APPENDIX 28
Memorandum Submitted by Kirklees Metropolitan
Council
1. SUMMARY
(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.
2. ALIGNMENT
OF ADOPTION
AND CHILDREN
BILL WITH
CHILDREN ACT
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?
3. EFFECTS OF
PLACEMENT ORDERS
ON ADOPTION
PROCEEDINGS
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.
4. SECURITY OF
CHILDREN PLACED
FOR ADOPTION
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.
5. REVOCATION
OF PLACEMENT
ORDERS
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.
6. WHO CAN
ADOPT?
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).
7. SPECIAL GUARDIANSHIP
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.
8. INDEPENDENT
REVIEW BODY
(SECTION 9)
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?
9. DRAFT NATIONAL
ADOPTION STANDARDS
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.
10. POST ADOPTION
SUPPORT SERVICES
(SECTION 4)
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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