APPENDIX 16
Memorandum submitted by the British Association
of Social Workers (BASW)
We welcome the opportunity to submit written
evidence to the Special Select Committee examining this Bill,
and hope to have the opportunity to expand on it in oral evidence.
It is important that the voice of practitioners should be heard
alongside those of adopted people, adopters and birth parents,
and of agencies and their senior managers.
In organising our submission, we have generally
followed the order in which matters are dealt with in the Bill
itself. In paragraphs one to nine, however, we have brought together
a set of issues which are in our opinion, of great importance,
are closely interrelated and are dealt with in widely separated
clauses.
The paramountcy of the child's welfare (Clause
1) and dispensing with parental consent (sub-clause 44(2)(b))
1. We agree that the child's welfare should
be paramount in all decisions relating to adoption except that
it is of the utmost importance that it should not be paramount
when a court is deciding whether to dispense with a parent's consent.
It is equally vital to amend sub-clause 44(2)(b), which provides
that parental consent to adoption may be dispensed with if the
child's welfare requires it. In saying this, we are following
a recommendation of the Review of Adoption Law (1992),
the comprehensive and expert review from which the present Bill
largely derives, which we believe identifies a vital principle
in adoption law. The key point is that the law should not allow
a child to be removed from their family and have the legal relationship
with their parents irrevocably severed simply because an adoption
agency and a court are satisfied that another family could do
a better job. There should be some limit on the State's right
to intervene compulsorily in family life. Some may see this as
a fundamental moral principle. For others it represents part of
a contract between the State and the family, under which parents
shoulder the major responsibility for the upbringing of their
children, and in return receive certain benefits and services
and guarantees against unwarranted intervention. Most people will
probably see it as plain common sense. The Children Act 1989,
when dealing with care orders, recognises that grounds have to
be made out before the State can step in, and sets down "threshold
conditions" which have to be proved before the court is free
to consider whether it would be in the child's interests to make
a care order. Once the grounds for intervention are established,
the child's welfare becomes paramount, but not before. The legal
effects of an adoption order are much more far-reaching than those
of a care order, and similar safeguards placing sensible limits
on the state's power to intervene compulsorily in family life
are therefore all the more important.
2. With the Bill as it stands, it would
be possible for a child to be adopted against a parent's wishes
with no court ever having been satisfied that the parent has failed
to meet the child's needs or is unsuitable to care for the child.
This can happen under sub-clause 18(1), which enables a local
authority to apply for a placement order on a child whom they
are looking after at the parent's request (a service which the
Children Act 1989 classifies as family support), and also under
sub-clause 18(2)(a), where a local authority can apply for a placement
order after applying for a care order (or even merely for a supervision
order) but before the threshold conditions for a care order have
been established. In both these situations the court may then
make an order authorising the child's placement for adoption.
Under sub-clause 18(2)(a), the child could even still be living
at home when the placement order is applied for, and although
it is unlikely that this would happen, making it possible is not
good law. The only safeguard for parents is sub-clause 1(4)(f),
which sets out considerations relating to parents and other relatives
to which the court must have regard, but these considerations
count for little or nothing if they do not fall on the same side
of the scales as the welfare of the child. Paramountcy will always
tip the scales conclusively. The court will make an adoption order
if it is on balance even marginally conducive to the welfare of
the child, quite irrespective of whether there is parental consent
or parental opposition. The requirement in sub-clause 1(4)(f)
for the court to have regard to the child's relationship with
a parent, to the value to the child of this relationship continuing,
to the parent's ability to look after the child and to her or
his wishes and feelings turn out to have very little relevance.
Because the child's welfare is not only paramount but is also
the criterion for deciding whether to dispense with parental consent,
the only consideration is whether it will be better for the child
to be adopted than not to be.
3. Of particular concern is the effect that
the wording on dispensing with consent will have on the provision
of accommodation for children as a family support service under
Part III of the Children Act 1989. This is a service in which
local authorities look after children on behalf of their parents,
and at their request, while helping the parents to achieve a situation
in which their children can return to them. This service includes,
for example, the provision of respite care for children with disabilities.
