Adoption and Children Bill

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The Chairman: Do any other witnesses have thoughts on what was said? Obviously, you have not had the chance to give the matter prior thought. Are there any immediate responses to Mr. Tapsfield's suggestions?

Philly Morrall: In principle, it sounds like a good start. I found the whole concept—not the concept of a placement order or the process of placement—very complex. We have been struggling with how it will help in terms of the delay issue, which we have all been trying to get over. Is this the beginning of a discussion to avoid that?

The one thing that I did think about placement orders from the point of view of adoptive parents, which are the ones whom I am representing, was that there is a point in the process, which I cannot quite remember because I do not have the chart in front of me, where the adopters have more parental rights up to the point of the adoption order. That is a help because, at the moment, they are very much in limbo between the time of placement and the time of adoption, and that is a difficult time. I realise that we need to get that balance right.

Mr. Julian Brazier (Canterbury): We do not have quite the right heading for this matter, although it is probably the nearest that there is.

The testimony of the Adoption Forum cites a particularly harrowing case of adoptive parents seeking to adopt the older 13-year-old half sister of a boy whom they successfully adopted. That example threw up two matters about the placing of children. If I may, I shall pursue this with Pauline Dancyger, although others may wish to comment.

First, I address the matter of race. The Committee debated whether the Bill is confusing by prioritising between delay and finding a suitable ethnic placement. Can we deal with that first, and then come on to the other point that arises from that? Do you think that the Bill strikes the right balance by having ethnic and other considerations up in the first clause, and on a par with delay? Is the balance right or wrong?

Pauline Dancyger: It is probably too high—that is my immediate response. In terms of practice within my own authority, we have always tried to balance those needs together. This was a particularly harrowing case but, I have to say, it is not a terribly unusual example. I could quote a number of other very similar cases. I think that we gave this as a particular example because it quite clearly illustrates where common sense did not play a part, but where, perhaps, political and other attitudes rather took the forefront.

Mr. Brazier: I am just thinking about the next stage of the Bill, and a number of hon. Members of all parties made a suggestion on Second Reading. Clause 1(5) states:

    ``In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.''

However, we need to add words such as ``except in so far as that conflicts with subsection 3'', which relates to the matter of delay. Would you welcome that wording?

Pauline Dancyger: Yes.

Mr. Brazier: Does anyone else want to comment on that?

Pam Hodgkins: We move away from giving an appropriate weighting to a child's background and the whole plethora of things that make up a child's background at the cost of the child. You live with your identity for the whole of your life. Expediency about placement for adoption needs to be very carefully balanced with obtaining the right placement, because if it is not the right placement, it will not last into adulthood.

Mr. Brazier: Most do not get a placement at all at the moment.

Pam Hodgkins: I would dispute that. A lot of balancing has been done, and a lot more finding appropriate mitigating steps, shall we say, in making placements has been occurring in social work practice, particularly over the past two or three years, which has probably not yet fed through into the statistics. The moment that we diminish a child's heritage by putting riders on it, there is a risk of it being overlooked, and we would be back to the situation in which love is all you need—and we know jolly well that love alone is not enough.

Pauline Dancyger: I do not think that it is a matter of diminishing anything. What I am saying is that they are equal considerations. There has to be a limit, if there is to be a limit at all, on the question of delay of placement of a child.

Mr. Brazier: Right. Thank you.

The second aspect, which seems to come from the same story—indeed, the main reason that you raised it—is determinations. In our previous sitting, Mr. Paton suggested that, although clause 12 does not specify which determinations will be able to go to appeal and which will not, and getting a place on the adoption register is likely to be a determination that can be appealed against, it is unlikely that it will ever be possible to appeal against individual matchings. Would you like to comment on that?

Pauline Dancyger: One of the matters that we highlighted in our submission is that there are currently very few means by which adopters can appeal, throughout the adoption system. That is one of the very real concerns that the Adoption Forum wants to highlight.

Ms Munn: I should like to return to the issue that Mr. Tapsfield raised, because I was not clear exactly what he was saying. You generally welcome the idea of placement orders in that it moves us away from freeing orders, but you believe that it is incompatible with the Children Act in relation to children accommodated under section 20.

Robert Tapsfield: The provisions for discharge for children placed for adoption are not compatible. There are different time limits. That is one way in which the provision is not compatible with the Children Act. It is confusing in terms of the legal status of children.

Ms Munn: So you are saying that a child who has been accommodated because the parents want the child to be adopted could not remove the child, whereas the parent of a child who is accommodated with a placement order could do so.

Robert Tapsfield: Yes.

Ms Munn: And you see no value in that protection in planning for the child.

Robert Tapsfield: We are concerned that the current provisions make arrangements for a child who is placed with the parent's consent such that if they then change their mind, even if the child is not placed for adoption, they are not allowed to have the child return to them. That is inconsistent with the Children Act.

