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Adoption UK has an established and reliable public presence, with more than 30 years' experience of supporting adoptive families before, during and after adoption. We are a national support organisation run by and for adoptive parents. The Committee will recognise that Adoption UK's evidence is singular in its representation of the adopters' unique perspective on adoption.
2. ADOPTION UK'S REACTION TO THE ADOPTION AND CHILDREN BILL
2.1 Adoption UK warmly welcomes the revised Bill. We recognise that the Government has listened to the views of many of the organisations and individuals touched by adoption. It has acknowledged and tackled many of the difficult aspects of the adoption process. We appreciate the desire the Government has for collaboration and consensus. We believe that the Bill is fundamentally sound, well intentioned and has the interest of the child at its heart.
2.2 However, we still have considerable concerns about two key aspects of the Bill which we believe need further amendment.
2.3 We recognise that the issues we are highlighting may become clearer in the Regulations and Guidance which will underpin this primary legislation. However, we believe that these issues are so fundamental to the success of adoption, as an option for permanence for children, that they must be addressed within the Bill itself.
3. TWO KEY ISSUES
3.1 ACCESS TO INFORMATION
3.1.1 Information—about the child's birth family, background and experiences prior to being placed for adoption—is absolutely essential to adoptive parents. Adopters need this information before a child is placed, in order to make the decision about the powerful lifelong commitment of adoption. They also need it after they have adopted in order to help their child with the healthy development of his identity.
3.1.2 The Bill as it is currently drafted only legislates for information to be made available to adopters after the Adoption Order has been made [Clause 57]. This is in complete contrast to the National Adoption Standards for England which state
[C2]: ``before a match is agreed, adopters will be given full written information to help them understand the needs and background of the child and an opportunity to discuss this and the implications for them and their family.''
3.1.3 The child's identity does not begin with the adoption order. Understanding and acceptance of the past is crucial to future mental health and development. Adoption must embrace the child's history even when ongoing contact is not possible, although, in many cases today, contact with birth families is appropriately maintained.
3.1.4 The new system for access to information outlined in the Bill [Clauses 53-62] allows birth parents to veto the disclosure of identifying information to birth children, even after those children reach the age of eighteen. This would prevent adoptees from obtaining their original birth certificate and deny them access to a fundamental cornerstone in the development of identity.
3.1.5 Whilst we can understand that some birth parents may not wish to be contacted by their children in adulthood and we would support their right to be protected against this, it is unreasonable to prevent those children from accessing this basic information.
3.1.6 The Government has asked whether it has achieved the right balance with regard to access to information about a person's adoption. We believe that the provisions in the Bill which restrict access to identifying information represent a retrograde step and one which must be amended.
3.1.7 This Bill rightly concerns itself with the child; the child's welfare is paramount ``throughout his life'' [Clause 1.2]. The possible denial of the right of access to birth certificates is not consistent with this principle. We would also question how this sits with Human Rights legislation.
3.1.8 We feel very strongly that the Government must seek an alternative form of words which would protect those few birth parents who need protection from contact by the adopted person, whilst ensuring access for that person to information which would enable them to obtain their original birth certificate.
3.2 ADOPTION SUPPORT
3.2.1 The Prime Minister's Review of Adoption and the subsequent White Paper acknowledged that children adopted from the care system will have experienced neglect, physical, sexual or emotional abuse, frequent changes of carer as well as other challenging life events:
``67% of looked after children have an identifiable mental health problem''.
3.2.2 Parenting these children is a rewarding but challenging task and one which must be adequately supported. Without good adoption support, adoptive placements are highly vulnerable to disruption. With good adoption support, adoptive placements offer vulnerable youngsters the positive experience of family life, the best chance of a secure future and the opportunity to heal.
3.2.3 We welcome some of the changes to Clause 4 and are delighted that adoption support includes all those affected by adoption. We have always embraced this principle.
3.2.4 We do not believe that adoption placements will necessarily be supported if backed by a legal duty to provide an ``assessment of needs for adoption support services'', when this duty is accompanied by the provider's right to decide whether or not to provide the services it has decided are needed. [Clause 4.4]
3.2.5 Our 30 years experience of supporting adoptive families has shown us that these families need access to the actual provision of support post-placement and post-adoption, not simply an assessment to determine the nature of that support. This aspect of the Bill will not encourage potential adoptive parents to come forward to be considered for the range of children who most need new families here and now.
3.2 6 We understand the argument that agencies must have the right to decide what level of support they can provide within resource constraints but we suspect that, where support remains optional, it will not be forthcoming.
3.2.7 If adopters, adoptees or birth relatives are asking for support, it is highly likely that they need support, not just an assessment! If the Government want adoptions to succeed, support must be provided; this is a far less costly option than maintaining children in the care system, whether one considers the financial or social cost.
3.2.8 The details of support outlined in Clause 4 are welcome but we remain concerned about the Bill's lack of clarity on where the responsibility lies for the provision and funding of any support which is needed after an adoption order is made, particularly when a child is adopted in a local authority area away from his placing agency. History tells us that primary legislation, even when backed by Regulations and Guidance, can allow widely differing interpretations and lead to instances of ``buck-passing'' by agencies.
3.2.9 Adoption UK families frequently report serious difficulties in getting Education, Health and Social Service departments to work collaboratively with them to help their children. We believe that there must be a statutory duty placed upon local authorities to provide adoption support services and that this duty should require the involvement of Education and Health services.
4. OTHER ISSUES
Adoption UK is represented on the Adoption Law Reform Group convened by BAAF. This Group has been working together since the early 1990's and has reached considerable consensus on a wide range of issues of concern to all parties to adoption. The Group will be submitting written evidence and this includes all the other issues in this Bill which Adoption UK considers require further amendment.
5. CONCLUSION
Adoption UK is acutely aware that the opportunity to bring adoption legislation in line with current good adoption practice and with the needs of all parties involved in adoption occurs very infrequently. Here we have this chance. We strongly urge this Government to address the two crucial issues we have outlined in this evidence.
Memorandum from NORCAP (National Organisation for Counselling Adoptees and Parents)
INTRODUCTION
NORCAP is a registered charity established in 1982 that aims to support, assist and advise adopted people and their relatives by both birth and adoption as they deal with issues arising from the impact of adoption upon their lives. The charity has assisted over 50,000 individuals most of who live in Great Britain but including a considerable number that now live overseas but who were involved in an English/Welsh adoption. A full time equivalent employed staff team of 4.5 and over 60 volunteers provides the services. It is funded primarily by membership subscriptions and currently receives no statutory financial support.
NORCAP presented written and oral evidence to the Special Select Committee established to examine the Adoption and Children Bill of March 2001. We have annotated a copy of that evidence to show which proposals of NORCAP are reflected in the current Bill and this is attached as appendix 1. We will focus this memorandum of evidence on a single issue the right to information and to have the opportunity of reunion. The proposals contained in the Bill concerning future access to information by people who will be affected by an adoption order made after enactment of this Bill cause us grave concern. The lack of proposals to address the needs of people living with the impact of adoption upon their lives as a consequence of adoption orders made between 1927 and the present day are equally disturbing. Having covered these matters we will conclude our evidence by listing in bullet point format the other points that we hope will be addressed or amended before the Bill becomes law.
Access to Information (clauses 53 to 62)
1. As the Department of Health Memorandum states these provisions are new, they ask if they strike the right balance. Without doubt these provisions are new, they have taken the whole adoption world, both consumers professionals by surprise and equally without doubt they do not have the right balance. More fundamental is the fact they are not the right provisions and are not designed to meet the lifelong needs of the people living with the impact of adoption.
2. We note that the introduction to the Department of Health memorandum of evidence `Key Changes' notes at point 3 that ``several of these changes have been made in response to evidence submitted to the Select Committee''. We have studied the evidence presented to the Select Committee and are unable to find any submissions that called for clauses on the lines of those now included as 53 to 62.