Parents should be able to have confidence that, by entrusting
their children to the local authority, they do not risk setting
in train a series of events which ends with their children being
irrevocably lost to them. There are, of course, situations in
which children are looked after as part of a family support service
and it subsequently proves impossible or contrary to their welfare
for them to return home. These children form a small minority,
but in such situations it is obviously important that a substitute
family placement should be found for them, and that there should
be appropriate legal procedures for this. What concerns us is
that the Bill has no threshold which must be crossed in order
to establish the State's right to intervene. It is ironic that
a Bill which is intended to harmonise adoption law with the Children
Act 1989 should pose such a threat to it. It is also worth noting
that the Children Act itself actually abolished the High Court's
power in wardship to place a child in local authority care using
only the welfare test.
4. The test for dispensing with parental
consent in sub-clause 44(2)(b) also fails to follow the recommendation
of the Review of Adoption Law. The test proposed by the
Review was that the court should be satisfied that the
benefits for the child of adoption are so significantly greater
than those offered by any alternative as to justify dispensing
with consent. We support this wording. It continues to give the
child's welfare great significance while creating space for other
relevant considerations. It must be remembered that a child's
future welfare is not a clear-cut issue. Particularly at the stage
when a local authority applies for a placement order, there is
likely to be more than one placement option which would be consistent
with the child's welfare, and there will be some uncertainty as
to which of these options will turn out best. Decisions about
children's future welfare are based on uncertain predictions.
Before dispensing with a parent's consent, and irrevocably ending
their parenthood, it is reasonable that the court should ask itself,
"How much better for the child is adoption likely to be,
and how satisfied are we that this is the case? Is the benefit
to the child sufficiently significant, and are we sufficiently
confident that it will in fact arise, to justify us in irrevocably
ending this person's parental status?"
5. Sub-clause 1(8)(c) should be amended
to provide that references to the court's making an order do not
include its dispensing with parental consent. Sub-clause 44(2)(b)
should be replaced with the wording on dispensing with consent
recommended by the Review of Adoption Law.
What kind of placement order?
6. The replacement of freeing for adoption
by placement orders is to be welcomed, but in our view the Bill
has opted for the wrong kind of placement order, and the proposals
we put forward below, for a broader type of placement order to
be introduced by appropriate amendment of the Children Act 1989,
would make for a very substantial improvement of the law.
7. Local authorities have a duty to enable
children they are looking after to live with a parent, relative,
friend or other person connected with them unless this would not
be reasonably practicable or would not be consistent with the
child's welfare (s23(7), Children Act 1989). The decision that
it is impracticable, or inconsistent with the child's welfare,
to be restored to his or her parents, and that some form of long-term
or permanent substitute family placement should therefore be found
for the child, is a crucial one, and it can of course be the start
of a process which will lead to an application for an adoption
order. This decision, which is taken within the local authority
with no involvement of a court of law, is often far more significant
in reality in determining the child's future than subsequent adoption
proceedings, which may reach the court only when the passage of
time has made other options either impracticable or much less
likely than they might have been at an earlier stage to be in
the child's interests.
8. As professional practitioners involved
in taking these decisions to cease attempts at rehabilitation
and seek a substitute family placement, we consider that they
would more appropriately be taken by a court, at a hearing where
all concerned parties could be heard. The main issue before the
court would be whether it is satisfied that it is, and is likely
to continue to be, either not reasonably practicable or else inconsistent
with the requirements of the child's welfare for the child to
live with a person who already has parental responsibility (or
whose parental responsibility under a residence order has been
ended by the making of a care order). If the court was satisfied
on this point, it would then release the local authority from
its duty to seek to enable the child to return home by making
a placement order which would authorise the authority to make
a long-term or permanent substitute family placement. This might
be an adoption placement, or with a view to special guardianship
or a residence order, or with foster parents committed to offering
the child a permanent home.
