Memorandum submitted by The Adoption Forum
(Continued)
COMPREHENSIVE APPEALS
Supporters include
The All Party Parliamentary Group on Adoption.
Sir Ronald Waterhouse (his tribunal recommended
an independent complaints system).
Independent visitors and their role
Health Committee Report and Proceedings 1 July 1998
Conclusion 211.
"The Panel of young people from whom we
too evidence supported the concept of formally recognised mentors
or champions."
Conclusion 213.
"A recent study by the Joseph Rowntree Foundation
and the NCB 1996 shows that only a third of local authorities
in England and Wales (40 out of a total of 120) were using independent
visitors despite it being a legal duty of them to do so. At the
time of the survey, only 235 children and young people in England
and Wales had an independent visitor.
Conclusion 214.
"Sir William Utting . . . believed that
every child should have someone to play the role of long-term
adult friend; if not their own parents or an independent visitor
it might be a local authority children's rights officer."
Conclusion 215.
" . . . Mr Boateng . . . accepted the principle
of each child in care having a single person to act as a `focal
point'."
Conclusion 221.
"We have been disappointed to find that
so few independent visitors have been appointed. If the appointment
of `adult friends' is effectively left to the discretion of local
authorities, we suspect that very few will be appointed."
Forgotten Children: Christian Wolmar published 2000
page 249.
". . . the Children Act requires local authorities
to appoint Independent Visitors for those children in and out
of home care who have little or no contact with a parent but only
a third of authorities by 1998 were using them."
See also
Felicity Collier, BAAF: Letter to The Times
9 April 1996
"Of course mistakes will occasionally be
made, and I welcome both the Chief Inspector's emphasis on proper
training and supervision for adoption workers and also the inclusion
in the draft Bill of an independent complaints procedure."
Community Care Article "Damage Limitation"
4-10 June 1998
"The European Court of Human Rights could
overturn the legal tradition that local authorities in the UK
are virtually immune from negligence claims, write Kristiina Cooper."
Moira Gibb, chairperson of the Association of Directors of Social
Services children and families committee, said: "But there
should be some clear thinking about how we can deal with these
cases of failure on the part of local authorities without absorbing
too many resources." Child law specialist Caroline Ball,
agrees. "I would campaign for a much better complaints procedure."
David Hinchliffe: H of C Debate NHS complaints: 9
January 2001
". . . a key component of any complaints
system should be its independence?"
The Guardian page 4 and
The Independent page 2, 17 January 2001
New Police Complaints System: The Home Office
has unveiled a new "independent" system for investigating
complaints about the police. A new independent police complaints
commission will take over from the Police Complaints Authority
and will have powers to bring in civilian investigators.
Case
Ms N, a single women of means, is approved as
an adopter by a voluntary adoption agency. Looking through an
adoption publication, she sees a child who might be suitable and
applies, through her agency, to the child's local authority to
be considered as a possible parent. The information on the child
(contained in Form E) is 18 months old; Ms N requests an update.
None is forthcoming. After many months, Ms N is turned down, despite
there being no other family on the horizon. The child, by now,
has spent three years in care.
The child is taken out of the country for a
long period with the foster family but apparently returns. Ms
N asks to be reconsidered. Only the Chief Executive can overturn
the adoption panel's decision. He upholds it. Ms N is told she
has no right to know about the child's fate after this point,
even though the child has, emotionally and on paper, been part
of Ms N's existence for almost a year. Ms N wishes to persist
but her only possibility is judicial review: the cost could go
well above £25,000.
No-one else, not even the Minister of State,
can overturn the decision made at local level—or examine
it other than for procedural matters.
What of the best interests of the child?
Still without a family and growing older in
care, the child has not, of course, been seen by the voluntary
agency: the Form E is now two years old.
The Chief Executive has not personally seen
the child.
The question is: has anyone?
Disappearances from Care
There is great anxiety over the fact that it
is possible at present for children to slip through the net, as
in the case of Aliyah Ismail, who died in the care of Harrow social
services as a prostitute aged 13.
Sometimes children or young people disappear
altogether, as was made evident in the Fred West case.
