 House of Commons |
Session 2001- 02 Publications on the internet Standing Committee Debates Special Standing Committee Debates |
| ADOPTION AND CHILDREN BILL
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Memorandum from Mrs. Carol Garratt Dear Committee members, I am a birthmother who lost my son to adoption in 1977, may I add not through choice but because of a cruel society and stigma attached to being a single mother. Your new adoption bill can not say it is representing the ``best interests of the child'' and I feel if it were to go through in it's current form it would be challenged as discriminating against peoples Basic Human Rights. Do you know that at least 95% of birth mothers suffer depression according to medical studies carried out? Some studies show that as long as 40 years after a birth mother has parted with her child she regards the loss of her child to adoption as the most stressful thing in her life, the loss of a child can affect all areas of life i.e. marriage, future children and great difficulty in trusting anybody. In my opinion contact with birth relatives is in the best interest of the child because only they can give an up to date medical history, if a child who was adopted needed a bone marrow transplant or a kidney transplant then surely the birth relatives are the best chance of success in this type of treatment, medical information is always changing from day to day within a family and such things as breast cancer, cervical cancer other genetic diseases, heart disease, these sort of medical problems don't always show up for years, and by the time an adopted person feels that it is the right time to seek information about themselves (which in some cases is after the adoptive parents have passed away, as they feel a loyalty to them or fear of upsetting them) it may be to late for any preventative treatment. By denying this medical information to an adopted person you are denying them the right to the best treatment that they are entitled to, this is a violation of basic Human Rights. How would you feel not knowing if Cancer or Heart Disease ran in your family, how would you like it if when you went along to the hospital you couldn't answer half of the questions you were asked because you honestly didn't know the answers because you had been denied the right to your family history because you were adopted? In Britain we do not allow discrimination in the work place, or in our schools, but when adoptees become adults (18 years old) they are allowed birth parents names but birth parents are not allowed the names of adopted adults, this is discrimination, I believe that adoption records should be ``open to all'' you should in this day and age be making it easier for adoptees and birth parents to obtain contact with each other not more difficult, do you honestly believe that we as birth mothers are going to harm these people? As for the adoption contact register it has been running since 199 1 and has reunited less than 1000 people, if it is to work it needs to be publicised more and in more places than just social services departments, why not your G.P's waiting room, the local library, the dentist waiting room, have a TV and radio advertising campaign well really advertise the register anywhere that people who may wish to use it will actually learn of its existence? In a democracy, everyone should have the right to ask questions, and everyone has the right to an answer, so I believe that birth parents should have the same rights as adult adoptees. Closed records to birth parents stops the Freedom Of Association for adult adoptees and birth parents, this must be breaking a law. This must be changed. To do this, records should be open to adult adoptees and birth parents, if someone whether it be adoptee or birth parent not wanting contact this could be so noted on the file by making it known that ``No Contact is Welcome'', this system works well in other countries such as Australia and parts of Canada where the records are ``Open to All'' I read somewhere that only 0.05% of birth parents and adoptees opted for ``NO CONTACT''. This means that almost 99% want contact. We have no right to stand in the way of people wanting contact. We all understand the need for an adopted child under the age of 18 to be protected from interference of any kind, but once that child is an adult this need for privacy should be addressed, maybe it should be that once an adopted child is reaching the age of 18 all birth parents who have not opted for a NO CONTACT VETO should be asked if they are open to contact by a letter being sent from the adoption agency, and the same when the adopted child is 18 he/she should receive a similar letter and this should be reviewed every five years as we know people often change their minds. I am sure a system such as this would be far more acceptable than the ones that are in place now. I have heard several people say after looking at the new Bill, that they feel the last twenty years of lobbying and discussion with the Department of Health has been a waste of time, just thrown away, I also noted that the right to take the Registrar General to Court for access to an adoptees new identity, in `exceptional circumstances' Section 50(5) of the1976 Act, appears to have been removed this is something which I feel very strongly about and feel should be included in your new bill. The changes that have been made in your new bill with regards to the adopted children's indexes will only go to encourage searchers to obtain information via the black market which I am sure will be rife if these indexes are removed from Family records centre in London. I know many thousands of adoption certificates are in circulation and will be used in well lets say less than a professional manner. In my opinion so many things need to change, we are after all in the 21st century we have freedom of speech, freedom of information why now go in a backwards motion? this Bill is only going to be seen as a step backwards not only for the adopted persons but birth families and adoptive families alike. I always believed that Great Britain was part of the democratic world, but I now believe you are living in a time warp and it really is time to change your outdated attitudes towards adoption, why allow the