House of Commons - Adoption and Children Bill

Select Committee on Adoption and Children Bill Minutes of Evidence

Memorandum submitted by The Adoption Forum

The Adoption Forum welcomes very warmly the Government's Adoption and Children Bill. It has been long-awaited and introduced many measures that the Forum has sought for many years.

We particularly endorse the first Clauses of the Bill which enshrine in the law surrounding adoption and the public care of children that the child is paramount in any decision made on his/her behalf.

We are particularly pleased to see, among other things:

— the name of the Bill, which includes not only adoption but children in general: adoption cannot be seen in isolation;

— recognition of the importance of post-adoption support;

— clear duty of Local Authorities to provide an adoption service;

— the introduction of compulsory national adoption registers;

— the introduction of a new category of "special guardianship";

— recognition of the value of adoption and adopters;

— parental responsibility of unmarried fathers;

— placement orders to replace freeing order; and

— extra safeguards for children and the internet.

But where's the technology?

This Bill is a once-in-a-generation chance to provide a spectacularly good, modern, effective and efficient service for society's most ill-served children. There has been much talk, in the PIU report and the White Paper, of the lack of grip in the care system. Getting a better grip seems to have been a prime motive for new legislation.

Yet, remarkably, there is no requirement to use the wondrous technologies available to us in this age of computers. Children in the system need to be tracked, performance monitored, outcomes reported. This can be done fairly simply with technology.

If all the children looked after (in any one year this figure is approximately 100,000, so the problem is nothing like the order of the benefits system), were on a computer system there would be:

(i) less chance of children going missing (see References);

(ii) a check that plans are being made and fulfilled;

(iii) an opportunity to ensure that the money allocated to children actually reaches children;

(iv) a way of establishing a system of independent visitors (as required under the Children Act); and

(v) a method of monitoring outcomes.

Can the new way really work without . . .

1. A different funding basis . . .

2. A comprehensive system of appeals for all users of the system . . .

3. Multi-disciplinary assessment of children entering the care system . . .

4. Duty of Candour . . .

5. Proper services for inter-country adoption . . .

. . . ?

These are, we believe, the serious gaps in any provision for an equitable and just system of adoption and the public care of children

We argue each point in more detail overleaf.

1. FUNDING

Budgets are a controlling force in the current child care system and, despite all the efforts of local authorities, voluntary agencies, researchers, funding and input, the child does not get a fair deal or successful life outcomes from the billions of pounds allocated.

We advocate direct funding of children with a personal centrally-held budget for each child (see References).

This immediately separates decision-making from funding. Then decision-making can be truly for the benefit of the child and not an exercise in balancing stretched departmental budgets at local authority level.

If the money—ie the LA's income—is dependent on doing something for the child, then doing will happen. If money could only be released by a central fund for the care of the child on receipt of an invoice by the local authority for fostering, or assessment, or anything else, then an incentive is there to act.

Otherwise, laissez faire: this is indeed common practice when it comes to family-finding. If the child's authority cannot find a suitable family within its own area, there is often a reluctance to seek one beyond its boundaries because an "inter-agency fee" is incurred.

It is difficult to see how the national registers will alter this state of affairs.

Fees will continue to be incurred and the practice of doing nothing—in terms of assessment of children, or specialist treatment for particular emotional, psychological or educational difficulties—will not cease.

This practice of doing nothing also extends, to post-adoption support, and again, it is hard to see how this will change under the proposed law, which requires only a right to assessment, not provision of services. Certainly there is nothing to hint at the compulsory provision of services from other departments such as health and education.

We can list at least 14 advantages to the direct funding of children. Disadvantages lie in the initial setting up costs and reorganisation, which could, of course, be fairly high. However, the benefits would far outweigh these costs.

Advantages of direct funding:

1. Ensure that all children were given the same opportunities for planning and progress through the care system, so that children from poor boroughs have the same chances as those in richer counties.

2. Ensure that a record is kept of each child in care.

3. Promote good tracking of expenditure and care statistics (sorely lacking).

4. Act as a check on the progress of each child in care.

5. Eliminate concerns over inter-agency fees: the National Registers could go on-line without fear of becoming a white-elephant and could offer children the sort of choice and quality of matching absent hitherto. Given that around 40 per cent of children are in care from backgrounds of abuse and neglect, and that the cultural/ethnic pool would be wider, it stands to reason that many children would benefit from "away" placements.