9. A placement order of this kind should
not restrict a parent's subsequent right to refuse consent to
the making of an adoption order (as distinct from an adoption
placement), but evidence accepted by the court making the placement
order might well be relevant to a subsequent decision as to whether
to dispense with that consent. This preservation of the right
to oppose the making of the adoption order makes possible a further
improvement to the Bill. The Bill provides for parents to consent
either to adoption by prospective adopters identified in the consent
or to adoption by any prospective adopters chosen by the agency.
There is not always, however, a free choice between the two options.
If the agency finds itself under a duty to apply for a placement
order, then the choice of consenting to adoption only by adopters
identified in the consent disappears. It is relevant to ask at
this point what a responsible parent should do. It is at the very
least arguable that the responsible parent, accepting that adoption
would be in the child's best interests, continues to exercise
her parental responsibilities as fully as she can, and therefore
carefully considers all relevant information about specific adopters
proposed by the agency before agreeing to the adoption. Our proposals
would make this possible.
Other matters in Clause 1
10. Sub-clause 1(4)(f) applies only to relationships
which the child has already established. When determining the
future of children, particularly those who are very young, it
is important that both the adoption agency and the court should
also consider relationships, for example with grandparents, which
it may be beneficial for the child to develop in the future. Such
considerations can be relevant to deciding whether the child's
interests would be best served by an adoption order or by an alternative
such as a residence order or special guardianship. Sub-clause
1(4)(f) should therefore also refer to relationships which may
be established in the future.
11. In the same sub-clause, it is our understanding
that fathers who do not have parental responsibility do not count
as relatives, and that it will therefore be only at the court's
or the adoption agency's discretion that their relationship with
the child will be considered. Fathers who do not have parental
responsibility should be specified as people whose relationship
with the child should be presumed to be relevant.
The duty to provide a comprehensive adoption service
12. Sub-clause 3 improves on existing law
by making it clear that the duty to provide a service to adopted
people does not cease when they reach 18. In sub-clause 3(1),
however, there should be a reference to relatives as well as to
parents and guardians. As drafted, the Bill makes support services
for grandparents and siblings of adopted children merely discretionary.
13. Clause 4 needs substantial improvement.
A distinction should be drawn between the basic service of social
work support, which should always be available as the main component
of adoption support services, and additional services, such as
the payment of an adoption allowance, where there is a case for
some exercise of discretion. Social work support in connection
with adoption should always be available, and it should not initially
be conditional on an assessment of a person's needs having already
been carried out. It should not be open to a local authority to
decide whether or not to provide it, although once the order is
made its duration and intensity should be discretionary. We are
not sure how this principle could best be written into the law.
One of our concerns with the present wording is that it may lead
to an excessively bureaucratic approach in which nothing will
be done to help people until standardised assessment forms have
been completed and processed through complex rationing machinery.
The end result of this approach can be that time and money which
could have been spent on helping people is spent on deciding that
their need for help does not have sufficient priority.
14. Sub-clause 4(1) restricts people to
asking for support services for themselves. It does not provide,
for example, for adopters to seek support for their child, or
for the local authority to assess the child's needs at the adopter's
request.
15. Sub-clauses (5) and (6) are also unduly
bureaucratic. Any request for a one-off simple piece of help,
information or advice triggers, if the local authority agrees
to the request, a duty to prepare a plan and to keep it under
review, in some cases beyond the child's eighteenth birthday.
Nothing could be better calculated to discourage authorities from
responding to straightforward requests. For situations where continuing
help is required, a plan which is kept under review is clearly
needed, but once again we are concerned that the wording of these
sub-clauses may create unnecessary administrative expense.
Placement orders within adoption law
16. Having earlier (paragraphs 6 to 9) put
forward proposals for a different kind of placement order, we
now comment on placement orders as provided for in the Bill as
it stands.
