Select Committee on Select Committee on the Adoption and Children Bill Appendices to the Minutes of Evidence


Memorandum Submitted by Kirklees Metropolitan Council


  (i)  Kirklees Metropolitan Council welcomes the Adoption and Children Bill, particularly its stated purpose of enabling children to achieve adoption more effectively, and it consolidation with the principles of the Children Act 1989. Kirklees welcomes the welfare checklist and section 1(2).

  (ii)  8 per cent of Kirklees Metropolitan Council looked after children leave care for adoption (twice the national average). Kirklees achieved five stars (maximum rating) in the Government's Performance Indicators for Adoption in October 2000, therefore the Council is highly committed to adoption as an option for children. Its concerns are that unless certain sections are re-drafted, the bill will inadvertently slow down the adoption process for Looked After Children.

  (iii)  Kirklees Metropolitan Council is concerned that sections of the Bill appear to be in conflict with the Draft National Standards in Adoption, against which Local Authorities will be inspected in future.

  (iv)  Kirklees Metropolitan Council is keen to develop post adoption support services; welcomes their inclusion in the Bill but fears that the permissory drafting of "may provide services" allied with resourcing implications will impair the adoption process and possibly deter prospective adopters.


  Section 1(4): Kirklees welcomes the inclusion of the Welfare checklist.

  Section 1(5): Kirklees welcomes the mandatory consideration of a child's religious persuasion, racial origin and cultural and linguistic background.

  Section 18(7) and Section 44(2): Kirklees Metropolitan Council is concerned that the different "threshold criteria" for making a Placement Order compared to a Care Order may have unintended consequences.

  Care orders require "actual or likely significant harm". In contested situations this appears to create a lower threshold for a Placement Order, ie "paramount consideration of the child's welfare throughout his life [Section 1(2)] plus the welfare checklist [Section 1(4)], allied with "the welfare of the child" as a grounds to dispense with the parent's consent.

  Where children are accommodated, parents disagree with adoption but the Local Authority wants adoption, the bill allows the Local Authority to pursue a Placement Order instead of a Care Order, without proving actual or likely significant harm. Is this intended?


  Kirklees Metropolitan Council currently achieves adoption speedily for children because it uses Freeing Orders. National research, DoH Statistics and the Prime Minister's Review of Adoption 2000 all show that using Freeing is correlated with speedier family finding, shorter length of adoption placement, and cheaper, more straight-forward, quick adoption proceedings. Kirklees Metropolitan Council would stress to the Select Committee the following successful factors currently attached to Freeing which must not be lost.

      (i)  the birth parent's PR is extinguished;

      (ii)  the birth parent takes no further part in the legal process of adoption as far as adopters are concerned;

      (iii)  the adoption application is dealt with speedily by a Magistrates or County Court. There is no need to appoint (or re-appoint) a CAFCASS Officer/Guardian ad litem. Adopters do not need the expense of legal representation. The hearing is straightforward because the issue of consent has been dealt with by the Freeing Order and there is no remaining PR held by anyone other than the adoption agency.

  Kirklees's understanding of Section 22 "parental responsibility" is that a Placement Order does not extinguish Parental Responsibility. Section 22(4) refers to restricting it. Kirklees would ask that the Bill is drafted in a way to avoid the following:

    (i)  birth parents retaining parental responsibility which then needs to be extinguished by their participation in adoption proceedings which consequently require full legal representation by all parties and a CAFCASS officer'

    (ii)  birth parents retaining parental responsibility in a way which complicates the adoption placement by virtue of three parties holding parental responsibility (Sec 22(2) and (3)). In situations where birth parents continue to actively oppose adoption despite court decisions, their continued exercise of parental responsibility alongside adopters could be problematic. Recent consultation with Kirklees approved adopters resulted in them pointing out the benefits of Freeing: straightforward proceedings without anxiety of a contest, or the guardian ad litem re-awakening the trauma of care proceedings for children.


  Kirklees's concerns in this area arise from the interplay of Section 16 (consent) Secs 27-31 (removal) and Section 34 (qualifying period of residence with adopters).

  Kirklees is concerned about situations where a mother has asked for her child to be placed for adoption and may change her mind once the child is placed.