stigma that is attached to adoption to continue, change things and change them now, don't false us to wait another twenty years. Thank you for taking the time to read my views. Evidence from Clarice Irene Robertson, NORCAP trustee, born 1922, mother of Anna, born 1947, died 1958 ``found'' 1999 PROVISION OF INTERMEDIARY SERVICES TO BIRTH RELATIVES OF ADULT ADOPTED PEOPLE In its bulk, the Bill relates to children for whom adoption is the preferred option , so the welfare of the child has precedence over all other considerations. However, there comes a time in every adoption when no children are involved, because all the parties involved are mature adults. The Bill in its present state, fails to address this aspect of the adoption continuum. This submission is on the basis that all approaches to people sought would be done by a qualified intermediary. Every person sought should have the space to make a considered response. The Select Committee of this Bill's precursor received 98 letters from individuals, most of them birth relatives. The printed evidence made available to the public and (one presumes) Committee members, recorded the receipt of the letters. A few were chosen to be printed and included in the published evidence but, here I quote from a letter to me from Pam Morris, Secretary to the Committee, 9th May 2000. ``It is the Committee's usual practice to publish all the submissions which it receives . In this instance, however, it has decided, because so many of the letters contain deeply personal information, publication would not be appropriate . . .'' Who is being shielded here? Not the letter writers. They are all people who have at cost to themselves yes, but from choice, ``come out'' from the shadows of early 20th century shame. If they thought it would help, they would shout their continuing pain from the housetops. A new and valuable piece of research,* shows that a sizeable minority of adopted people do not search for birth relatives because they have no inner urge to do so, but of the remainder who do not search, many are inhibited by fear of rejection and/or reluctance to seem disloyal to their adoptive parents. Of this latter group, if they themselves are ``found'', the majority said it was helpful to their self-knowledge and personal adjustment. Overwhelmingly the outcome of successful searches, by whomsoever initiated, had not harmed the enduring relationship with their adopting parents—indeed, in some cases it was perceived to have strengthened the bond. In my extensive experience of the stories of birth relatives, whatever the end result of a search, the searchers (and I am one such) are profoundly glad they set out and came to the end of their quest. Adoption affects about 10% of the population. The needs of the birth relatives in this enormous number have never been addressed. What is asked for would assuage much pain endured for decades . The adults concerned are of mature years. They are accustomed to make decisions dealing with matters concerning themselves and their loved ones. That is what adults expect. For the State to continue to interpose itself to prevent decision making can justly be labelled ``nannying''. The 1976 Act gave adult adoptees access to their original birth certificates. Since that date, whenever contributions have been invited in preparation for further legislation, many submissions have been made on behalf of birth relatives of adopted adults. These arguments have been heard but not heeded. This time; history should be made. *``Adoption, Search & Reunion'' by David Howe and Julia Feast, published by The Children's Society Memorandum from Hilary Saunders, National Children's Officer at Women's Aid Federation of England RE: AN AMENDMENT TO PROTECT CHILDREN INVOLVED IN CONTACT PROCEEDINGS IN CASES OF DOMESTIC VIOLENCE OR CHILD ABUSE I am writing to request permission to provide oral evidence to the Special Standing Committee on the Adoption and Children Bill. I would also like to submit the information contained in this memorandum as written evidence. I hope that the Committee will support an amendment to provide protection for children involved in contact proceedings in cases of domestic violence or child abuse. It has been acknowledged that this issue is highly problematic and in the last two years there have been attempts to improve court practice in contact proceedings involving domestic violence, including a consultation paper, an Appeal Court judgment on four test cases and the introduction of good practice guidelines. Women's Aid recognises that it is very important for children to have contact with both parents in cases where there is no question of abuse. However, the child's right to see both parents needs to be balanced by the right to protection in cases where there is reason to believe that a parent is violent or abusive. (Research studies have shown that a man who abuses his female partner is also likely to abuse his children, and children whose mothers are experiencing domestic violence are likely to have the worst outcomes in child protection cases). The Adoption and Children Bill could create additional problems by increasing parental responsibility for unmarried fathers who jointly register the birth of a child with the mother. While Women's Aid Federation of England recognises this as an equal opportunities issue, we are concerned that it will enable abusive unmarried fathers to track down women and children fleeing from domestic violence because it will be easier for them to obtain information about their children. For this reason we have asked the Government to deal with these two issues simultaneously. The judiciary would like to wait and see whether court practice improves as a result of the Appeal Court judgment in Re L, V, M & H and the introduction of the good practice guidelines. However, there is an additional pressure as the Children Act Sub-Committee are now considering how contact orders can be enforced more effectively. Clearly if the courts are going to enforce contact orders more effectively, it is essential that contact arrangements should be safe. For this reason, as part of our response to the consultation paper Making Contact Work, Women's Aid carried out a survey in June 2001 to find out if court practice has improved. 