17. Where a local authority has applied
for a placement order and the application has not been disposed
of, the Bill provides that the child is to be treated as looked
after by the local authority. Whether the local authority can
during this time, ie pending the hearing of the application, prevent
the child's removal appears to depend on whether the child is
already subject to a court order. As with the draft Bill in Adoption—a
Service for Children, it appears that an application for a
placement order in respect of an accommodated child will not prevent
the parent from resuming care of the child. This appears to us
to be reasonable, but the position needs to be clarified.
18. Clause 18 does not provide any time
to seek a parent's consent. As soon as a local authority decide
that a child they are looking after ought to be placed for adoption,
they are immediately put under a duty to apply without delay for
a placement order rather than seek, the parent's agreement to
adoption. This cannot be what is intended and the clause should
be redrafted to make it clear that the local authority is expected
to have taken time to work with the birth parents on the plans
for the child and to explore with them whether they will consent,
before applying for a placement order. It may be that the intention
is that this work with parents should be undertaken after the
placement order has been applied for, but this is not satisfactory.
19. It is not desirable that a placement
order should remain in force for years. Its purpose is to authorise
the agency to place the child. If the child is not placed within,
say, two years, the court should be required to review the order.
20. Clause 20 provides for the revocation
of placement orders. Unless the application for revocation is
made by the adoption agency, leave of the court is required. Sub-clause
20(3) prevents the court from giving leave if there has been no
change of circumstances. We suggest that it is unnecessary to
fetter the court's powers in this way. There could well be confusion
over what constitutes a change of circumstances, especially when
the purpose of the order is to achieve an important change in
the child's circumstances by placing him or her for adoption.
If the child remains unplaced, that failure to change circumstances
could well form part of a case for revoking the order. Sub-clause
20(3) should be deleted.
21. Assuming that placement orders remain
restricted to adoption, it will need to be made clear that an
alternative, satisfactory, non-adoption placement justifies the
revocation of a placement order.
22. Sub-clause 26(1) provides that a care
order made before or at the same time as a placement order has
no effect while the placement order is in force. This seems misguided.
The care order gives the local authority important duties, while
the placement order is primarily an authorisation. We can see
no reason why the care order should not continue to have effect,
with the placement order supplementing it. Sub-clause 26(1) should
be deleted.
23. An important purpose of the placement
order hearing should be for the court to confirm the local authority's
view that to return to the birth family would no longer be in
the child's interest. Before making a placement order, therefore,
the court should be satisfied, not only that the child's welfare
will be best served by seeking an adoption placement, but also
that it is, and in all likelihood will continue to be, either
impracticable or contrary to the child's interests for a parent
or other person with parental responsibility to take over the
child's care. This can be achieved by an addition to sub-clause
18(7).
24. By Clause 18(2)(a) the local authority
are instructed to apply for a placement order if they are satisfied
that the child should be placed for adoption and the child is
the subject of an application on which a care order could be made.
This form of words includes, as well as a care order application,
an application for a supervision order It seems perverse to provide
that an application for a supervision order, which envisages that
the child will remain at home, could be followed up with an application
for a placement order. Sub-clause 18(2)(a) should be restricted
to applications for care orders. Even if this change is made,
there will be cases in which the child is still living at home.
(There may be no emergency protection order or interim care order
in force, and it is not impossible that a decision that the child
should be placed for adoption could be made while the child is
at home; it depends on the history of the case prior to the application
for a care order.) We do not think it is appropriate to apply
for a placement order in respect of a child living at home, and
would therefore like to see sub-clause 18(2)(a) further amended
so that it refers only to a child whom the local authority are
looking after. We have in any case serious reservations about
placement orders being applied for when a local authority has
applied for a care (or supervision) order and that application
has not been disposed of. It is unreasonable to require a parent
who is contesting a care order application to enter at the same
time into discussions about the possible adoption of the child.
Also, relatives who may well be able and suitable to care for
the child often do not come forward until a care order is made,
in order to avoid competing with the parents. It would be preferable
for the care proceedings to be completed before the local authority
applies for a placement order. We suspect that the main reason
why the Bill does not follow this course is the inordinate length
of time taken by some care proceedings, but this is already a
disservice to children and should be tackled. As a compromise
proposal we recommend that where a local authority applies for
a placement order after applying for a care order, but before
that application is disposed of, the court should be satisfied
that the threshold conditions for a care order are met before
making a placement order.