3. We did note however that of the 129 submissions made 104 were from birth relatives or organisations representing large numbers of birth relatives. They asked for changes to the information clauses. They did not ask for changes in the manner currently before you. In particular they asked for retrospective changes to address the needs of birth relatives of adopted adults. These pleas were made not only by birth relatives and organisation representing them but also by adopted people and adoptive families and their organisations as well. BAAF and other national organisations also addressed this point in their evidence. We are therefore utterly incredulous by the manner in which changes have been made and appalled by what is placed before you purporting to be an appropriate response for at least the next 30 years to the information needs of people affected by adoption.
4. Since the March 2001 Bill was published the High Court has granted an order under section 50.5 of the 1976 Adoption Act. This enabled NORCAP to reunite 69-year-old triplets who had been separately adopted following the death of their mother on the day after their birth. This was widely reported by the BBC and in the national press. The BBC News reporter wound up her report with the words ``if you want to know what happiness looks like just look at the faces of these three today''. The BBC main evening news is not given to excess sentimentality. The High Court Judge who made the order, His Honour Mr Justice Sumner, said in his judgement,
``There is an urgent need to review the legislation that impedes birth relatives' opportunities for search and reunion''.
5. We hoped that the weight of argument presented in evidence to the Select Committee, together with the call of a High Court Judge and the public acclaim that surrounded the triplet reunion would have convinced the Department of Health of the need to positively address the needs of adults affected by adoption. We anticipated appropriate clauses being proposed which would be subject to retrospective implementation. In our earlier evidence we offered a choice of acceptable models. We would ask you to look again at our proposals contained in appendix 1 and select one for implementation. Each proposal offered the essential protection for individuals who would not wish to be contacted whilst offering opportunities to all parties to establish whether or not contact or communication would be welcome. We have not been shown any reason why our proposals were ignored. The Department of Health has proposed nothing constructive for people already affected by adoption although this is the largest group ever likely to need such services. Indeed claims made in the memorandum and the explanatory notes about the Bill are inaccurate.
6. Note 141 of the Explanatory Notes states that ``Previous arrangements for access to information will continue to apply to those adopted prior to the implementation of the Bill''. This is incorrect. In the new Bill section 76 replaces section 50 of the existing Act. What is currently section 50.5 does not feature in the new section. This means that the existing opportunity, used in particular by birth relatives and also by close relatives of a deceased adopted person, is being withdrawn.
7. There will be no opportunity to apply to the High Court for an order to be made to require the Registrar General to disclose the link between a birth entry in his registers and the corresponding adoption entry. If this Bill had been in force in the spring it would have been impossible to reunite the aged triplets. Is this really the will of Parliament? Is this an appropriate response by the government to the comments of a High Court Judge? Is it really intended that the effect of the review should be that no one would have the opportunity to explain his or her case, however exceptional, before a judge again?
8. A further inaccuracy in the Department of Health's material is the penultimate sentence of paragraph 5 of their Annex A. This claims that until 1975 birth parents had a guarantee of complete confidentiality. This is wrong. Birth parents have never had a right of confidentiality, their identity and the birth identity of their child appeared on the form completed by adoptive parents when they make their application to court for an adoption order. The Houghton Committee considered whether there should be the opportunity for a birth parent to keep his/her identity confidential by the use of a serial number such had been afforded to adoptive parents since 1950. They concluded it would not be appropriate to do so. They later recommended the provision of access to birth records for adopted adults in the light of John Triselliotis's research `In Search of Origins'. There are two other myths that surround adoption. Both need to be dispelled.
9. First is that adopted adults were unable to find their birth parents until 1976. Only those adopted adults whose adoptive parents did not share information needed to use the statutory access to birth records provisions. However many, probably a majority of, adopted people learned their original birth details from their adopters or from sight of their adoption papers. How else would Phillip Whitehead MEP—then MP—have been able to so move the House of Commons with his personal account of seeking, locating and reuniting with his birth mother during the debate on this legislation?
10. The second myth is that adoption, until recent years, was always a very secretive, closed and confidential process. From 1926 until the post war amendment of adoption law the identity of all involved was disclosed in the court process. No one could hide behind serial numbers yet there are no reported incidents of intrusion or other difficulties. This is because the various parties had a name, were recognised as individuals and each gave the other and the adoption order the respect that was required. It is most unfortunate that the Department of Health has now given the status of fact to myths that in part sustained poor practice.
11. It is also inappropriate for the Department to justify its desire to withhold information from adopted people by reference to R v Registrar General, ex p. Smith (1991). This case caused great concern amongst professional and user groups alike. Representations were made to the Department of Health and the officers then in post told us all that the case was exceptional, the circumstances of Mr Smith and his unfortunate family had not occurred in the previous fifteen years and were not envisaged likely to occur again.
12. The officials reassured us the neither the Department nor the Registrar General had any desire to restrict the automatic right of adopted people to access birth records. The introduction of this case at this point to justify a major infringement of a basic right appears dishonourable. If it was so significant why was it not addressed in earlier proposals? There have been four previous opportunities, the White Paper of the previous administration, the 1996 Draft Bill, Adoption a Service for Children, the White Paper of December 2000 as well as the March 2001 Bill. None included statutory restriction of Access to Birth Records.
13. In paragraph 8 of Department of Health Annex A the claim is made that ``some birth relatives have experienced distress at having their identifying details passed on to the adopted person and they have complained that they were not asked for their consent.'' NORCAP considers it inappropriate for the Department to make this claim without quantifying the numbers involved. `Some' could equal just two individuals. These claims are not in line with our experience. It would also be useful to know the pattern of complaints. Have they diminished as the years have elapsed since access to birth records was introduced? Why does the Department not quote any research that supports their intentions? Perhaps it is because there is no credible to research to support such a stance. It is also noticeable that the Department fails to make use of the research data that is to hand which makes a very strong case for wider and retrospective access to information and services.
14. The primary difficulty appears to concern information that identifies one person, but is of relevance to another person. Should this be withheld unless the person who would be identified consents to release? When the time that has elapsed from when the information was collected to when it is requested may be ten, twenty or indeed fifty plus years it is impossible to contemplate the time and resources which would be necessary to deal positively with requests. In practice the consequence would be that requests would not be dealt with. Nevertheless it is unacceptable to hide behind an excuse that the lack of consent is justification for the withholding.
15. The only viable option is to make it known that information will be released to the other people involved in the adoption unless the person who would be identified requires that it is not released. The onus must be on the person who would want the information withheld to take action, otherwise the person wanting the information may be disadvantaged even though the person who would be identified may have no objection to its release but no specific motivation to come forward and offer consent. Indeed the person who would be identified may even be deceased and would not be hurt by any disclosure. Our appendix 1 includes operational details for introducing such a procedure.
16. The question that must then be resolved is whether certain pieces of information are potentially so important to one individual that no other individual should be able to deprive them of the information. In our view two pieces of information are worthy of this exemption. The first is that every individual should have the right to know the identity of his/her birth mother. Where the information is recorded this should extend also to the identity of the putative birth father. We do not consider the birth parent has the right to demand that this information is withheld. We do recognise that the prospect of the information being disclosed and the adopted person using the information to locate and contact the birth parent may be distressing to a tiny minority of individuals.
17. We would address the concerns of this group by proposing that instead of requiring the information to be withheld the birth parent could require that it was only disclosed after the adopted person had signed a formal undertaking not to make contact with the birth parent identified. This undertaking should be signed in the context of a supportive discussion with an appropriately qualified person. Such systems work very well in many parts of the English speaking world. In brief instead of vetoing the release of information an anxious birth parent vetoes the possibility of contact. Whilst we anticipate very few requests to use this facility we accept it may be of benefit to a few individuals whose minority rights should be respected. This is a far better option than any opt in system that just serves to disadvantage the majority equally.
