APPENDIX 27
Memorandum submitted by ATD Fourth World
PART I—INTRODUCTION
1. INTRODUCTION
"Whether you're rich or poor, the thing
is your children are your children. We always say there's one
law for the rich and there's one law for the poor." [10]
ATD Fourth World has 25 years of experience
of family support in the UK. We work specifically with families
living in persistent poverty, most of whom are dealing with Social
Services intervention. The majority of the adults with whom we
work have been in care as children and many have themselves been
adopted. As parents, they are suffering the involuntary removal
of their own children into care and, far worse, adoption. Over
the past four years, through regular policy forums, ATD Fourth
World has been empowering families and individuals living in long-term
poverty to bring their experiences directly to policy makers whose
decisions profoundly affect all aspects of their family life.
Birth families seriously disadvantaged by poverty
are the least likely to be heard and the least likely to be able
to fight for their rights and the rights of their children. This
is compounded by the false but widespread assumption that birth
parents are—at best—socially inadequate and unfit
to parent their children, and—at worst—people who
have been cruel and abusive. This assumption of guilt creates
shame for parents who have lost children through lack of parenting
skills, insecure housing and the many other devastating effects
of a lifetime of poverty and social exclusion. The following response
to the Adoption and Children Bill comes from the perspective of
birth parents living in poverty and their adopted children. The
political voice of birth parents, relative to adoptive parents,
is weak due to their lack of personal and financial resources.
"For people like us, help comes too little,
too late. It's always a reaction—never what we need, when
we need it."
The Adoption and Children Bill assumes that
Social Services are being adequately resourced to carry out the
necessary preventative family support work and therefore that
the children who are in long-term care are categorically unable
to return home. However, the reality on the ground to which the
Bill will apply is one of a general lack of family support services.
Due to a massive lack of financial and human resources, Social
Services are currently budget-led not needs-led. The result is
that a majority of Children and Family cases are crisis-driven
as opposed to the ideal of preventative family support. Indeed,
this state of affairs contravenes Article 18(2) of the Convention
on the Rights of the Child: "States Parties shall render
appropriate assistance to parents and legal guardians in the performance
of their child-rearing responsibilities and shall ensure the development
of institutions, facilities and services for the care of children".
Therefore, many looked after children who could have remained
with their family given the right support at the appropriate time,
will be at risk of being adopted under this Bill.
Adoption is a drastic measure with far-reaching,
lifelong implications for the adopted child and the birth parents.
We do not believe that adoption as it currently stands is in the
best interest of the child except in very exceptional circumstances.
Equally, adoption should never happen without the birth parents'
consent except in very exceptional circumstances. For the child,
it is a right to know and be cared for by his or her parents under
Article 7(1) of the Convention on the Rights of the Child. For
the birth parents, the right to marry and found a family is a
human right under Article 12 of the European Convention on Human
Rights. Moreover, Article 8 states "everyone has the right
to respect for his private and family life, his home and his correspondence".
"What the adopters have is a desire for
your child. That desire cannot be called a "right".
It is a wish for something not naturally theirs."
We shall further argue that in the best interest
of the adopted child full contact with the entire birth family
should always be maintained—except with individual perpetrators
of sexual abuse and/or when the child expressly wishes not to
have contact with a person.
PART II—AREAS OF CONCERN ARISING FROM
THE BILL
2. CONSENT
"We lost our child to adoption, and that
child was never ever harmed, they actually decided to take her
away before the child was born, and that's completely unacceptable.
Under the 1989 Children's Act you must have an investigation of
the child's circumstances before they are taken away."