6. Facilitate multi-disciplinary assessments on entry into care, essential to proper planning and care of children.

7. Allow impartial agreements over adoption allowances and post-adoption support services.

8. Encourage through better practice (ie concentrating on the children rather than the budget) more stable placements, with good support and treatment.

9. Less need for local authorities to "stretch" the truth about a troubled (and thus expensive) child in order to get him/her adopted and off their budget.

10. Encourage adopters (or wider family) to come forward in the knowledge that they and their new family will be properly supported.

11. Open up the closed world of a child in social services' care to the help and support of other agencies such as education and health.

12. Enable children in care to have more choice about further education, training, tuition.

13. Cut delays by eliminating many hours of meetings within social services departments which have to juggle funding.

14. Offer guaranteed access for children in care to continuing intervention and treatment from specialists, whether they have an adoption plan or not.

We could go on but by now we feel you will have understood our drift!

2. COMPREHENSIVE APPEALS

The only appeal allowed by the Bill is for potential adopters through an independent review mechanism that can challenge the rejection of a couple's/single person's application (Clause 9).

Currently, there is no recourse for users of the care system—children (or those who represent them), prospective adopters, families. Anyone who falls foul of their local care providers can, of course, complain to their local authority, but the likelihood of a satisfactory result is minimal because:

(i) no organisation likes to criticise its own; and

(ii) the demands of insurance companies can often preclude frankness or any admission of wrong-doing (see References).

The only really independent arbiter available to a complainant is a court through judicial review, a most unsatisfactory process. It results in a very narrow legal focus, is expensive, time-consuming, uncertain, unsuitable, daunting and frankly impossible for most people. It should also be unnecessary and public policy does not allow the suing of local authorities (see References).

A comprehensive appeals system—an ombuds system—gives all parties a louder voice and better representation (see References).

But there must be, too, provision for the independent scrutiny of, and appeal against, bad or unjust decisions, or bad professional judgments, such as those involving planning and placement, as well as scrutiny of potential adopters. So often, a single social worker is required to make judgments: given the human nature, the chemistry can't always work.

To whom can the following complain?

A fostered child feels his social worker is not listening or his plan is not being fulfilled.

Birth families may feel they have been sorely misjudged.

A foster-carer has a child in their care whose plan is adoption and nothing is happening.

A paediatrician sees that a child is injured repeatedly over a period of time. She warns social services. Nothing is done. Again the child comes to hospital with injuries (as in the case of Anna Climbie).

A lay-visitor unhappy about the child's placement/plan/lack of action.

A women already assessed as an adopter is refused a match with a child she has identified even though there is no other family interested in adopting her.

A child in residential care who is abused by a member/s or staff.

If we are to run an effective system, then public confidence is crucial. Without it:

— our children and their safe-keeping are at risk because there is a reluctance to contact the authorities;

— parents finding themselves unable to cope will not seek help; and

— adopters and fosterers will not come forward to provide alternative families for children.

We advocate:

An independent authority, outside local authorities and the Department of Health, to review complaints and have, where necessary, the power to overturn decisions.

Independent visitors (already a requirement under the Children Act but often not implemented) should be organised and allocated by the independent body governing appeals/reviews.

Visitors would act as a conduit for complaints from children in care (who could also complain directly), while also being themselves vigilant observers of what happens to each child they are allocated.

It would also be obligatory for foster carers to report regularly—say bi-monthly—to the independent authority.

3. ASSESSMENTS

The Bill talks a lot about proper planning and putting the weight of the law behind ensuring plans are fulfilled. However, the Bill does not look at what happens when a child enters care.

When children enter care it is often unplanned and indeed an emergency. The child goes to the first foster home available—there are no fancy matching procedures. This could be a deeply unsuitable place: a frightened pre-schooler, for example, going to a foster home already caring for a troubled pre-adolescent. No one knows the young child's history or family background, so no special provision is in place.

Foster carers are not professionals with lengthy training. However kindly, they are at best gifted amateurs.

An increasing number of children now entering care are far more damaged than in previous generations—there has been a 53 per cent increase in the proportion of children who have been neglected or abused—and have far more complex backgrounds.