18. The second piece of information which we consider should be exempt from any withholding provisions is the right of a birth parent to be advised if a son or daughter who was adopted has died. There should be statutory duties placed upon agencies to actively seek to pass on such information for a minimum period of at least 25 years. There should also be a duty on an adoptive parent to advise the adoption agency if an adopted child dies.
19. It should be a matter of routine for a District Registrar taking notification of a death to ask if the person who has died was an adopted person. The District Registrar should then notify the Registrar General of any positive response and the Registrar General should use information in his registers (clause 76) to record the information on the Adoption Contact Register. Birth relatives should be advised that if they choose to use the adoption contact register they might learn that the adopted person has died. We consider the right to know whether your child is alive or dead is too significant to be withheld.
20. The Department of Health Annex A paragraph 15 refers to the White Paper commitment to provide adopted people with consistency of access to information. NORCAP would welcome consistency set at the high standards currently being achieved in some agencies. We fear that consistency may be achieved at a level of minimal information based upon defensive practice. This is not in the best interests of adopted people. Clearly we are being asked to accept that the Department will back up the primary legislation with appropriate secondary legislation. Based upon our experience in the past year NORCAP cannot accept this as there is no indication that the Department of Health actually understands the nature of the concerns of adults affected by adoption let alone is committed to meeting those concerns.
21. We do not think there is any need to have a specific provision for an adoption agency to withhold essential information that would otherwise be disclosed because it has concerns about one or more of the individuals involved. It is quite sufficient for an adoption agency to be able to make an application to the High Court for an individual determination as in the case of Mr Smith. In this way any disadvantage suffered through information being exceptionally withheld is subject to appropriate judicial scrutiny. The use of the Independent Panel which reconsiders agency determinations may be the appropriate forum for consideration of an appeal against any withholding of information other than that deemed as `essential' information. (Department of Health paragraph 16 Annex A)
22. In addition to our views on the sharing of information and the new services needed to support this NORCAP wishes to draw the attention of the Standing Committee to the following points.
—Whilst the extended duty upon local authorities to assess the needs of a person or family affected by adoption for adoption support is welcomed this will be futile unless accompanied by a duty to provide the services identified by the assessment as being necessary.
—If an adopted person has died, (or is prevented by severe infirmity from making use of any provisions available to an adult adopted person), their adoptive parents or their adult sons/daughters should be empowered to use the provisions that would otherwise have been available to the adopted person. NB. This is not the same as allowing the adopted person to appoint someone to act on his/her behalf. An adopted person who has died in childhood or young adulthood will not have had the opportunity to make an appointment.
—In particular, the loss of an equivalent section to the present section 50.5 will adversely affect the descendants of adopted people as this was the route they used to obtain details of their ancestry.
—There must be provision to enable Foundlings (abandoned babies) to use the Adoption Contact Register.
—The possibility of reunion for Foundlings would be greatly enhanced by the repeal of Section 27 of 1861 Offences against the Person Act. Fear of prosecution inhibits birth mothers who abandoned their babies years ago from coming forward.
—Adopted adults in England and Wales need to enjoy the same right as Scots adopted adults who are able to see the whole court file of their adoption.
—There must not be a restriction on providing third party information to adopted adults. Professional judgement and skill must be recognised and trusted to place information in an appropriate context.
—The legal fiction contained in section 64 must be removed. Acknowledging that an adoptive relationship is not the same as a birth relationship does not diminish the value of the adoptive relationship.
—Equalise any charges for use of the adoption contact register so as not to disadvantage birth relatives.
—Make provision for a child to be adopted by the couple with whom she/he is placed regardless of whether the couple are married to each other or not.
—Make it more acceptable for birth parents to consent to the adoption of their child by using a form of words which recognises the reality of their situation.
—Change the criteria for making an adoption order when the child's parent(s) oppose this step. It is important that the threshold is greater than a 51 per cent./49 per cent. split for such a major step with lifelong implications.
23. To reiterate once again it is vital that this adoption bill contains sufficient and appropriate provisions that ensure the adults separated by adoption can gain information about their relatives and have the opportunity to initiate reunion unless a request not to be contacted has been made by the relative.
Appendix 1—The Memorandum submitted in May 2001
EVIDENCE FROM NORCAPFOR THESELECT COMMITTEE ON THEADOPTION AND CHILDREN BILL
1. Introduction
1.1 The National Organisation for the Counselling of Adoptees and Parents (NORCAP) was established in 1982. It offers practical support and services, advice and counselling to adults whose lives have been affected by adoption. In particular it works with adopted adults who are wishing to obtain information about their birth family or to have renewed contact with birth relatives. Over 6,000 reunions have been facilitated through the NORCAP intermediary service. NORCAP established the first register to link adopted adults with birth relatives. It has been operational for over 19 years and contains more than 50,000 entries. 750 links have been achieved. The operational detail of the NORCAP register is very different from the Adoption Contact Register of the Registrar General. Comments sent direct to NORCAP and findings in independent research * (1) report that the unique supportive framework within which potential links on the NORCAP register are facilitated is welcomed by many users.
1.2 NORCAP assists with the search necessary to obtain information or locate birth relatives; it offers an intermediary service to ensure the initial contact is made in an appropriate manner and that each person has adequate support at what can be an emotional time. NORCAP also provides various services including local groups where adopted adults can explore the impact of adoption upon their lives with other people who have also experienced adoption. Many adopted adults use NORCAP services when they need to renew contact with brothers and sisters who were adopted into other families. They use the support of NORCAP to help them communicate effectively with their adoptive parents and to help them understand that their need to renew contact with birth relatives does not reflect negatively on their adoptive family.
1.3 Our second largest group of members and service users are birth relatives, particularly birth mothers and siblings of adopted people. In the early days of its existence NORCAP offered only a passive service to birth relatives. This reflected our understanding of adoption law at that time. However by offering some service, even a passive one, to birth relatives NORCAP was working at the forefront of adoption provision and pushing out boundaries which had effectively excluded birth relatives for over 50 years.
1.4 From 1990 NORCAP has been campaigning for birth relatives in the UK to have access to active service provision similar to that enjoyed by birth relatives in Canada, Australia and New Zealand. NORCAP was the first to identify the opportunity for adoption agencies to use their powers under section 1 1976 Adoption Act and regulation 15(2) within present legislation to provide an outreach service for birth relatives and have advocated its use. Many agencies followed our model and substantial numbers of birth parents benefited as a direct result of NORCAP's campaign. NORCAP has worked in partnership with adoption agencies in over 400 cases enabling an intermediary service to be offered to birth relatives through our pioneering use of non-disclosure agreements. After ten years the Department of Health issued practice guidance on this.*(2)
1.5 NORCAP has been able to establish through work with our members past and present and their relatives by both birth and adoption that skilled services which re-open adoptions which have been closed for decades provide lasting benefit for everyone involved. Adopted adults, birth parents and other relatives and adoptive parents all benefit from enhanced understanding and the removal of the burden of guilt which appears to walk hand in hand with secrecy within families.
1.6 NORCAP has been concerned for many years about inequality of service provision. When services are not prescribed as duties upon agencies the variation of service provision is unacceptable and results in injustice and great distress. As a result of the history of adoption and the varied routes and individuals through which the adoption service developed, one of the major barriers to equality of service is the specific history of any adoption situation. To remedy this the Adoption and Children Bill as well as providing a positive framework for adoption in the future must also address the inequality and injustice of the past. Some 3 to 4 million adults in the UK live with the impact of adoption. They have seen how people in similar circumstances around the world have benefited as one legislature after another has introduced provisions to benefit adults affected by adoption in years gone by. They expect that this bill will address their needs by providing similar opportunities and services here.