It is important for society to guard against
the possibility of social engineering through adoption of children
from families living in persistent poverty into middle class adoptive
families. This is particularly important given the statistics[11]
on the types of employment or indeed unemployment of birth parents
and adoptive parents. Eighty nine per cent of birth mothers and
68 per cent of birth fathers are unemployed. Less than 2 per cent
of birth parents are employed in professional, managerial or technical
positions whilst 57 per cent of adopters in full time employment
hold such posts. If such social engineering were to occur, it
would be in contravention of the European Convention on Human
Rights, Article 14, which protects against discrimination on any
ground, including social origin, property, birth or other status
and Article 8, the right to respect for private and family life.
We are concerned that section 44(2), which allows
for the court to dispense with parental consent to placement or
adoption based on the welfare of the child, does not refer back,
on the face of the Bill to the welfare checklist in section 1(4),
and in particular to subsection (e): the need to consider any
harm which the child has suffered or is at risk of suffering.
Explicit reference to the threshold criteria of harm should be
made on the face of the Bill in section 44(2) on dispensation
of parental consent, not left to the explanatory notes.
The threshold test of harm should be carried
out before a decision of non-restoration to the family is taken.
Birth parents' experience of current practice is that adoption
is in effect decided upon long before any court hearing. Social
Services start to reduce the length of access visits and eventually
stop contact to prepare the looked after child for adoption. The
level of support to the birth family is also reduced once social
workers have decided that adoption is the plan for the child.
Such decisions on contact and non-restoration should only be
taken by a judge in court. This is in accordance with the
right to a fair hearing under Article 6 of the European Convention
on Human Rights.
Under the new Bill the process of deciding for
adoption is further speeded up, thereby hindering parents access
to the legal system and justice. Poverty prevents birth parents
from accessing the best legal representation to fight losing their
child to adoption. Legal services provided under the Legal Aid
Scheme, despite the theoretical quality checks of the solicitors'
franchising process, are not always of the best quality and the
poorest families in the most difficult situations often suffer
most from this. Where a family have no telephone and sometimes
no fixed address, or where under the stress surrounding them it
is difficult to find the courage to return phone calls or answer
letters, or have faith in any professionals, it can take enormous
dedication on the part of individual lawyers to see that a client's
prospects of a fair hearing do not simply fall through the net.
Moreover, the experience of birth parents is that there is a tendency
amongst solicitors to refuse to take the case, as they feel sure
that adoption will go ahead anyway so there is little point fighting
it.
We oppose the use of the words freely and
unconditionally to define "consent" in section 44(3)(a).
The White Paper indicated that the wording of the adoption consent
form would be changed to better reflect the birth parents' feelings.
Many birth parents although able to recognise their own inability
to parent their children, find it impossible to sign a form which
states that their consent is given "freely and unconditionally".
Consent forms should be worded so that the birth parents can make
a statement about not agreeing to the adoption whilst still having
their child's best interests at heart. This should be included
in the definition of consent in the Bill so that the form of consent
can reflect this.
We endorse BAAF's recommendation that the
word "freely" be replaced by "without improper
duress or inducement". Being pressured to sign is presently
a common experience of birth parents living in poverty. Experiences
of inducement include: Social Services tricking the parent into
signing by offering services; telling the parent that their child
will be far better off with wealthier adoptive parents. Experiences
of duress include: Social Services making threats of keeping the
child in care permanently, never to be returned home; daily pressure
before and directly after giving birth; pressure on a mother who
has post-natal depression. The six weeks' grace given to mothers
after giving birth in section 44(1) does not sufficiently protect
them from improper duress at a very vulnerable time, which may
continue for months after the birth. We recommend that section
44(1) read "Any consent given by the mother to the making
of an adoption order is ineffective if it is given less than three
months after the child's birth."
We are concerned that targets to increase
the number and speed of adoptions, mentioned in the White Paper,
will increase the chance of inappropriately and unjustly placing
children for adoption. Targets to increase the number and
speed of adoptions may counter the best interests of children.
Real success of legislation to improve the welfare of children
would be measured by targets to reduce the number of children
at risk of harm through the provision of support services best
suited to each child's individual circumstances.