Consents
25. The following observations on consents
are additional to our discussion of dispensing with parental consent
in paragraphs 1 to 5 above.
26. The Bill, unlike the previous administration's
draft Bill, makes no provision for the child to consent to adoption.
Our view is that:
— the child should be a party to the
proceedings;
— a child of sufficient understanding
should have the right to refuse consent to adoption and the court
should then not have the power to make an adoption order;
— the child should also have the right
to consent to the adoption, to refrain from giving or withholding
consent, and to express any other views or wishes in connection
with the application and to have them taken into account.
27. Clause 16(1) requires consent to an
adoption placement only from parents and guardians. The consent
of other people holding parental responsibility, eg under a residence
order or under Clause 92 of the Bill (acquisitions of parental
responsibility by step-parents) should also be required.
28. A parent or guardian who has consented
to a child's placement for adoption, or whose child was placed
under a placement order, needs the court's leave in order to oppose
the making of an adoption order. Sub-clause 39(7) precludes the
court from giving leave unless it is satisfied that there has
been a change of circumstances. We think this restriction is unnecessary
and undesirable. There may, for example, be grounds for opposing
the particular adoption application. It would not look reasonable
for a court to refuse a parent leave to oppose an application
which the court itself was minded to refuse. Sub-clause 39(7)
should be deleted.
29. Sub-clause 44(3)(a), like the existing
law, defines consent as "consent given freely, unconditionally
and with full understanding of what is involved". There is
a problem with the word "freely". Whilst it is of course
important that consent should not be obtained under duress or
through improper pressure, it is not the experience of most parents
that they are in a position to consent "freely". Almost
invariably, their perception is that they are left by force of
circumstances with no alternative. They therefore find it very
difficult to sign a form which requires them to state that their
consent is given freely. The word "freely" should be
replaced by a phrase which more tightly defines an absence of
improper pressure of duress.
Parental responsibility for prospective adopters
30. Sub-clause 22(3) gives parental responsibility
to prospective adopters while the child is placed with them. We
believe that it is not appropriate to give parental responsibility
to prospective adopters. The agency is empowered to remove the
child from them, and they are legally free to hand the child back
to the agency. This does not accord with the carrying of parental
responsibility in other circumstances. It would also constitute
the only situation in which a local authority or a voluntary organisation
would have the power, without reference to a court, to confer
parental responsibility.
Refusal of Adoption Orders
31. Unlike current legislation, the Bill
does not say what happens to the child if the court refuses an
application for an adoption order. This gap needs to be filled.
The status conferred by adoption
32. Sub-clause 51(1) provides that an adopted
person is to be treated in law as if born as a child of the adopter's
marriage, or, in the case of sole adopters, as if born to the
adopter in wedlock. This archaic provision was probably initially
intended in part to make sure that adopted children were not treated
as illegitimate. The wording is not in accordance with the facts.
Adopted children are not born to their adopters and adopters are
discouraged from thinking of them and treating them as if they
were. The importance for the child of knowing that she or he is
adopted and of knowing about his or her life history before adoption
has been recognised for many years, and a clause which implies
that in law these things are different is most unhelpful. It would
be preferable if the clause were to say that the law treats an
adopted person in the same way as it treats a child of the adopters'
marriage. This would at least get rid of the "as if"
wording which so unhelpfully implies a legal pretence or fiction
which is at odds with the facts.
33. In sub-clause 51(2) it should be made
clear that, although adopted persons are to be treated in law
as not being the children of anyone except their adopters, that
does not mean that they are to be treated as never having been
the child of their birth parents.