1.7 NORCAP is a registered charity. It employs 4.5 full time equivalent staff and replies upon over 60 volunteers nation-wide to provide services to the current membership of 4,000 adopted people, birth relatives and adoptive parents. Other interested people and professionals form our associate membership.
1.8 Our evidence to the Select Committee on the Adoption and Children Bill is in three sections:
—Provisions for adults that appear missing from the Bill
—Provisions concerning adults that need amendment
—Provisions for adoption services in general on which NORCAP wishes to express an opinion, based upon our collective experience
2 ADOPTION IS FOR LIFE
2.1 This is the virtue of adoption. It is the reason why this Adoption and Children Bill is such a positive step forward for many children who may have no family for life if they move between many foster homes and residential care settings throughout their childhood. However the very virtue of adoption is also the potential cause of some of the consequential problems. Adopted children grow up and become adults. At that stage of their lives they do not necessarily need protection, they need rights and with rights go responsibilities. Birth families also live with the fact that adoption is for life. For those devoid of even the basic information of whether or not a former family member is alive or dead, the fact that adoption is for life can feel like a life sentence. NORCAP wishes to celebrate the benefits and joys of adoption but also to recognise the distress and sadness that may ensue. Our evidence will focus on how good adoption legislation can enhance the lifelong benefits of adoption for everyone who is affected by it.
Provisions for services for adults that appear to be missing from the Bill
The right for birth relatives of adopted adults to access information
2.2 Whilst adoption today is about securing family life for children who would otherwise grow up in the care of local authorities this is a fairly recent use of adoption. For the first 50 years from 1926 to 1976 adoption was used, almost exclusively, to avoid the stigma of illegitimacy and extra-marital births. Unmarried mothers had little choice but to relinquish their babies to adoption. Half a million women went through this experience; they had not harmed their child in any way yet they lost them to adoption. Told to forget and get on with their lives, research has shown most found that impossible. They have grieved an unending, unfocussed grief not knowing even if their son, their daughter was alive or dead. They have seen other people who lost children to adoption in recent years, in perhaps more questionable circumstances, benefit from letterbox or direct ongoing contact. In August 2000 the Department of Health issued `Intermediary services for birth relatives—Practice Guidance'. Drawing upon the research of the Children's Society and the collective experience of a considerable number of agencies this guide detailed the opportunities available to agencies to offer an outreach service to birth relatives of adopted people within present legislation. It offered a ray of hope to birth mothers in particular but also to brothers and sisters whose sibling had been adopted and fathers, many of whom only learned of their paternity many years after the adoption. However agencies were not required to follow this guidance. Even the Minister's foreword highlighted that it was optional. The inequality of service provision across the country and between agencies was reinforced.
The service was in any case only a possibility for those relatives who could identify the adoption agency. Many could not and in other cases adoptions were arranged by private individuals when such placements were lawful so there is no adoption agency birth relatives can approach to ask for an intermediary service.
2.3 It was expected that the new adoption bill would give statutory weight to the practice guidelines and a means of ensuring service provision was available to those affected by non agency placements would be devised. We were saddened to see that no mention of the practice guidance was even alluded to within the bill and no section requires the provision of intermediary services at the request of birth relatives. In the chapter relating to the records of the Registrar General, and the conditions for access to these, steps have been taken to ensure that the windows of opportunity presently available to some birth relatives to initiate renewed contact have been firmly closed.
2.4 Birth relatives all need the opportunity to access an active service now. It is the obvious next step in developing our adoption service from the access to birth records given to adopted adults by the 1976 act. Many Commonwealth countries followed Britain's example in providing access to birth records. They have now incorporated some form of active service for birth relatives as well as adopted people into their legislations, either simultaneously or within a few years of the initial provision. Britain is alone in offering a one sided service. This Bill will be the last chance for a generation to put this right. For the mothers who parted with babies born during the Second World War, for elderly brothers and sisters who remember a baby being born and then being gone this is the last chance.
2.5 Giving statutory duty status to the practice guidance would be one option. It would necessitate additional resources particularly in agencies with many `historic' or inherited records. There would also need to be provision for adoption agency access to the information contained in the register kept by the Registrar General to link birth entries to adoption entries in order to ensure equality of opportunity for individuals who cannot identify the adoption agency involved. NORCAP'S preference would be for new legislation that provides service for birth relatives similar to the provision in Canada, New Zealand and Australia. This would be a more empowering and sustainable option.
2.6 NORCAP can offer guidance on various options that could be put in place as safeguards. These may include:
—Protection of vulnerable children effected by requiring service is only provided when the adopted person is an adult.
—Providing the service only if the adopted person is aged 21 or over, (the age required to adopt an unrelated child)
—Providing for access to information 30 years the granting of adoption order (the period of closure of cabinet papers).
—Making provision for a veto to be lodged to prevent the disclosure of identifying information.
—Applying the provision only to those cases where the adoption order was made before 12 November 1975. (The date at which the law was retrospectively changed to provide access to birth records. There would then be an equal and reciprocal need for the adults involved in an adoption situation to make accommodation to take account of the needs of the other adults involved.)
2.7 However, fear that a tiny minority of people would not wish to communicate with birth relatives is not a sound reason to fail to provide the opportunity to the vast majority who would welcome it. The modified provision of the Adoption Contact Register (clause 65-67) does not effectively address these needs. The service is passive. In the 21st century people expect an active service. The proposed Bill does not meet the needs of adults affected by adoption. Our preference is for a new section that would read:—
2.8(1) Subject to what follows, the Registrar General shall, on an application made in the prescribed manner, by a birth relative of an adopted person and in those cases where the Registrar General holds a record of the Adoption Order of the individual to whom the applicant is related by blood or marriage as defined in regulation, supply to the applicant on payment of the prescribed fee (if any) such information is as necessary to enable the applicant to obtain a certified copy of the record of the adoption of his relative.
2.8(2) Before supplying any information to an applicant under subsection (1) the Registrar General shall inform the applicant that counselling services are available to him at the places listed in subsection 3 below.
2.8(3) Where an applicant who is in England or Wales applies for information under subsection (1) it shall be the duty of the persons and bodies mentioned below to provide counselling for him if asked by him to do so
2.8(4) The persons and bodies are:—
—The Registrar General
—Any local authority
—Any adoption society in so far as it is acting as an adoption society within England and/or Wales.
—Any body licensed by the Secretary of State to provide Adoption Advice and Support Services to Adults (see below)
2.8(5) When the applicant indicates from which body in subsection (3) he chooses to receive counselling the Registrar General shall send to that body the information to which the applicant is entitled under subsection (1).
2.8(6) Where an applicant applies for information under subsection (1) the Registrar General shall supply the information to him only if the person to whom it relates:—
is an adult
or has attained the age of at least twenty one years
or it is thirty years or more since the date on which the adoption order was made
or the adoption order of the person about whom the applicant has applied for information was made before 12 November 1975.
2.8(7) The Registrar General shall not supply any information under subsection (1) if the adopted person to whom the information relates has requested in the prescribed manner that the information is not made available to any relative.
2.8(8) Where an applicant applies for information under subsection (1) the Registrar General shall not supply the information to him unless he has attended an interview with a counsellor arranged by a person or body from whom counselling services are available as prescribed in subsection (2).
2.8(9) Where the Registrar General is prevented by subsection (6) from supplying information to a person who is not living in the United Kingdom, he may supply the information to any body which—
2.8(10) The Registrar General is satisfied is suitable to provide counselling to that person, and has notified the Registrar General that it is prepared to provide such counselling. In this section prescribed means prescribed by regulations made by the Registrar General.
2.9 If the opportunity for birth relatives to initiate contact with adopted adults is to be limited to giving statutory duty status to the Intermediary Services for Birth Relatives—Practice Guidelines *(2) then provision for this will need to be made both in section 3(8)a and in chapter 111 by inserting a new section between the existing section 48 and section 49. It may read as
2.10 The birth relative of an adopted adult person has the right to access an intermediary service from the adoption agency involved in the placement of their relative for adoption or from the local authority adoption agency in which the birth relative currently resides. The intermediary service will provide that the adopted person will be made aware, in a manner specified in regulations, that his birth relative would wish to communicate with him.