127 refuge projects took part in this survey and the findings are very disturbing: 30 refuge projects (23%) said they knew of abused women who had been ordered to hand over their children for contact since the Appeal Court judgment on 19th June 2000, although the woman was previously warned by social services that her children could be taken into care if she did not separate from this man. 15 refuge projects (11%) said that they knew of cases where contact orders had been granted since 19th June 2000, even though the child(ren) were previously on the Child Protection Register because of abuse by the father or step-father. 8 refuge projects (6%) said they knew of cases since 19th June 2000 where contact orders had been granted to Schedule 1 offenders convicted of cruelty to a child. In 5 of the cases involving Schedule 1 offenders or children on the Child Protection Register, unsupervised contact was granted to the perpetrator. In a current case a mother has been threatened with imprisonment for refusing to take her child for a contact visit with his father, who is a Schedule 7 officer convicted of cruelty to this child. In another case where contact was granted to a Schedule I offender, the only reason why visits are not taking place now is that the father is on remand charged with 32 offences against children. 61 refuge projects (48%) said that adequate safety measures are not being taken to ensure the safety of the child and the resident parent before, during and after contact. 60 refuge projects (47%) said they knew of cases in their area where a violent man had been able to use contact proceedings to track down his former partner. One refuge project reported a case where a man followed his former partner home after a contact visit, broke into her house and stabbed her, nearly killing her. A total of 45 refuge projects were aware of 128 abused women and 259 children who had been forced to comply with a contact order since 19 June 2000. In most of these cases the woman was threatened with imprisonment or told that residence of the children could be granted to the perpetrator. 114 of these children (44%) were under age five. Our survey report, Making Contact Worse, also contains details of 14 children who have been killed as a result of contact arrangements in England and Wales. We would be glad to send copies of the report to any member of the Special Standing Committee who requests this (Tel: 0117 944 4411). Women 's Aid believes that court professionals are continuing to recommend parental contact despite evidence of abuse, because there is a very strong presumption of contact within the Children Act (section 34) and relevant case law. As domestic violence frequently starts during pregnancy, about 45% of the children involved are under the age of five and too young to put in the witness box. This is highly problematic as case law requires the courts to demand a higher standard of evidence in cases involving more serious allegations. Ironically this means that it is much harder to protect children who have been physically or sexually abused, as without an independent witness or evidence from the child the courts are likely to assume that any allegations of abuse are untrue. For these reasons we believe it is vitally important that this opportunity to amend the Children Act to provide adequate safeguards for children involved in contact proceedings should not be missed. We would welcome an opportunity to discuss this in greater detail with members of the Special Standing Committee on the Adoption and Children Bill. Memorandum from Padmini Dearden I would like to be considered as an oral witness at one of the sessions regarding this Bill. I would like to address the issue of Birth Relative Initiated Contact (BRIC), which I believe is still not included in the amended bill. (I haven't been able to read the amended version due to a) no time to send for a copy, and b) the Internet version being in pdf format and I cannot read it on my pc) I am myself a birth mother who did initiate contact and know first hand of the problems encountered along the way. I have done a lot of work with other natural parents, relatives and adoptees and I think it is a grave error to remove a child from his or her natural family and pretend it no longer belongs to that family, but to another new family. I believe, along with many other professionals, natural parents, adoptive families, adoptees and the general public, that it is barbaric to remove a child from it's original family and not allow for future contact, initiated by the natural relatives of that child, albeit when the child becomes an adult. Please, please reconsider this matter and make provision for BRIC. I do have a lot more to say on the matter; I do hope I was not supposed to write down every word for you—there would be no point in attending if I wrote it all down! Memorandum from a Birth Family—Lyndon Thomas, Sara Sainsbury and Adam Sargant We are a birth father, birth mother and son who were separated by an adoption that took place in 1963. When the birth mother became pregnant, she and the birth father were parted by the birth mother's parents, and knowledge of the pregnancy was concealed from the birth father. Consequently he was not present at the registration of his son's birth and his name does not appear on the birth certificate. We were reunited in the year 2000. We all feel that it is important that the official records show the name of the birth father, and have sought to have the original birth certificate amended under section 10A of the Births and Deaths Registration Act 1953. The Director of Social Statistics has advised us that it is not possible to do this when a child has subsequently been adopted. This is because ``the Adoption Act requires the child to be treated in law as if they had been born as a child of the adopters' marriage and requires them to be treated legally as if they were not the child of any person other than the adopters''. We note that Section 64 of the Adoption and Children Bill appears to retain this declaration as to how an adopted person is to be treated in law, and ask the committee to consider amending the Bill to permit re-registration where the child has subsequently been adopted. This need not in any way affect the way that the child is