The adoption of step-children, and parents' adoption
of their own children
34. Sub-clause 43(2)(a) is a welcome improvement
on the present law, making it possible for a step-parent to make
a sole application to adopt a step-child. At present both spouses
have to make a joint application, with the effect that one of
them, usually the woman, has to adopt her own child. As the Minister
of State (Mr Hutton) said in the Second Reading debate, "that
is frankly ridiculous". Yet the present option of a joint
application is retained in the Bill as sub-clause 42(2). There
was a time when it was not uncommon for an unmarried mother (as
she would then have been referred to) to apply to adopt her own
child, in order to spark the child the stigma of illegitimacy,
but, fortunately, there is no longer a case for adoptions of that
kind. It is now time not only to provide a new framework for the
adoption of step-children, but also to remove all options for
parents to adopt their own children. This requires the deletion
of sub-clause 42(2) and a new provision debarring parents from
applying to adopt their own children.
35. The Bill also introduces, in Clause
92, a new provision enabling a step-parent to acquire parental
responsibility for a step-child, either by agreement or under
a court order. This welcome development (which provides an alternative
to custodianship for step-parents which the Children Act 1989
unaccountably abolished) will normally be preferable to adoption
for step-children, as in most cases it is not desirable in the
child's interest to sever totally the legal relationship between
the child and one of his parents. This principle was expressed
in the Children Act 1975 in relation to custodianship, but the
present Bill treats parental responsibility and adoption for step-parents
as wholly unrelated issues, and the court is given no power to
make a parental responsibility order in adoption proceedings.
A new clause is needed to the effect that the court shall treat
an application for an adoption order by a step-parent as an application
for a parental responsibility order unless satisfied that an adoption
order would serve the child's interests better than a parental
responsibility order.
Special guardianship
36. Clause 94 amends the Children Act 1989
to create special guardianship. We very much welcome this new
alternative status enabling people to be legally recognised as
children's permanent substitute parents without totally extinguishing
the legal status of their birth parents. The Bill does not satisfactorily
set out continuing responsibilities of local authorities towards
children who move from being "looked after" to acquiring
special guardians. Clause 94(5) seems to entitle them to leaving
care services, but there is no similar entitlement to services
before they reach the age of 16. It could of course, be argued
that the local authority's general family support duties under
Part III of the Children Act should be sufficient, but this argument
is not advanced in relation to adoption, where Clause 3 of the
Bill lays down a duty to provide post-adoption services. Similar
services should be available for special guardians, the children
whose guardians they are, and those children's birth relatives,
and a new section is therefore required in the Children Act 1989,
paralleling clause 3 of the Bill.
37. There will often be a need to pay a
special guardian's allowance, and provision for this is needed.
It must be more robust than the unsatisfactory provisions under
which local authorities now pay, or do not pay, residence order
allowances to former foster carers.
38. We have some concern about the proposed
new s14C(1)(b) in the Children Act, which entitles special guardians
to exercise parental responsibility to the exclusion of parents.
This may be too all-embracing. Alternatives may be to specify
rights and responsibilities in more detail in the Bill or to provide
that this entitlement may be modified by provisions made in the
particular special guardianship order. (The proposed new s14E(4)
already states that a special guardianship order may contain provisions
which are to have effect for a specified period.)
39. In many modern adoptions, adopted children
have continuing contact with a birth parent who remains a significant
figure in their lives. Special guardianship provides a legal framework
which corresponds better than adoption law to the reality of these
adoptions. We therefore hope that special guardianship will become
a very significant alternative to adoption, and that it will be
public policy to encourage its use. It would therefore be appropriate
to introduce into the Bill a requirement that a court hearing
an application for an adoption order shall treat it as an application
for special guardianship unless satisfied that an adoption order
will better serve the child's welfare.
Further recommendations for the Review of Adoption
Law
40. There are several other recommendations
in the Review of Adoption Law which should be enacted in
the Bill. They include:
— the legislative framework should
underline a child's right to know that he or she is adopted;
— a court hearing an application for
a placement order or an adoption order should have a duty to consider
making a contact order; and
— parents should have a right to attach
an explanatory statement to their consent.
April 2001
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