Adoption and
Children Bill is broadly to be welcomed. There is no doubt there
is a need for a Bill to address the shortcomings of the current
regime. BAAF is extremely glad that the Government has sought
to introduce the Bill in a non-partisan and consultative manner
and is particularly pleased that the Government has created a
special Select Committee of the House of Commons to examine it
in detail. We have highlighted the concerns that we have about
the Bill and hope that the Committee and the Government will take
note of them to ensure that the adoption services are supported
by a sound legislative framework. We hope that this Committee
will have the opportunity to hear directly from the range of organisations,
which represent the interest of all parties to the adoption process,
including birth parents and grandparents.
1 Children looked after by Local Authorities, year
ending 31 March 2000 (Department of Health). Back
2
Paragraphs 3.118 and 3.122. Back
3
For research findings on this topic see Annex 1. Back
4
Ivaldi "Surveying Adoption" BAAF 2000. Back
5
"Linking Children with Adoptive Parents" BAAF 2000. Back
6
People Like Us, July 1997. Back
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