2.11 A subsequent section will need to provide:—
An adoption agency which has a duty to provide an intermediary service for a birth relative, but was not the adoption agency which placed that adopted person for adoption, shall be entitled to require the Registrar General to provide information to the agency that will enable the adoption agency to identify the entry of the adopted person in the Adopted Children Register.
2.12 There will need to be a consequential change to Section 62 to authorise the Registrar General to provide this information to the adoption agency.
2.13 Anything less than the clauses detailed above will fail to meet the needs of an increasingly aged group of birth relatives.
2.14 In our submission to the Prime Minister's Review of adoption we emphasised the importance of making provision for the adoptive parents or long term carers or surviving spouse of an adopted person who has died or is disabled to be allowed to act on behalf of the adopted person. It is possible that section 48(2) was envisaged to address the need we had highlighted. This is not achieved. In the circumstances we have in mind the adopted person is not able to appoint someone to act on his/her behalf. This may be because the adopted person died in childhood or because he/she is disabled. In either case the right must be available automatically to other appropriate people who can act on his/her behalf to access information if necessary and to register on the adoption contact register. A clause to this effect may be added to section 48.
2.15 There needs to be provision to enable the descendants of an adopted person who has died to inherit the right of access to information and services that the adopted person would have enjoyed had he/she not died. This provision is available to descendants of adopted people in Canada and Australia. The need for such specific provision is illustrated by the number of individuals who have resorted to making application to the High Court under the present section 50(5) Adoption Act 1976. Their applications have succeeded but a specific provision would avoid the need to have to resort to such costly and potentially intimidating procedures.
2.16 Another significant group of people who have again been overlooked by this Bill is Foundlings—often spoken of as abandoned babies—and their relatives. They have no access to any information about their birth circumstances as a result of the route by which they came to need adoption.
2.17 However despite their unfortunate early circumstances provision must be made so that it is straightforward for information to be exchanged at a later date. The provisions of the adoption contact register must be amended (see our paragraph 3.9) and the law which specified that the abandonment of children under two years of age is a criminal offence, offences against the person act (1861) section 27 must also be changed. This will ensure it does not deter any relative coming forward and offering information that may be so important to the adopted person even if it is many years later. Regulations should prescribe a protocol that must be followed throughout the UK whenever an infant is found, apparently abandoned, and who may need adoption if he/she cannot be returned to the birth family. The number of such incidences is increasing The protocol should recognise not only the immediate needs of the infant but the potential life long needs and also the priority which must be given to seeking to locate the parent(s).
NORCAP REGRETS THAT NONE OF THE PROVISIONS ABOVE FEATURE IN THE ADOPTION AND CHILDREN BILL OF 19 OCTOBER 2001.2.18 Many people wish to access information and intermediary services from agencies independent of the social services or placement agency. We are unable to recognise the proposal contained in the White Paper at 6.46 that suitable organisations could be licensed to undertake this work. The Minister (Mr Hutton) speaking in the second reading debate 26 March said `Local authorities may provide services by arranging for them to be provided by voluntary adoption agencies or other parties prescribed in regulations. This will enable them to draw on the Voluntary Sector that has huge groundswell of expertise and resources'. NORCAP is just such an organisation with probably the largest body of experience in providing services to adults affected by adoption.
2.19 We would propose that voluntary organisations such as NORCAP should be able to apply to the Department of Health or Local authority for approval and licensing as an Adoption Support and Advisory Service for Adults. Approval should be subject to compliance with criteria laid down in regulations. The process should be suitably rigorous but not as extensive or complex as the approval of an adoption society that will carry responsibility for approval of adopters as well as placement and post adoption support of vulnerable children.
2.20 The licensing of Adoption Support and Advisory Services for Adults could encompass not only birth records counselling but handling provision of access to information from adoption files on behalf of adoption agencies and for offering intermediary and support services. Licensed services could be authorised to operate as if an adoption agency in terms of access to information within those areas of work which relate only to the adoption of a person who is now an adult.
2.21 If the role of licensed services is not recognised in primary legislation the opportunity for the statutory sector and service users to effectively use their expertise will be very limited as many clauses limit the sharing of information and service provision to adoption agencies only. If licensed services are introduced it may well free up time in statutory and voluntary adoption agencies to meet the placement needs of today's children as the post adoption work with adults may be done elsewhere.
NORCAP is pleased this provision is included in the revised bill3 Provisions which need amendment concerning adults Ì3.1 Section 48(c) provides that an adopted adult has the right to obtain a copy of any document or order prescribed by rules, from the court in question. In Scotland, Adopted people already benefit from the right to read the entire `court process'. We trust that this section will be clarified to provide equality of opportunity for adopted adults in England and Wales and will not result in more restricted provision.
This clause still needs expansion
3.2 Section 49(1) will result in adopted people having access to less information in the future than many gain now. Adopted people need access to information that contains identifying details about their birth parents, their siblings, their grandparents and previous foster carers. If they had not been adopted this information would never have been taken away from them. Adoption agencies have shared background information using their discretion as part of the work connected with birth records counselling. The opportunity to use professional judgement must not be removed. Whilst it may simplistically appear the `safe' option to withhold any information which identifies a third party it is vital to appreciate that given information people make informed judgements. If information is withheld people still make judgements but they are more reckless as they are not well informed. Adoption agencies must take responsibility for consequences occurring as a result of information they withhold just as they should for consequences occurring as a result of information they share.
3.3 Given they must take professional responsibility they must be allowed the discretion to exercise professional judgement and not be constrained by the proposed wording of section 49(1). NORCAP also believes the failure to supply comprehensive information to an adopted person about his/her background may constitute a breach of the adopted person's rights under Article 8 clause 1 and 3 of the European Convention of Human Rights.
The judgement in the case of Gaskin v UK12 EHRR 36 may be significant in this connection. Remove the restriction on providing an adopted person with third party information.
The provisions of clauses 53—62 further restrict access to vital information.
3.4 We are unhappy that the Bill proposes a legal fiction in section 51(1) and (2). This must be revised. A person adopted by a single male adopter cannot be said to born to that adopter in wedlock. Adopted people may need the security of knowing that adoption is permanent and will not be revoked but they do not need unrealistic fairytales. Similarly it is most inappropriate to pretend they are not the child of any other person, they remain the biological child of `other' persons. Those parents may not have parental responsibility and may not have any role in the adopted child's life but they remain the biological parents. This section is in conflict with section 58, as that section specifies that the biological relationships of the adopted person are applied in connection with schedule 1 of the Marriage Act 1949 and sections 10 and 11 of the Sexual Offences Act 1956 (incest) No amendment made
3.5 Section 53 should be amended so an adopted person may inherit peerages and lands associated with any peerage. It is unjust to exclude them. It appears this clause has been amended.
3.6 Section 62(4) We are unhappy with the wording of this section. A section of legislation identical to this section but without the words `In exceptional circumstances' has been included in every adoption act from 1926 onwards.
3.7 Since 1994 three reported cases have come before the High Court. In Re H (1994) the need for the application to be exceptional was considered by Mr Justice Thorp (as he then was). He concluded there was only a need for an applicant under this section to make a case of sufficient weight and merit to convince the court of reasonableness of making an order. In Re D 1996, in the Court of Appeal, the substance of this judgement was overturned by the Lord President Sir Stephen Brown. He determined that the application should demonstrate exceptional circumstances and potential benefit to the adopted person. However in a very recent judgement Mr Justice Sumner made an order under this section having considered the unusual circumstances of the case and taking account of the implications of the European Convention on Human Rights. NORCAP played a very significant role in both Re H cases and provided an affidavit in Re D.