They need professional and expert help.

Every child entering care deserves:

Effective assessment of problems and difficulties.

A plan of action based on proper assessment.

A start in tackling problems, whether medical, social or psychological or emotional.

If the child is only going to be in care for a few weeks, fine—then a check won't do any harm, just to make sure everything's okay and there is not a more serious problem lurking. This kind of check-up is likely to help prevent consequential entry into care because if there is cause for intervention to help heal the rifts in a family, for example, it can start early enough to be effective.

If a longer stay is warranted, then more thorough medical, educational, psychological, emotional assessment can usefully take place. Treatment of uncovered difficulties can then begin.

We advocate:

Multi-disciplinary assessment on entry to care at a special comfortable and small reception home before moving to foster care.

We believe it would be less traumatic and terrifying for a child to enter care through this sort of "airlock" where the experts can establish exactly what the child needs.

Then, only then, and right from the start, the basis of a plan for that child can be started looking at possibilities of permanence—including adoption—for the long term (see References).

4. DUTY OF CANDOUR

There are large sections in the Bill regarding information: records and statistics must be provided by the Local Authorities and adoption agencies (Clause 11). Then there is information given to adopters, about themselves and the child and adopted person (Clauses 47-49): disclosure of birth records (Clauses 63 and 64).

Specific concerns:

We note that information about adopted children will, under Clause 47, be left up to Regulations, which worries us. We are concerned too that there is a serious loophole in the giving out of information contained in Clause 47.3.

There is an equal worry over Clause 49, prohibiting giving information without the agreement of any person who can be identified. This could put a stop to an adopted person finding out anything about his/her life. We feel strongly that every adopted person has a right to know.

And under Clause 49.3, does that medical practitioner not have to provide any valid reason for having the information?

The Law now:

Currently there is no Duty of Candour for local authorities in British Law.

Without straightforward and relevant information, how is anyone supposed to trust the system?

It seems shocking that officials should have carte blanche to tell lies without fear of repercussions. The case of W v Essex highlights the issue of truthful disclosure of a child's past. A further recent case points out that doctors have no duty of candour either (see References).

It is also evident, from hearings on sexual abuse in children's homes, child migrants and many other cases, that insurance companies have a huge part to play in preventing disclosure (see References).

Generally speaking, we of course, appreciate that there are—rare—instances where secrecy is vital to the safety and/or welfare of children but as a rule it is hard to see what the benefits of secrecy are to adults, other than to erring officialdom.

We can also appreciate the need for discretion at times and for periods of time, but that is, on the whole, a temporary need.

We cannot and do not believe that it is the State's function to hold and retain personal and intimate facts about its citizens and its citizens lives on the basis of "it's not good for them to know".

Families coming forward to adopt would not and do not expect to find that the professionals involved have no duty to tell them the truth, either about themselves or about the children they are interested in adopting.

Adoption itself used to be considered as an uncomfortable fact that was better hidden from the child: we now know this was a grave mistake: the hurt, damage and confusion it left in its wake was abominable and unacceptable. So is all secrecy—with very rare exceptions.

We advocate:

The introduction of a Duty of Candour that insists the fullest possible information should be released to relevant people.

Deliberate deceit (ie telling lies and/or withholding clearly relevant information) is not the same as negligence (ie failing to follow set procedures or omitting to find out and pass on relevant facts) and needs clarification under the law.

System Abuse

This is an added extra on our part, related to Duty of Candour in the sense that suitable legislation could shift the balance of power to the individual rather than the local authority/state.

The law is very vague in the area of negligence and heavily weighted against individuals who come up against the might of the system and bad practice. Public policy has always disallowed the suing of local authorities for negligence though the extreme cases such as Barrett v Enfield and W v Essex (here cases were brought by the children and parents separately) have succeeded at appeal in being allowed merely to bring their cases into court. No guarantee of success of course.

This cannot be just given the facts of their cases which concern, respectively, the duty of care owed by a local authority to a child in its care and negligent mis-statement to a foster family. To succeed in a negligence claim the claimant must prove damage, but this can be virtually impossible in social service cases.