The latest Department of Health statistics show
that of the 6,800 children leaving care aged 16 and over, as many
as 850 are categorised in "Other" under "Final
Placements". According to the statistician, this could mean
that their destination was unrecorded or unknown. We believe this
is cause for worry.
ASSESSMENTS
Keen advocates and supporters are, among others:
The All Party Parliamentary Group on Adoption;
Jenny Kenrick of The Tavistock Institute;
Professor Sonia Jackson of Swansea University;
and
Dr Alexina McWhinnie of Dundee University.
There is an experimental reception/assessment
centre in Norfolk for teenagers coming into care, according to
a local newspaper report.
Camden is, reportedly, also looking to set up
a similar project.
See also
Health Committee Report and Proceedings 1 July 1998:
Conclusion 96: Planning, Assessment and Review.
"We are particularly worried by the SSI
findings that a significant proportion of children still are not
being assessed comprehensively and do not have individual care
plans, despite local authorities' statutory responsibilities in
this regard. We believe that this is an area where the DoH centrally
has a positive duty not only to monitor but, where necessary,
to intervene, to ensure that local authorities are not in breach
of the law by neglecting their responsibilities. We look forward
to receiving the DoH's proposals as to the action it intends to
take with regard to such authorities."
Conclusion 97:
"We support . . . ways of improving the
current process of assessment and review . . . Sensitive, objective
assessment of a child's needs and wishes is essential. Wrong decision
at this initial stage may have particularly serious consequences."
Conclusion 98:
"It is important that specialist mental
health services are not only provided during the course of children's
placements but that, where appropriate, there should be psychiatric
or psychological input at the crucial initial stage of assessment.
The fact that this is usually neglected at present almost certainly
leads to errors in placement and to mental health problems becoming
much more severe by the time they are eventually diagnosed."
Conclusion 123:
According to an SSI report 1995-96 "highlighted
significant concerns in areas where minimum statutory requirements
were not being met. In particular the study found that significant
proportion of children had not been assessed comprehensively,
and did not have individual care plans; standard of recording
were poor and there was little information about children's health
histories; and the range of placement was often insufficient to
meet children's need."
Sandra Gidley, House of Commons Debate on Adoption
and Children Bill 26 March 2001
". . . we have to remember that 67 per cent
of children in care have mental health problems. I should therefore
like there to be greater emphasis on properly assessing all children's
needs . . . for the sake of the children we have got to get everything
right. As drafted Clause 4 is both unclear and worrying . . .
the Bill seems to contain no provision to assign a duty of care
to the local authority, to ensure that children receive the best
possible services . . . we desperately need some joined-up thinking
on the issue . . .
DUTY OF
CANDOUR
Supporting Adoption: Reframing the approach by Nigel
Lowe and Mervyn Murch
Page 226. Footnote 16.
"There is a view (with which we agree) that
if people are considered suitable for the care of a vulnerable
child, then they should automatically be trusted with all available
information about that child."
Page 228.
"Depressingly all those (adoptive parents)
who attended disruption meetings following the breakdown, told
us that they then discovered most about the child's background."
"Even where information is given, a common complaint (expressed
not just by those adopters who experienced disruption) is that
case histories are not always complete and up to date . . . Social
workers had little to say about missing or misleading background
information as possible cause of disruption . . . Overall the
paucity of social workers' comments on this matter is disturbing
given that several authors . . . have identified the adopters'
lack of available information about the child as a key factor
associated with unstable and disruptive adoptive placement."
Page 236.
"Although disruption meetings are considered
desirable by agencies, they are not standard practice. Meetings
were held in only two of the five cases in our sample."
Page 332.
"Amongst the disappointed group were a number
of adopters who felt that their child's problems had not been
understated or not mentioned at all. Many of these commented that,
in the absence of accurate information, they had simply had to
`learn as you go'."
Page 333.
"Nothing hurts aspiring adopters more than
the feeling that they had been deliberately misled."
Page 225.
"A voluntary agency social worker spoke
of her involvement in cases with local authorities which withheld
information concerning children in their care. Had the information
been available at the time the parents were matched with the children,
she would not have supported the match. She now routinely asks
to see local authority files concerning children her agency is
asked to match with parents whom it has approved for adoption."