3.8 NORCAP is convinced the clause requiring the Registrar General to disclose the link between a birth entry and an entry in the adopted children's register only when ordered to do so by the High Court is a sufficiently high threshold. The court would not make an order frivolously. The court would ensure that the application was reasonable of sufficient weight and merit to justify the making of an order. Amendment—Delete `In exceptional circumstances.'
N.B. The response to this request has been to remove the clause, and the right of application to the High Court altogether.
3.9 NORCAP has serious reservations concerning the operational detail of the adoption contact register. These have been detailed to the Registrar General and Officers at the Department of Health over the past ten years and regularly reiterated. We do not consider that it is appropriate for the operational detail to be specified in primary legislation. We understand the Registrar General would support an amendment that prescribed the duty to provide an adoption contact register but put the operational detail into regulation. We propose that sections 65,66 and 67 be replaced by a revised section 65 `The Registrar General must cause to be maintained a register to be called the Adoption Contact Register. The operation of the Adoption Contact Register and the fees to be applied, if any, shall be prescribed by regulations.
Appears acted upon.
3.10 However it is essential that when drawing up the regulations, which are likely to be based upon the present content of sections 65, 66 and 67, adequate provision is made to provide flexibility. The Registrar General will then be able to process registrations from Foundlings (abandoned babies—see para.2.16 above). The regulations must also allow registrations by persons authorised to act on behalf of an adopted person (see para.2.14 above). Special provision must be made to enable people adopted overseas to use the register and for the birth relatives of all these groups to be able to register with ease. Regulations should also provide for the Registrar General to follow up communications to ensure they have been received by the individual for whom they are intended.
3.11 NORCAP hopes that the fees charged for use of the contact register will be equalised. Whilst the organisation does not dispute that the differential charge may reflect the different costs of registration, no link can be achieved unless a birth relative registers on part two and an adopted person on part one. Therefore the total cost of registration of both parties should be equally divided as the registration cost for either party.
The proposals in the two clauses above have not been acted upon.
4 Other provisions on which NORCAP wishes to comment
4.1 NORCAP welcomes the requirement in section 1 (4)d and 1 (5) which recognises the importance of the child's background. For generations adopted people report that tension within the adoptive situation is greatest when they feel they do not fit in. We hear from people who describe themselves as `square pegs in round holes' or the `odd one out'. The feeling of isolation may be perceived as a result of cultural, racial, physical, intellectual or emotional differences. It is very important that all factors are taken into account.
4.2 NORCAP is concerned that when a child is placed for adoption with a couple who are not married to one another only one of them will be able to adopt the child. NORCAP is very aware that it is vital for an adopted child to be 100 per cent. confident that there is equal and complete commitment in the new family to him/her being in that family. If only one adult can adopt, the adopted child may be insecure as a result.
4.3 This provision may reflect concern that providing for adoption orders to be made to couples who are to parent a child together but are not married to each other would be interpreted as promoting adoption by gay couples. This is not the key issue and needs re-examination from a child centred perspective. This is not an issue about any adult having the right to adopt. It is all about the adopted child's right to have the same, equal, and lifelong relationship to both adults who act as parents to him/her rather than the quality relationship conferred by adoption to one of the adults and a lesser, temporary one to the other 'parent'. This is like asking a child to tell you who he/she loves most—Mum or Dad? It should not happen.
4.4 There is no legislation requiring that children may be placed only with married couples or single people who live alone. For many years adoption agencies have taken up applications from unmarried people living both as heterosexual and gay couples. Both partners are subject to the same preparation and assessment, much of which focuses on their interaction and their skill in working together. An appraisal is made of their ability to support one another in the face of difficulties—a most essential characteristic for people contemplating the challenge of adoptive parenting. In making a recommendation for approval as prospective adopters panels normally note which applicant will be the one to apply to adopt and which will seek an alternative order giving parental responsibility in recognition of his/her role in relation to the adopted child. When a link is made this is because after careful assessment the couple together is shown to be the best placement for a particular child. It does not reflect their right to be parents. It reflects the view that the child's needs can best be met by them as a couple.
4.5 When any couple is selected as the people who together can meet a child's needs then the child needs to be adopted by both of them. In this way the child's rights are met; the right of the child to be adopted by both partners not just one. Section 43 needs amendment to achieve this.
This proposal, made by many organisations, needs to be acted upon
4.6 Although during the 1960's the UK was a signatory to a convention which requires only married couples or single people adopt this should not determine legislation in the twenty first century. It is not a tenable argument today for depriving children of the right to a lifelong permanent relationship to both would-be adoptive parents even if they are not married to each other. In the 1960's most adoptions were of babies relinquished by unmarried mothers solely because they were unmarried mothers. Unmarried parenthood fell outside society's norms. All that has changed. Most adoptions today are of children who have been looked after in public care who need the most skilled and resourceful adoptive parents regardless of the sexual orientation or marital status of those parents. The child's security will be enhanced by the knowledge that both partners are his/her adopters for life. If implementing such beneficial change in domestic law requires the UK to re-negotiate the international convention then it should be done in the interest of applying an ethical policy which recognises that the child's needs throughout his/her life must be the paramount consideration in any matters relating to adoption.
4.7 NORCAP wishes to see changes to the provisions contained in section 44 concerning consent. We are saddened that the requirements for giving consent to adoption remain so unacceptable to most birth parents who whilst recognising the need for their child to be adopted only accept that plan with regret and sorrow. Acceptance of the plan together with recognition of the effect, should be the basis of consent and reflected in the wording of forms parents need to sign for an adoption to be heard by the court uncontested. Clause 44 does not meet this requirement even though the White Paper indicated the means of giving consent would be made acceptable to birth parents, thereby reducing delay for their children. NORCAP proposes that a birth parent may give consent to adoption by declaring `I acknowledge that adoption will be in the best interests of my child. I accept the adoption plan and will not oppose the making of an adoption order. I understand the implications of an adoption order being made.'
This suggestion has not been included in the Bill
4.8 NORCAP does not consider it right to dispense with a birth parents consent to adoption simply because `the welfare of the child requires the consent to be dispensed with'. We do not consider such a fundamental interference in family life can possibly be compatible with the European Convention of Human Rights. NORCAP proposes that the test for dispensation of consent should be that proposed in the Report to Ministers—Interdepartmental Review of Adoption 1993. The consent of the parent may be dispensed with if the advantage to the child of being adopted is so significantly better than any other option as to justify dispensing with the parent's consent.
The test for dispensation of consent remains too low for an order as far reaching and enduring as adoption.
4.9 NORCAP welcomes the introduction of a Special Guardianship order and hopes that if will be considered as a positive means of achieving for a child the benefits traditionally associated with adoption whilst avoiding the losses associated with adoption. We have learned that in New Zealand Guardianship is the means of providing permanency for children aged over 2 years.
4.10 NORCAP has taken note of two provisions in section 94(special guardianship) that we would like to see applied also to situations involving adoption. They are:—
4.11 14B Before making a special guardianship order or an adoption order the court must consider whether, if the order were made, a contact order should also be made with respect to the child.
And 14C(4) If the child with respect to whom a special guardianship order dies, his/her special guardian must take reasonable steps to give notice of that fact to each parent of the child with parental responsibility. This would translate as:—
If a child who was adopted dies his adoptive parent(s) must take reasonable steps to give notice of that fact to the individuals who had parental responsibility for the child before the adoption order was made.
4.12 It would probably be appropriate to impose a duty upon the adoption agency to assist the adoptive parents in fulfilling this responsibility.
The two proposals above have not been acted upon.
4.13 NORCAP trusts that the Select Committee will recognise that the common thread through all our proposals and concerns is a recognition that adoption binds individuals and families together for life. We all remain emotionally connected for life. We need a legal framework that recognises and regulates that reality with compassion and sensitivity.