We welcome Section 1(4)(a), which states that
the court or adoption agency must have regard to the child's ascertainable
wishes and feelings regarding the decision. However, we are disappointed
that the views of the child are not given higher regard throughout
the rest of the Bill. Birth parents' with whom we work have suggested
that the views of their child have not been taken into account
and that guardians ad litem do not always give the views
of the child, but what they perceive to be in the child's best
interests.
We endorse the wish of the child over the wish
of the parents at every stage of the proceedings. Decisions are
being made concerning the entire lifetime of the child; the child's
views should be of prime importance. The Bill should therefore
reflect this by making statutory the mechanisms for ascertaining
the child's views and ensuring that they are taken into account.
The Bill omits to refer to the consent of the child concerned.
If a child above age 10[12]
expressly states that she or he does not want to be adopted then
there should be no adoption.
3. THE RIGHT
TO IDENTITY
The right to identity is an extremely important
issue central to the debate on the child's welfare under adoption.
According to Article 8.1 of the UN Convention on the Rights of
the Child, States parties should undertake to respect the right
of the child to preserve his or her identity, including nationality,
name and family relations as recognised by law without unlawful
interference. It is therefore vitally important that courts and
adoption agencies have regard to this.
Our experience working with people who have
been adopted as children and have since tried to find out about
their birth parents is that they are extremely ill prepared to
confront their past. Not knowing their background causes psychological
difficulties and lack of self worth. Adopted children are often
denied access to their origins, and therefore a large part of
their identity. Such a denial of a basic right will cause trauma
at some stage in that person's life. If trauma results whilst
still a child, the stability of the adoptive placement may be
threatened. However, if an adopted child has immediate and ongoing
access to his or her origins, the process of coming to terms with
who they are and where they come from will help to promote the
child's self esteem and positive identity. Knowing his or her
roots does not lessen the love of the adopted child for his or
her adopted parents. The Bill should serve to challenge this common
misconception by making access to a child's origins statutory,
even in cases of closed adoption where the child is not able to
maintain contact with his or her birth family.
Section 51 of the Bill states that an adopted
person is to be treated in law as if the person had been born
as a child of the marriage of the adopter or adopters. The wording
as it stands serves to continue the myth that the adoptive parents
are the actual birth parents. It should be worded "adopted
children are to be treated in law in the same way as a child born
of the marriage."
To preserve identity, an adopted child should
not be issued with what is in effect a new birth certificate (as
set out in Section 61(4)) but with a certificate of adoption in
addition to his or her original birth certificate. This would
be more in line with Article 7.1 of the UN Convention on the Rights
of the Child whereby the child shall be registered immediately
after birth and shall have the right from birth to a name, nationality,
and as far as possible, the right to know and be cared for by
his or her parents. The child should also be allowed to keep their
birth surname (jointly with the adoptive surname) if desired.
These measures would go some way toward fully upholding the right
of adopted children to know who they are and where they come from.
4. CONTACT
"You hear about brothers and sisters
having to search for each other or be reunited after years. For
us we don't have to go around looking for one another. That is
one good thing about it all, being together."
The deep psychological effects on the identity
and self-esteem of a child subjected to a closed, non-contact
adoption, which severs all ties with birth family and therefore
origin, must be recognised. Current "open" adoptions
do not go far enough to alleviate this traumatic experience. Children
feel rejected, and patterns of rejection often continue throughout
their lives. Adoption attempts to create a new history and can
bring children into conflict with their past and cause problems
of personal identity. Fully-open adoption[13]
is a means to countering the conflict and trauma by supporting
children in understanding their lives in a way that is respectful
and non-judgemental of background and heritage. Children should
not be made to feel ashamed of their backgrounds and should not
be denied the right to ongoing contact with their birth family
and support to establish or maintain positive relationships with
them. Simply because it has been decided that adoption is in the
best interests of the child, does not mean that it is contrary
to the best interests of the child to maintain contact with his
or her birth family. This is also his or her right under Article
9 of The Convention on the Rights of the Child: "States Parties
shall respect the right of the child who is separated from one
or both parents to maintain personal relations and direct contact
with both parents on a regular basis, except if it is contrary
to the child's best interests." Fully-open adoption is a
better means of supporting both the adopted child and the birth
family in coping with the complex psychological trauma of adoption.