Ms Munn: But if someone says, ``I want my child to be adopted'' and the child is accommodated on the basis that that is the plan, do you not see a value in a change in the amount of time in which a parent could subsequently change their mind and remove the child?

Robert Tapsfield: I accept that. Our view would be that in all cases in which there will be a placement for adoption, whether with consent or without, there should be a placement order that is an order of the court. That could be an order obtained with consent, not necessarily an order about which there was a dispute. But it would, importantly, address one of the issues of concern. At the moment, the practice of local authorities in seeking placements with relatives is varied. Once you get to the final adoption hearing it is frequently too late to do anything about that. Local authorities do now sometimes have to take decisions about whether to seek to contact relatives or not. If they decide not to do so it is then very difficult for the relatives to do anything about the placement order even with the consent of the birth parent.

At the hearing, the provisions currently in the Bill would ensure that the court considered whether there will be other arrangements for the child such as a family placement. For example, it would allow for a hearing at that stage for a local authority to say that it was not sure whether it should be contacting the father or not—a father without parental responsibility—and it would allow for that issue to be addressed in court. We do think that there should be a placement order even when there is consent, and that clearly in respect of a child who is placed following a placement order there would need to be restrictions on removal.

5.15 pm

Ms Munn: So that is the issue of consent to which you wanted to return?

Robert Tapsfield: The different issue about dispensing with consent.

Ms Munn: Before we come to that, are you saying that there are other areas in which the Bill is incompatible with the Children Act?

Robert Tapsfield: It is mainly the contact issues. We are not convinced that it is sensible to have different arrangements for contact that are outside the Children Act and we would prefer to see contact within the Children Act.

Ms Munn: What do you mean by that in terms of how legislation works in practice?

Robert Tapsfield: We do not see that there needs to be a separate provision under placement orders for contact. We think that contact issues can be dealt with as an order under the Children Act.

Ms Munn: So you would deal with that as a contact order under section 8 rather than as an issue under the placement order?

Robert Tapsfield: Yes.

Mr. Brazier: I may have completely missed the point here. In the case of a child who was temporarily placed with, say, a foster parent who may be about to adopt, the Children Act does not have the degree of protection in terms of secrecy that might be desirable for a potential adoption. Surely the difference between these provisions and the Children Act arrangements is the element of secrecy.

Robert Tapsfield: Under the Children Act, a child who is voluntarily placed in accommodation can be discharged by their parent. That was an important provision that was introduced in the Children Act. It is not a provision that has been misused and local authorities work satisfactorily with it every day.

The Chairman: Mr. Paton is back with us again. It might be helpful if he gave his views on what has been said. Before that, will you explain about dispensing with consent, Mr. Tapsfield, so that we understand exactly where you are coming from? Mr. Paton can then respond to all the points.

Robert Tapsfield: There are two issues about consent. We are extremely concerned at the threshold for dispensing with parents' consent, because the threshold is set but the test is the welfare of the child. Effectively, that means that there is no test for dispensing with the parents' consent. The grounds for making an adoption order are that the welfare of the child essentially requires it, so the grounds for dispensing with consent are the same. In effect, that means that whether the parent consents or not makes no difference to the decision about an adoption—it will not affect it one way or the other.

In our view, the decision about whether to make an adoption order is such a serious and irrevocable decision—it is hard to imagine a more serious decision for the state to make about a child—that on balance making an adoption order has to be significantly better than making any other order. It is not just about comparing one order among a number of orders. Making an adoption is permanent and irrevocable and has lifelong implications for all concerned. We would like to support the recommendation that was originally in the report to Ministers that adoption should be so significantly better that it justifies overruling a parent's consent.

The second issue about consent is that we are concerned that currently, where a parent contests adoption and their consent is dispensed with at the placement order hearing, effectively they will not be heard at the adoption order. We are concerned that the placement hearing is to consider whether, in principle, this child should be placed for adoption and whether the parents' consent should be dispensed with. At the adoption hearing, the court is not considering an ``in principle'' decision, but whether this placement should be made for this child at this time.

We would argue that that is a decision about which a parent has a right to be heard. Under these arrangements, they are unlikely to be heard and they will not get legal aid so are unlikely to be present or to be heard at the hearing. That is important because of the issues that the court will have to consider at the adoption order, under schedule 1—about their family, background and relationships—and it will not have access to what the parent says about that. It will have access only to what the adopters or agency say, and not to what the parents say.

It is important to recognise that the making of an adoption order, in itself, is separate from the decision about a placement. Our view is that this may fall foul of the Human Rights Act 1998 as it refers to articles 6 and 8 of the European convention on human rights. There may be a further issue if parents are not allowed to be heard on the making of an order in that situation and at that time.

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