So often damage is caused by prevarication, lies and misinformation, delay, rudeness, not replying to letters, phone calls etc, not answering specific questions, bully tactics, withholding information and files etc, confused bureaucracy. It is not the simple loss of a leg or eye. The damage results in stress, anxiety and loss—loss of equilibrium, loss of control of one's life, loss of one's self. This can be most easily described as System Abuse. Many good social workers are abused by their own system.

We advocate:

A new law encompassing the concept of System Abuse and for which LAs can be held accountable and which can be independently enforced and regarded in law as a quantifiable damage.

5. INTERCOUNTRY ADOPTION

This Bill seeks to ensure that improper adoptions and arrangements for such adoptions are not made. We have no quarrel with that.

However:

The UK has signed the Hague Convention on international adoptions and is waiting to ratify the agreement. The Hague recognises international adoption as a valid way of founding a family and seeks, through international arrangements, to prevent improper adoptions that are not in the best interests of children.

Across the world there are around 25,000 international adoptions each year:

— the US accounts for around 15,000;

— France, with a comparable population, for 3,600;

— Norway, with a population of four million, for nearly 600.

Yearly, in the UK there are 300-350 applications to adopt from overseas.

There are no published figures showing how many applications succeed.

The Overseas Adoption Helpline (a voluntary organisation) receives around 3,000 enquiries a year.

Services within the UK for international adopters are very poor.

There is a requirement on Local Authorities to offer home studies for intercountry adoption but many put such applicants to the bottom of the list because, understandably, they believe their priority is the child in their care. Some people have had to wait two years for the start of the home study. Some have never been able to get one.

There are only four registered voluntary agencies able to conduct home studies independently for overseas applicants. Two (both in London) have recently announced they will no longer be doing so.

Some lawyers feel that the Government may be liable to action under Human Rights legislation if services which are required under the law cannot be fulfilled because of poor provision.

A. Beyond home studies

There is a requirement on local authorities to provide home studies, the most crucial of documents. There is no further help provided, not even much official advice, until a child is living with the adopters following entry to Britain. This leads people into:

— having to deal with agencies operating from other countries, mostly the US; or

— having to deal with countries direct, even though they have insufficient experience of the system, probably cannot speak the language fluently enough; or

— having to employ a go-between, a facilitator, with no protection offered to the applicants or the child; or

— having to find and commission lawyers, social workers and other linked professionals in the chosen country to identify the child, and take the process through the courts, again with no protection offered.

We advocate:

The Government encourages and offers start-up help to voluntary agencies who could offer a complete service to adopters. Many other countries, in Scandinavia, mainland Europe and the US, run extremely good (and very different) organisations that offer safeguards to children and adults.

B. What happens to Britons working abroad?

There is no provision to provide home studies to Britons living abroad. More often than not, ex-pats employ US-based and registered intercountry agencies. They have enormous difficulties in getting Department of Health officials (who are, de facto, the Central Authority demanded under the Hague) to co-operate with matters such as Entry Clearance.

We advocate:

The inclusion of a Clause that allows Local Authorities to commission home studies for Britons living abroad from reputable social workers working overseas, such as those working for US intercountry adoption agencies.

C. What happens to foreign nationals living in Britain?

Again there seems to be no provision. Say an Italian banker living in the UK with her husband wishes to adopt from Russia: few local authorities are going to believe they are in any way a priority for a LA home study. What do they do if they wish to abide by UK laws?

We advocate:

Full-service agencies operating out of Britain (as suggested in B) could offer help, as US agencies now offer help to Britons wishing to adopt internationally.

D. Charging for home studies

Clause 3.7 "Regulations may provide for changes to be imposed for the provision of any of the facilities . . ."

There is no capping on fees charged for intercountry assessments, nor indeed any requirement of consistency. Charges vary from nothing to £4,500 for a home study. Legal fees and other professional services are not included.

The Department of Health's SSI is able to overturn a local authority's recommendation to adopt: it is not within the SSI's power to do this in domestic adoption.

We advocate:

A cap on the price of a home study.

An alignment of powers.

E. Criminal offences

Clauses 68-75: These are punitive measures designed to prevent flagrant abuses of children's best interests and rights. They are welcomed as a safeguard but it is interesting to note the law's clear intent to criminalise individual's bad actions.

Will we see, in a similar spirit of protecting children and promoting their welfare, social workers and management taking individual responsibility for their misdeeds?