"If prospective adopters are resistant
to any information or contact that would benefit the child, then
they are adopting for themselves because they want the love of
that child exclusively. They're not the people we should be letting
have children anyway."
Research[14]
has shown that: maintaining contact can contribute to the stability
of placements; children can maintain attachments to a number of
adult/parental figures; and security and positive sense of identity
for children in long term care does not necessarily lie in the
severing of connections and placement for adoption.
Currently, the Bill leaves provision for contact
following a placement order to the courts' discretion (Section
23(5)) and makes no reference to contact following an adoption
order (Sections 38 to 49). The Adoption Contact Register under
Section 65 is only for adopted persons who have reached the age
of 18, not adopted children. The Bill has omitted to recognise
the enormous benefits of contact for adopted children and in so
doing is denying them access to the lifelong resource that their
birth family represents.
In the best interests of the child, the Bill
should make specific provision for contact following adoption
and placement orders. In the best interests of the child, there
should be a presumption in all cases of fully open adoption.
Complete severing of all links to a member of
the birth family should only happen when he or she has been the
perpetrator of sexual abuse, or when the child so wishes. Contact
with the rest of the birth family should not be affected. Children
should not be denied contact with other members of their family
due to one member having committed abuse.
In the best interests of the child, contact
must be supported and maintained between siblings where their
separation has been unavoidable. Contact between adopted siblings
and siblings left in the birth family or born after the adoption
must also be fully supported—as should attempts by children
to find their siblings later in life.
Approval of prospective adopters should require
their commitment to maintain the level of contact between child
and birth family required by fully-open adoption. Adoptive parents
should be given support to ensure that they are able to carry
out the contact arrangements made. There should be a statutory
annual review of contact arrangements both to ensure that adoptive
parents and Social Services are fulfilling their obligation to
facilitate contact between birth families and adopted children,
and to establish the changing wishes to the child with regard
to the degree of contact they desire with their birth family.
To facilitate adopted children's access to their
origins and identity, we recommend that an independent National
Contact Agency for processing letters and presents be set up.
When a child clearly expresses the wish for the birth parents
to be given information, support should be provided for this and
the child should be updated at all times. At the very least, adopted
children and birth parents have the right to be informed if one
of them dies, even in the case of closed adoptions, and this should
be legislated for. Birth parents and adopted children have said
"The most vital piece of information is—are they alive?"
Birth parents should be informed if their child dies and adopted
children should be informed if a birth parent or sibling dies.
5. SUPPORT FOR
BIRTH PARENTS
THROUGHOUT CARE
PROCEEDINGS, THE
ADOPTION PROCESS,
AND BEYOND
"She has survived three attempts at suicide.
What do they expect when you have your children taken away?"
The following recommendation was made in the
Department of Health's own Review of Adoption Law[15]:
". . . agencies should have a statutory
duty to ensure parents of a child, whom it is proposed to place
for adoption, are offered full opportunities to receive advice
and counselling. This should be provided by a social worker who
is not involved in the adoption plan if the birth parent so wishes."
(para 28:6).
Section 3 of the Bill makes statutory the maintenance
of services (counselling, advice and information in connection
with adoption) for children, their birth parents, prospective
adopters and adoptive parents. However, the Bill (Section 4) only
places a duty on local authorities to carry out an assessment
of a person's need for adoption support services. There is no
duty to actually provide these services once it has been decided
that a person has needs for them. Section 4 (4) only places a
duty on local authorities to decide whether to provide any such
services to that person. It is recognised by all parties, including
the Department of Health, that adopted children, birth parents
and adoptive parents all need support. Support services should
be on offer to everyone involved who can take them up as they
see fit for their own individual circumstances.