Pat Verity, Policy and Services Manager BAAF: article
"Community Care" 23-29 April 1998.
" . . . but many social workers still feel
that giving the families full information will either cause a
problem for the child in the family or prevent them being placed.
Collier and Verity agree that the case (W v Essex) highlights
the importance of accurate information but, says Verity, the regulations
governing fostering contain a get out Clause as local authorities
only have to provide the information they consider necessary for
the foster carer to care for the child."
Local Authority Circular LAC (98) 20
"It is unacceptable for adoption agencies
to withhold information about a child to the extent that the picture
of a child provided to prospective adopters is so lacking in substance
as to bear little relation to reality."
Cases
W v Essex County Council
A couple's claim for damages in negligence for
their psychiatric injury arising from the placement with them
of a foster child who was known to the placing authority as a
sexual abuser and who subsequently abused the parents' own children
was struck out because it was "not so clearly bad",
the House of Lords held. The parents had made it clear to Essex
CC that they were anxious not to put their children at risk by
having a known sex abuser in their home. The council and the social
worker knew that and also knew that the boy placed had already
committed an act or acts of sexual abuse.
(Reported 17 March 2000, Law Reports, The
Times).
Another recent case in the Court of Human Rights
(Powell v United Kingdom, 4 May 2000) reflected in its
findings with regard to a medical negligence case, the parallel
situation to be found currently in social services' cases:
"Whilst it was arguable that doctors had
a duty not to falsify medical records under the common law (Master
of the Rolls Sir Donaldson's duty of candour), before Powell
v Boladz there was no binding decision of the courts as to
the existence of such a duty. As the law stands now, however,
doctors have no duty to give the parents of a child who died as
a result of their negligence a truthful account of the circumstances
of the death, nor even to refrain from deliberately falsifying
records."
Family v Solihull (West Midlands) and Barnardo's
The House of Lords faces a test case of a family
who adopted an abused child. The family are not suing for negligence
but for deceit. They say they were deliberately misled about the
boy they were adopting. The parents argue that if they had known
the boy's history they would not have adopted him. They say their
five years of ignorance meant he was denied the correct treatment
which might have helped him.
The Council and Barnardo's deny there was any
failure to disclose information.
(Reported in The Independent, 17 July
1995).
Insurance
Forgotten Children: Christian Wolmar published 2000
Page 186.
"Moreover, the insurers made it clear that
if the councillors (in Clwyd) `misbehaved', compensation would
become the responsibility of the council and individual councillors
could then become liable since they have a fiduciary duty to their
council tax payers."
Page 188.
"The charities have also faced the same
issues with their insurance companies and have found, much to
their own embarrassment, that they are constrained even in the
ability to apologise, let alone pay out compensation . . . the
charities were advised that if they admitted liability, they would
be `stuffed' as one senior charity executive put it."
Page 188.
"The Waterhouse enquiry recommended that
the Law Commission should look at this aspect of the law to see
how the position of the potential conflict between the financial
considerations of the insurers, the public interest and the rights
of claimants can be resolved. At the time of writing, the recommendation
had disappeared into the bowels of the Government with little
hope of an early solution, since so many departments—Health,
Environment, Transport and the Regions, the Lord Chancellor's
office—were involved and issue is so complex."
Page 249.
"In a world governed by insurance companies
and informed by concerns over compensation, this is not an easy
task but if the risks are assessed and thought through from the
outset, change is possible."
Page 253.
"The need for an unreserved and unconditional
apology wherever these (abuse) scandals take place is a very necessary
starting point. . . Given the legal strictures outlined in Chapter
9 (insurance company issues) this is unlikely to happen in the
UK without a change in the law."
Felicity Collier, BAAF: article "Community Care"
23-29 April 1998
"Collier points out that the issue of negligence
is further complicated by the fact that some local authority insurers
prevent councils from owning up to a mistake and admitting liability."