Memorandum from the Fostering Network (formerly known as the National Foster Care Association)
The Fostering Network aims to ensure the highest standards of care for all children and young people who are fostered, through the provision of training, advice, support, information and consultancy services. Founded in 1974, the organisation works to define high standards and best practice for foster care and assist local authorities, agencies and individuals to work effectively in the interests of fostered children.
99 per cent of local authorities in the UK are members of the Fostering Network. It also has over 18,000 individual members and 150 local foster care group members. We also have 75 Independent Fostering Agencies and 25 Voluntary Organisations in membership to us.
The Fostering Network welcomes the new Adoption and Children Bill and is delighted that the current Bill reflects many of our comments given in evidence to the Select Committee on the Adoption and Children Bill earlier this year.
However, there remain some areas that require clarification or further amendment. Below we have listed our main areas of concern.
General Comments on the Bill
The Fostering Network is anxious to ensure that fostering continues to be considered as a positive option for children. There will remain children for whom adoption is not the right solution, and who will need the continuing support services provided by local authorities, throughout their childhood.
Long term fostering is a positive option for children who have strong allegiances with their own families, but whose families are unable to provide them with appropriate care throughout their childhood. For some of these children special guardianship will be a viable option. However, for some children there will still need to be a third party involved as a negotiator when difficulties arise. Whilst families may not want their child adopted, and may therefore prefer long term fostering, the fact that they are unable to look after the children themselves will inevitably lead to frustrations, which at times will be focussed on the children's carers. At such times, having a local authority social worker to help mediate can ease tension.
Equally, some children will need services that can best be provided through the intervention of a local authority. Many adopters have suffered in the past because they have not been able to access appropriate services for their children. A child who remains in a long term fostering situation, should ideally, be best placed to have their needs met for services.
Specific Issues
Adoption Support Services Clause 4
We welcome the fact that local authorities will have a duty to carry out certain assessments of the need for adoption support services for particular people. However, we are concerned that within Clause 4 local authorities, having assessed a child's needs, can then decide whether or not to provide the services that they have identified are needed. They clearly will be under no obligation to provide the services. Any prospective adopter would rightly be concerned that they could be agreeing to adopt a child with very complex needs, and no assurance that the identified support will be forthcoming.
The legislation is not clear about which local authority is to undertake the assessment, and, which authority is to provide the agreed services. Is it to be the responsible local authority that has placed the child, or the authority in whose area the adopter lives that undertakes the assessment and then provides the service? Given that with the introduction of a national adoption register children are likely to move far away from their original local authority, the issue of who assesses, and who provides will need to be very clear. It will also be very important to ensure that the funding for the service follows the child, wherever he/she is placed.
It is our view, that as with foster care, a written agreement should be drawn up at the time of placement of a child for adoption, specifying the support required, and what will be provided. No child should be placed for adoption without an assessment of their needs, and for many children, access to therapeutic services will be required. There will however be children whose real needs in relation to their developing personalities will only become clear some years after adoption. For instance, children who have been subjected to a number of moves during infancy, (sometimes within their own families), often portray as very submissive children during their early years. However, the degree of disturbance that these moves might have caused can affect their behaviour as they get older, and it is then that they will need an assessment and services to help them understand what has happened to them. At that time it would clearly be the area where they live that should take responsibility for undertaking an assessment and providing services, but without some priority being given for adopted children, their needs could remain unmet.
Applications for Adoption (Clause 41)
Family life in Britain has changed dramatically since the last adoption legislation was produced and current legislation will probably be in place for at least another 25 years. We are disappointed that the Bill does not consider the possibility of unmarried couples, and same sex couples adopting a child. More people will live in a relationship which is not confirmed by marriage and yet has all the components of it in terms of commitment to one another, and the capacity to provide a home for children in need.
The foster care service has provided a model. Unmarried couples and gay and lesbian carers have given children excellent care often for many years, until adulthood. These children have benefited from the love and care provided, and the security of the relationship. Many of the placements made have been of children with special needs who may not otherwise have benefited from family care had there been a need to wait for the perfect married couple to come forward.
Useful background information to support the case can be found in `Lesbian and Gay Fostering and Adoption—Extraordinary Yet Ordinary' edited by Stephen Hicks and Janet McDermott.
Information (Clauses 53-62 and 76)
Under the Bill's provisions, if the birth parents had lodged an objection to the disclosure or their identity, the adopted adult would not be able to obtain his or her birth certificate.
The rights of the child and the adult should be finely balanced. In some circumstances it may be important for the identity of the birth parents to remain undisclosed. At other times, it may be the case that it is important for the identity to be known. Therefore, it is our view that the adoption agency should have discretion in deciding whether to disclose this information after taking the welfare of the birth parent and adopted adult into account.
Memorandum from the Family Rights Group
EXECUTIVE SUMMARY
In addition to our earlier submission to the previous Select Committee, we wish to make the following recommendations to this Committee about the provisions in this bill:
1. That the government's target to increase adoption by 40 per cent. be withdrawn, otherwise it may seriously undermine support for families with children in need under the Children Act 1989 and may skew decision-making about permanency plans for children who are looked after by the local authority;
2. That there should be a two-stage procedure for the consideration of, and dispensing with, parental consent to the placement of children for adoption, and the making of an adoption order. Without it, this legislation is likely to be in breach of Articles 6 & 8 of the European Convention and is therefore open to challenge under the Human Rights Act 1998;
3. That the test for dispensing with parental consent should revert to that which was proposed in the Report to Ministers, namely that adoption would be so significantly better for the child than any other option as to justify overriding the parents' wishes. The court also needs to be satisfied that a thorough investigation of the alternatives to adoption has taken place;
4. That clause 1 should be amended to place a specific duty on the court to consider, when applying the welfare checklist, whether a contact order should be made at the same time as an adoption order;
5. That a statement should be included in clause 1 that kinship placements ought to be the placement of first choice for children who cannot live with their birth parents;
6. That clause 51 should be amended to read `adopted children are to be treated in law in the same way as a legitimate child of the adopters from the date of the adoption order';
7. That adequate provision is made for financial and other support for those children who are the subject of special guardianship orders;
8. That birth parents, siblings and relatives should be equally entitled to an assessment for adoption services as children who have been adopted and their adoptive parents; and
9. That an obligation is placed on adopters to notify the placing agency in the event that the child dies before their eighteenth birthday or the placement disrupts.
ABOUT FRG:
Family Rights Group [FRG] supports families involved with social services by:
—advising families who are involved with social services [we run a national telephone advice service]
—working with families, practitioners, researchers and policy makers to promote policies and practice that support families and meets the needs of children.
—undertaking research projects to promote better practice.
We are in contact with birth parents and relatives who have lost children to adoption and parents and families who are still going through this process. We also work with birth relatives who have taken on the long term care of a child who cannot live with their birth parents, with adoptive parents who experience difficulty in receiving services for their adopted children, and with foster carers.
FRG SUBMISSIONS ON THE REFORM OF ADOPTION LAW:
Throughout the last decade, we have been actively involved in the consultation process of the reform of adoption law. We have worked co-operatively with other adoption agencies such as BAAF, NORCAP, Adoption UK and adoption agencies in the Adoption Law Reform Group, debating the issues which the consultation process has raised. We are pleased to say that, despite the range of perspectives of this group, there has been a broad consensus on many issues, including some which directly affect birth family members. For the sake of brevity, we have not described these areas of agreement in this submission, but instead, we support the written evidence which this Group will be submitting to the Committee.
FRG has also been actively involved in the Family Group Conference Network, and we support the evidence and recommendations submitted to the previous Committee by the Network.