The provision of—not the assessment for—adoption
support services should be a statutory duty on local authorities
and therefore included in the Bill. Details of the provision of
adoption support services should be included on the face of the
Bill, not left completely to regulations and guidance.
Adoption support is necessary and should be
statutory for children who may be or are adopted, birth parents
and extended birth family (including siblings), prospective adopters
with whom a child is placed and, adoptive parents. We are concerned
here with the support of birth families.
It is important that this support is adequately
funded to ensure access and delivery to all birth families nationally.
Post adoptive support for birth parents must not be given less
priority than services for adopted children and adoptive parents.
The Review of Adoption Law further advocated
a role for independent counselling and advice to be made available
(para 28:5). Advice and counselling for birth parents should be
from the time that adoption becomes the plan and should always
be provided free of charge to families on low income. This is
necessary to help them make a decision based on a full understanding
of the legal, and possible psychological and emotional implications
of adoption for themselves and their child and, to be in accordance
with Article 21 of the Convention on the Rights of the Child:
State Parties shall ensure that (. . .) if required, the persons
concerned have given their informed consent to the adoption on
the basis of such counselling as may be necessary. Counselling
is also necessary to prevent the distress, anger and hurt being
aimed at the social worker or judge in charge of the case and
this being held against the birth parents in the proceedings,
possibly causing unnecessary delays. Counselling for the birth
family (parents and siblings) should continue after the child
has been adopted to prevent trauma leading to, or exacerbating
any of: depression, suicide, addiction, unemployment, or homelessness.
These are serious problems that will have a detrimental effect
on the birth parents' ability to be a lifelong resource for their
child through contact and into adulthood.
Families experiencing persistent poverty are
not used to working with professionals. To redress the power imbalance
between families and professionals it should be recognised that
there is a need for additional time and extra support, specifically
adapted to the vulnerability of the families' situation. The support
worker should be independent, able to be objective, explain things
to the birth parents and help them to present their views. Because
the system is adversarial and intimidating there is a need for
someone to be alongside the birth parents to hep them to better
express themselves. An advocate should be available in specific
cases, such as where the parents have learning difficulties, literacy
problems and difficulty in expressing themselves.
It must be recognised that, even when their
skills are inadequate, most birth parents still deeply love their
children and that they can change and improve their parenting
skills. Correspondingly, agencies and support workers should continue
to work with birth families post-adoption to improve their situation
and parenting skills for the benefit of both their adopted children
during contact visits and future children born into the birth
family.
"Going to court you are made to feel
like you committed a crime."
"If you are prosecuted under criminal
law you are innocent until proven guilty. In care proceedings
you are guilty until proven innocent."
"We all feel sidelined when it comes
to giving evidence."
It is the experience of birth parents living
in persistent poverty that defence evidence in contested cases
is not given fair weight or sufficient resources relative to evidence
from Social Services. Yet the right to a fair hearing implies
a right to equality of arms. The quality of representation is
often a factor of the level of funding which is permitted by the
Community Legal Service Fund. Equality of arms demands that solicitors
in publicly funded cases should be allowed to spend more time
and money on case preparation. Proper resources must therefore
be made available to birth family's lawyers so that the issues
can be fairly determined. Resources applied to the determination
of vital issues should not be stacked on the side of the public
authorities. Under Article 6 of The European Convention on Human
Rights everyone charged with a criminal offence is entitled to
a fair hearing and shall be presumed innocent until proved guilty
according to the law. In adoption proceedings Social Services
effectively act as prosecution. Even if adoption proceedings are
not a criminal prosecution, the consequences for the birth parents
are extremely serious. Article 6 also provides for a fair hearing
for civil obligations and therefore birth parents deserve the
right to have better representation and present evidence whether
or not they are contesting the adoption.