  Under the current Adoption Act, Sec 27 protects the child (and the adopters) by restricting removal once the adoption application has been lodged. Sec 13 of the current Act allows an adoption application from the date of placement onwards, so long as the Adoption Order is not made until the child has lived with the adopters for 13 weeks and is at least 19 weeks old. In such circumstances Kirklees currently advised adopters to lodge their application soon after placement, which reduces their anxiety about the possibility of the parent changing their mind and the baby being removed. The Bill would prevent this course of action because Sec 34 is drafted differently from its old equivalent. Sec 34 refers to a 10 week qualifying period before the adoption application, not the adoption order, is made. Interestingly, the heading to the side of Sec 34 refers to "child to live with adopters before Order is made". Kirklees would ask that this is clarified.


  Kirklees requests that the current "lacuna" with Freeing Orders is avoided; where a pre-existing Care Order cannot be "resuscitated" on revocation of the Freeing Order apart from in the High Court. Sec 26(1) states that a Care Order "does not have effect at any time when the Placement Order is in force". Kirklees requests that Sec 20 is drafted to enable any pre-existing Care Order to be revived on the revocation of a Placement Order, if deemed appropriate by the Court.


  Sec 41: Kirklees regrets that the Bill prohibits cohabiting couples from jointly applying to adopt, and notes this is incompatible with eligibility for Special Guardianship applicants (Sec 94 allows joint applications).


  Kirklees Metropolitan Council understands that Special Guardianship aims to provide legal permanence for children for whom the total legal severance of adoption is inappropriate. The last such provision was Custodianship (as enacted in the 1975 Children Act). Kirklees Metropolitan Council experience was that Custodianship failed, and was rarely used.

  Kirklees Metropolitan Council requests that the Select Committee compares very carefully the terms of Custodianship with those of Special Guardianship, to ensure that the new provision is an effective instrument for foster carers and residence-order holders.

  Kirklees notes that a Special Guardianship order extinguishes a Care Order. Unless there is some legislative provision for financial support attached to Special Guardianship, foster carers will lose their status as foster carers and therefore their fostering allowance. Residence order holders who have enabled a child to leave care and have thus become entitled to a Residence Order Allowance (not universally available) will lose it. As currently drafted, the Bill creates a financial disincentive to Special Guardianship, which Kirklees Metropolitan Council regrets.


  The White Paper and Draft National Adoption Standard suggested that this review "tribunal's" function was in respect of prospective adopters turned down by an Adoption Panel. Kirklees Metropolitan Council considers that the wording of Section 9 is ambiguous and could include not only prospective adopters, but also children and birth parents, about whom the Adoption Agency has made a "determination". Is this intentional, when birth parents already have recourse to the Courts? How will this section affect existing appeal mechanisms within Adoption Agencies?


  Certain draft standards are in conflict with the Bill, for example standard F8(b) requires an Adoption Agency to make arrangements to hold Panels within 48 hours of a child's birth to enable babies to be placed for adoption direct from hospital, within three days of birth. The Bill is clear that a child cannot be placed for adoption at mother's request without consent (Section 16), and the consent cannot be given until the baby is six weeks old (Section 39(4)(b) and Section 44(1)). Kirklees's view is that the Bill provides a more considered timescale than the Draft Standard.


  The use of "must" and "may" throughout the section suggests that financial support in terms of adoption allowances are optional. Kirklees Metropolitan Council's experience is that the current Adoption Agencies and Adoption Allowance Regulations nevertheless leave situations where children's adoption placements cannot be supported effectively. In terms of adoption allowances there is an urgent need for regulations to specify what means-testing if any should apply, because this is the cause of enormous disparities across the country. The National Adoption Register (Sections 96-99) will result in more long distance adoptions across Local Authority boundaries and will exacerbate this problem. Kirklees Metropolitan Council is disappointed that Section 4(10) lays no duties on Health Authority or Primary Care Trusts or to provide adoption support services. Most Local Authority Adoption Agencies have experienced tremendous problems accessing services and/or funding for services, especially where the child and adopters reside in a different Local Authority or Health Trust area. Kirklees Metropolitan Council could give specific examples of such difficulties, which deter families from adopting and particularly deter families from taking on older or very damaged children who require specialist therapy and special education provision.

May 2001

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