Mr Roger Singleton (Barnardo's) to the Health Committee
on 1 June 1998, re Child Migration to Australia and Canada
"On the insurance matter, we are acting
on legal advice. You will be familiar with the fact that risks
are insured. The present position of our insurers is ultra cautious,
to put it mildly, on anything which would remotely resemble making
a public apology, and I do not think we need to dwell on speculating
why that is so. We have taken legal advice on the position of
our insurers and the legal advice to Barnardo's and its trustees
is that we should continue to be cautious although we are continuing
to press our insurers to try and ease their attitude where it
is absolutely clear that by the standards of the time a particular
migrant had a rough and difficult time. We want actually to be
able to formally say sorry on behalf of the organisation. The
only resources that the organisation would have to be able to
meet, for example, any compensation claims which flow from that
would be in relation to money donated for today's work and that
does mean that the trustees have to take very careful account
of the legal advice they receive."
The Health Committee's Third Report: 11 June 1998
111: Markedly different views have been expressed
to us by former child migrants about the issue of compensation
payments. Many believe that such a measure might impede the provision
of records. . . "
115: "We ask the Social Services Select
Committee in New Zealand to undertake a detailed inquiry into
the circumstances of former child migrants there. The Department
of Social Welfare has so far refused an inquiry for three reasons:
(i) the cost, (ii) the risk of further claims for compensation,
and (iii) the risk of precedent".
Report in The Times, 16 February 2000, re
Waterhouse report "Lost in Care"
Hundreds of lives ruined by "cult of silence".
"The Waterhouse tribunal was appointed in
1996 . . . after Clwyd County Council decided against publishing
a report by social services expert John Gillings into abuse of
children in care. The council feared it would be sued for defamation;
it was also warned against publication by its insurers because
of the `possible effect of compensation claims'."
Among the recommendations of Waterhouse: The
Law Commission should consider the legal and insurance problems
faced by councils publishing reports into child abuse. (We understand
the Law Commission has yet to report on this.)
Report of Health Select Committee, 1 July 1998
Overall conclusion No 320:
Time and again in this inquiry we have come
across evidence that enlightened legislation and regulations impose
duties on local authorities which are at present being widely
ignored. Central government appears to have no means either of
monitoring the extent to which this is happening, or of taking
steps to enforce local compliance with statutory responsibilities.
WHAT IS
THE ADOPTION
FORUM?
The Adoption Forum is a voluntary, independent
pressure group campaigning to promote well-founded and principled
adoption for children who cannot stay with their birth families.
We are concerned with both UK and international adoption.
The Adoption Forum's membership includes a wealth
of academics, social workers, lawyers, mental health specialists
and others professionally involved in adoption.
We also have a considerable number of members
with personal experience of adoption.
The Adoption Forum's history
The Forum was set up in September 1996 at a
meeting of 30 people professionally and personally involved in
adoption who were angered by the poor service offered to children
in need of new families and those interested in adopting.
Our interest from the outset was to ensure that
our ideas for change were based on strong evidence and sound academic
research.
Over the years we have run a media campaign
to alert the public to the deficiencies of the system; lobbied
governments and politicians; produced reports and submissions
to elected bodies; liaised with organisations working with children
or in children's interests.
The Forum's People
The Forum's Director, Liv O'Hanlon, is also
Clerk to the All Party Parliamentary Group on Adoption and has
accepted a place on the Department of Health's Adoption and Permanence
Partnership Council. She is a member of the Campaign for Inter-Country
Adoption and the Network for Inter-Country Adoption. She and her
husband have two children through international adoption.
The Forum's Deputy Director, Pauline Dancyger,
is a senior social worker in an inner London Borough, latterly
with special responsibility for post-adoption and inter-country
work. She is an adviser to the Tavistock Institute, and, inter
alia, a founder member of the South-East Post-Adoption Network,
the Adoption Agencies Consultants Group on Inter Country Adoption
and the Network for Inter-Country Adoption.
Sue James, Policy and Research Director, is
a former magistrate sitting on a youth panel, now an independent
visitor for NCH Action for Children. She was a trustee of Norwich
Consolidated Charities for 12 years. She and her husband are parents
to four birth children and to one child who was formerly in the
care system.
| 