At present many Local Authority Social Service
departments looking after children also act as adoption agencies
and this creates a perceived conflict of interest both financially
and ethically. Detailed consideration should be given to whether
Social Services should act as adoption agencies or whether alternative
local and national arrangements should be made.
6. CLASS AS
BIRTH HERITAGE
"When children go to a family that provides
more for them in terms of material things it makes it harder to
meet or go back to the birth parents. It also makes it difficult
to maintain contact and come to terms with their birth heritage."
Section 1(5) states that in placing the child
for adoption, the adoption agency must give due consideration
to the child's religious persuasion, racial origin and cultural
and linguistic background. We welcome this, but would like the
duty of responsibility to be extended also to the courts. We also
welcome attempts to extend opportunities for adopting children
to a wider spectrum of society to meet the diverse needs of children.
However socio-economic class should also be recognised as an important
part of birth heritage and identity. As much as possible children
should be matched with adoptive parents of similar socio-economic
class to their birth families. The systematic use of Family Group
Conferences (as advocated by Family Rights Group[16])
to look for permanent solutions within the extended family and
people of significance to the child would facilitate this.
7. SPECIAL GUARDIANSHIP
ORDERS
We greatly welcome the new legal option of special
guardianship. We would like to see included in the Bill a more
comprehensive description of special guardianship and how this
will be resourced. Given adequate contact arrangements, a special
guardianship order would provide an option to fully respect the
child's right to his or her origins and identity. We therefore
recommend the specific inclusion of contact arrangements that
are as open as possible in Section 94 of the Bill.
8. OMISSIONS
FROM THE
BILL
There is an overall lack of resources to fund
Adoption. The £66 million announced over three years under
Quality Protects is not anywhere near sufficient to fund the reformed
adoption measures and rectify the acute shortage of qualified
staff. We would like to see more on resourcing included on
the face of the Bill.
It is clear that this Bill has progressed rapidly.
Adoption exerts far-reaching effects on the lives of children
and their families. It is of vital importance that this once-in-a-generation
reform of adoption law guarantees the fulfilment of children's
needs and rights. This can only be achieved through the full participation
of all groups who have a stake in adoption (including the least
heard group—the birth parents). This requires sufficient
time and willingness to be fully inclusive in the law reform process.
The amount of important detail left to regulations and guidance
in this Bill is of concern. The timetable for consultation
on the regulations and guidance should be made public, and be
of a sufficient length of time to allow for real participation.
9. FURTHER INFORMATION
For a copy of ATD Fourth World's Consultation
Response to the National Adoption Standards and further information
please contact:
John Penet, National Coordinator, ATD Fourth
World, 48 Addington Square, London SE5 7LB.
May 2001
10 Passages in italics are the words of birth
parents and children with first hand experience of adoption. Back
11
BAAF Surveying Adoption, A comprehensive analysis of local authority
adoptions 1998-99. Back
12
In a fully supported environment, a child should be able to make
a decision from around this age. Back
13
Fully open adoption should entail access visits and days out (unsupervised
by social services but supported by other agencies where necessary);
unlimited correspondence (including presents) by direct mail or
through a National Contact Agency where appropriate; regular telephone
contact; and exchange of photographs. Contact should not just
be with birth parents but siblings, grandparents, extended family
and people of significance to the child, in accordance with the
child's changing wishes. In the case of a child being adopted
due to sexual abuse in the birth family, the perpetrator/s should
not be allowed contact but contact with the rest of the birth
family should not be affected. Back
14
Quoted in: Working with children and "Lost" parents:
Putting partnership into practice, by Judith Masson et al 1997
York Publishing. Back
15
Department of Health, Review of Adoption Law, HMSO, 1992. Back
16
Family Group Conferences: Family Decision Making; Family Rights
Group. Back
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