FURTHER WORRIES ABOUT THE BILL

Particularly:

We are worried about the heavy reliance on establishing many matters by Regulations, and these matters will thus not be scrutinised by Parliament.

These include crucially important moves such as:

— Clause 4.7: definitions of adoption support services.

— Clause 9: the review mechanism for potential adopters.

— Clause 47: the handling of information about children and their histories.

— Clause 3.7: charges for intercountry adoption services.

— Clauses 96-100: the establishment and running of the National Register.

We believe it is vital that Elected Members have their say on these matters.

National Standards

The establishment of these have not, as far as we can see, been included in legislation. We are uncertain whether or not they are compulsory.

If they are not, they are virtually worthless, given the degree to which Ministerial guidelines have been ignored in the past by local authorities (see References).

Voice of the users

Although we are delighted by the many promises of consultation, we are not certain that it is adequate. The loudest voices in any consultation process are likely to be those of the organisations who run the system rather than those whose lives are run—and sometimes ruined—by it.

We believe it is vital that all three sides of the adoption triangle have their say, not only in practice, but in policy-making.

Post-adoption services

Post-adoption services: (Clause 4) this requires only that there is a right to assessment, it is then left up to the Local Authority's discretion whether any support follows. Neither is there a time component, which would add strength to this vital section. We believe this could allow reluctant LAs to slip too easily from their duty to provide help.

Equally, there is only a requirement to notify other departments of a person's post-adoption needs, not a requirement to enlist their help, or any requirement o the part of other agencies to provide help and support.

Proper post-adoption support is crucial if adopters and potential adopters are to feel any real faith in the system. Without faith on the part of adopters, there will be little improvement in the statistics or, more importantly, the outcome for children.

Default power of appropriate Minister

Clause 12: This is similar to Clauses in both the Care Standards (Clause 28) and Children (Clauses 84 and 103) Acts, neither of which makes clear how information about failure on the part of local authorities reaches the Minister, given that the local authorities are unlikely to draw attention to their short-comings and there seems to be no avenue for individuals to complain about performance.

Neither is it clear how widespread or serious short-comings have to be before any action is taken by the appropriate Minister. This lack of clarity is in sharp contrast to the criminal sanctions imposed on private individuals in relation to adoption (which we support) and yet the results of poor local government performance can be of far greater consequence to a far greater number of children.

Social workers' expertise

There is a serious need for social workers and others working with children to receive specialist additional training for adoption work, given the complexities and consequences of decisions. This is not addressed in this Bill. Neither is this covered specifically in the Care Standards Act to our knowledge.

The All Party Parliamentary Group on Adoption is very keen to see specialist training for children's social workers.

Unplanned pregnancies

There is no provision for counselling and support of women with unplanned pregnancies. We do not believe it to be adequate to leave this matter up to other government departments or initiatives when it is so plainly a question that should be dealt with under the legislation on Adoption and Children.

Although it is vital to give women simple information on adoption it is not enough. We recognise, of course, that adoption would suit very few but for those who might see it as an option, there needs to be a proper service offering support, counselling and, if necessary, accommodation. A young girl may well need a place of safety and empathy in which to live until the birth.

Help exists for those who wish to keep their baby, or for those who opt for abortion: there is little for women who choose adoption.

May 2001

REFERENCES

Technology

BAA has just instituted a car-sharing scheme, a matching operation if ever there was one, for 70,000 employees working at Heathrow Airport. Investment cost: £100,000 (reported on BBC news 26 April 2001).

We understand that the Home Office has experienced huge difficulties with its computer system designed to track asylum applicants but this, we suggest, should not deter the DoH.

Funding

This proposition was put forward by the All Party Parliamentary Group on Adoption in its response to the PIU report. It supposed that initial cost might be in the range of £100-£300 million, but that cost benefits would be enormous.

Other supporters (inter alia):

Chris Hanvey, director of the John Ellerman Foundation; formerly director of the Thomas Coram Foundation and NCH Action for Children. He has also held posts in local government, chairs an adoption panel, and is himself an adopter.

The Rt Hon David Davis MP, Chairman of the Public Accounts Committee.



© Parliamentary copyright 2001	Prepared 8 June 2001