OUR SUBMISSION ON THE ADOPTION AND CHILDREN BILL
We refer to our previous evidence submitted to the Select Committee which considered the first Adoption and Children Bill. Most of the submissions we made still apply (save in relation the need for a threshold to be met before a placement order can be made on an accommodated child) and therefore we have not reiterated them here. Instead we have summarized below the key points we wish to raise in relation to this bill which are unlikely to be raised by other agencies:
1. ``Pro-adoption'' culture: Parents with children in need, who are entitled to support services for themselves and their children under Part III of the Children Act, often express to us their reluctance to ask for help because they fear that social services will seek to have their children adopted. If the current focus on adoption, which is underpinned by a government target of increasing adoption by 40%, leads to families being reluctant to seek help, this will not be in the interests of children. We would urge the government publicly to withdraw this target, and to promote good permanency practice though other means, such as regulations and guidance. Otherwise this target may become unduly influential in decision-making for children in care or in need of support, with the result that the welfare of children is undermined in individual cases.
2. Parental Consent to adoption: Clause 45 provides that parents will not be able to oppose an application for an adoption order, where they have given advance consent or a placement order has been made, unless the court gives leave. Such leave is dependent on there being a change of circumstances. We are very concerned that these provisions will mean that in the vast majority of cases, parents will not have their consent to adoption, as opposed to placement, considered. They are therefore unlikely to receive funding from the Legal Services Commission to be heard within the adoption proceedings, and indeed there is no obvious mechanism by which they will even be informed of the forthcoming adoption hearing. This may have a number of consequences:
—birth parents may not know that they can apply for the court's leave to have their consent considered where there has been a change in circumstances;
—birth parents are unlikely to be in court to argue about issues of continuing links between the child and the birth family network, and whether some other order should be made instead of an adoption order as provided for by clause 1; and
—any birth relatives wishing to care for or to seek ongoing links with the child may well not know about the adoption hearing, thereby rendering hollow the provisions in clause 1(4)(f).
Although the Secretary of State has expressed the view that this Bill is compatible with Convention Rights, we believe it may be open to challenge under the Human Rights Act 1998 as follows:
Article 6 states that:
In the determination of his civil rights and obligations . . . everyone is entitled to a fair . . . hearing within a reasonable time before an independent and impartial tribunal established by law.
We submit that this Article clearly applies at the adoption as well as the placement order stage, because an adoption order determines the parents' civil rights to exercise their parental responsibility and to continue to have a legal relationship with their child. If they have no right to be heard at the adoption hearing (unless they can prove sufficient change of circumstances to merit the court effectively granting them the right to be heard), they will be denied a fair hearing.
Article 8 states that:
Everyone has a right to respect for his private and family life.. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of...the protection of health or morals or for the protection of the rights and freedoms of others.
Again, we submit that the severance of the parent-child legal relationship constitutes an interference with this right, both for the parent and the child. In order for it to be deemed ``necessary in a democratic society'' by the court, we suggest that, the parent should be present and have a right to be heard on the issue of whether another kind of order, for example under the Children Act, may more adequately promote the child's welfare. If the parents are absent, the court's decision will be based entirely on evidence adduced by the adopters.
Whilst we are aware that it may be unwelcome to introduce a two-stage consideration of parental consent by the court, we cannot see any way to avoid this without recreating another form of freeing for adoption proceedings, which were found to be unsatisfactory in the Report to Ministers. The key arguments for abolishing freeing proceedings were that they caused delay in placement and potentially placed the child in a legal limbo in which they are not in care, and only have a former parent (rather than a parent) until an adoption order is made. We support the provisions in the current bill to avoid this limbo, namely that the parents continue to be parents, and the child continues to be looked after until the adoption order is made. However, for an adoption order subsequently to terminate this situation without the parents being heard as of right seems to us to be a flagrant breach of Convention rights.
We therefore suggest that the parent should have the right to give or withhold consent to placement at the placement order hearing, and consent to adoption at the adoption hearing. In both cases, the court should have the power to dispense with consent according to statutory grounds (discussed below). In order to allay fears about delay and additional cost, we believe that if there has not been a change in circumstances since the placement hearing, the arguments will be relatively circumspect, but they nevertheless need to be heard in order to comply with Articles 6 and 8.
3. Dispensing with parental consent: Whilst we welcome the fact that clause 1 of this bill introduces the welfare principle into adoption legislation in line with the Children Act, we are very concerned that it has also been introduced as the ground for dispensing with consent in clause 50. It was recognised in the Report to Ministers that the irrevocable and draconian nature of an adoption order was such that the grounds for making this order should be distinguished from the grounds for other orders which can be made under the Children Act. It therefore proposed the ``so significantly better'' test to dispense with parental consent, namely that:
adoption would be so significantly better for the child than any other option as to justify overriding the parent's wishes.
This proposal received widespread support from a range of agencies within the consultation process, but was never included in any of the bills which have been drafted. We would urge the Committee to replace the wording in clause 50 (1)(b) with this wording. It would be applied by the court specifically in relation to dispensing with parental consent, and in addition to the welfare principle in clause 1 which requires the court to consider the welfare checklist, including whether all the alternatives to adoption have been adequately explored and eliminated. Without such an amendment to this bill, there will, in effect, be no substantive test for dispensing with parental consent.
4. Contact and adoption: We are concerned that the Bill fails to recognise the substantial changes that have taken place in adoption knowledge and practice. Research is increasingly confirming:
—that for children and birth parents, their relationship does not end when an adoption order is made, and
—that birth relatives can also provide continuity and support for adopted children.
We would want to address the Committee on how the bill may be improved regarding the issue of openness, contact and maintaining connections. For example, we suggest that clause 1 should be amended to place a specific duty on the court to consider, when applying the welfare checklist, whether a contact order should be made at the same time as a placement or an adoption order. This will place contact and openness on the agenda as one of the child's needs, whilst leaving full discretion to the court about what arrangements, if any, for contact and/or openness about the child's origins should be made. It will help to ensure that adoption is geared towards meeting the child's, as opposed to the adults', needs.
5. Kinship placements: We welcome the provisions in clause 1 which require an investigation of alternative placements within the family network before a placement or adoption order can be made. However, given the potential disruption to the child of being placed permanently outside their family, we recommend that these provisions are reinforced by an explicit statement in clause 1 that kinship placements ought to be the placement of first choice for children who cannot live with their birth parents.
6. The status conferred by adoption: We propose a change in the wording of clause 64 to more accurately reflect the status conferred by adoption. Clause 64 currently states that the adopted person be treated in law `as if the person had been born as a child of the marriage' which promotes the legal fiction that the child was born to the adopters. This wording is misleading to the child and does not accurately reflect their history. We suggest the Committee should amend this clause to read:
That the adopted person is treated in law as the legitimate child of the adopters from the date of the adoption order.
7. Special Guardianship: We welcome the proposals for Special Guardianship and would like to address the Committee on the results of surveys and interviews we have done with grandparents and other relatives who are caring for children. We enclose a copy of Second Time Around—A survey of Grandparents Raising Their Grandchildren. This report highlights the needs of grandparents and draws particular attention to their need for financial support and other support services.
8. Adoption Support for birth relatives: We recommend that birth parents, siblings and relatives should be equally entitled to an assessment for adoption services as children who have been adopted and their adoptive parents. This may be crucial to the success of arrangements for openness/contact where such arrangements have been decided to be in the child's best interests.
9. Notification of child's death: We propose that an obligation is placed on adopters to notify the placing agency in the event that the child dies before their eighteenth birthday or the placement disrupts, so that this information can be passed on to the birth parents and relatives.
Examination of Witnesses
Pauline Dancyger, Deputy Director, The Adoption Forum; Philly Morrall, Director, Adoption UK; Pam Hodgkins, National Organisation for Counselling Adoptees and Parents; Sue Gourvish, Head of Services, Fostering Network; and Robert Tapsfield, Chief Executive, Family Rights Group, called in and examined.
3.52 pm
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