treated in law. Had the birth father been present at the original registration of the birth, his name would appear on the birth certificate, and we are only asking that this be made possible subsequently. We would refer the Committee to Articles 7 and 8 of the United Nations Convention on The Rights of The Child. Article 7 recognises the right of a child to be registered after birth, the right to acquire a nationality and, as far as possible the right to be known and be cared for by his or her parents. Article 8 guarantees the right of the child to preserve his or her identity. We are seeking only to ensure that the birth record can be corrected where all parties concerned wish this. We hope that the Bill will ensure that this is possible. Lyndon Thomas (Birth father) Rhyd Alyn, Rhydymwyn, Mold CH7 5HE Sara Sainsbury (Birth mother) 115 Highland Avenue, St. Catharines, Ontario L2R 4J3 Adam Sargant (Son) 14 Harlans Close, Eaglestone, Milton Keynes MK6 5BP TEXT OF LETTER SENT BY THE DIRECTOR OF SOCIAL STATISTICS, THE OFFICE OF NATIONAL STATISTICS TO DAVID HANSON MP ON 30 AUGUST 2001 Dear Mr Hanson Thank you for your letter of 1 August addressed to Dr Tim Holt on behalf of your constituent Lyndon Thomas of Rhyd Alyn, Rhydymwyn, Mold, Flintshire. Mr Thomas is concerned that he cannot re-register his son's birth to include his details as those of the natural father. I am replying in the absence of the current Registrar General for England and Wales, Mr Len Cook, who has superseded Dr Holt. Section 10A of the Births and Deaths Registration Act 1953 does provide for a birth to be re-registered to record the natural father's details where the parents never married each other and no father's details are recorded in the birth entry. However, we have received legal advice that once a child has been adopted this provision ceases to be available because adoption law supersedes it. The Adoption Act requires the child to be treated in law as if they had been born as a child of the adopters' marriage and requires them to be treated legally as if they were not the child of any person other than the adopters. Adoption law generally works for the benefit and protection of the adopted child and their new family and I am sorry this is causing a problem in Mr Thomas' case. We recognise the distress this bar to re-registration can cause and we are seeking a way in which the Adoption and Children Bill may be used to enable re-registration to be authorised in cases such as this. If we are successful in this, we will contact your constituent to advise him of how to proceed. Yours sincerely, Karen Dunnell Memorandum from the British Association of Social Workers We welcome the opportunity to submit written evidence to the Special Standing Committee and hope to have the opportunity to expand on it in oral evidence. It is important that the voice of practitioners should be heard alongside those of adopted people, adopters and birth parents, and of agencies and their senior managers. The paramountcy of the child's welfare (clause 1(2)) and dispensing with parental consent (clause 50(1)(b) 1. We agree that the child's welfare should be paramount in all decisions relating to adoption except that it should not be paramount when a court is deciding whether to dispense with a parent's consent. It is equally important to amend sub-clause 50(1)(b), which provides that parental consent to adoption may be dispensed with if the child's welfare requires it. In saying this, we are following a recommendation of the Review of Adoption Law (1992), the comprehensive and expert review from which the present Bill largely derives, which we believe identifies a vital principle in adoption law. The key point is that the law should not allow a child to be removed from their family and have the legal relationship with their parents irrevocably severed simply because a court is satisfied that another family could do a better job. 2. With the Bill as it stands, it would be possible for a child to be adopted in a non-agency case against a parent's wishes with no court ever having been satisfied that the parent has failed to meet the child's needs or is unsuitable to care for the child. The only safeguard for parents is sub-clause 1(4)(f), which sets out considerations relating to parents and other relatives to which the court must have regard, but these considerations count for little or nothing if they do not fall on the same side of the scales as the welfare of the child. Paramountcy will always tip the scales conclusively. The court will make an adoption order if it is on balance even marginally conducive to the welfare of the child, quite irrespective of whether there is parental consent or parental opposition. 3. The Review of Adoption Law proposed that the court should be satisfied that the benefits for the child of adoption are so significantly greater than those offered by any alternative as to justify dispensing with consent. We support this wording. It continues to give the child's welfare great significance while creating space for other relevant considerations. Decisions about children's future welfare are based on uncertain predictions. Before dispensing with a parent's consent, and irrevocably ending their parenthood, it is reasonable that the court should ask itself, ``How much better for the child is adoption likely to be, and how satisfied are we that this is the case? Is the benefit to the child sufficiently significant, and are we sufficiently confident that it will in fact arise, to justify us in irrevocably ending this person's parental status?'' 4. Clause 1(8)(c) should be amended to provide that references to the court's making an order do not include its dispensing with parental consent. Clause 50(1)(b) should be replaced with the wording on dispensing with consent recommended by the Review of Adoption Law. Other matters in Clause 1 5. Clause 1(4)(f) applies only to relationships which the child has already established. When determining the future of children, particularly those who are very young, it is important that both the adoption agency and the court should also consider relationships, for example with grandparents, which it may be beneficial for the child to develop in the future. Such considerations can be relevant to deciding whether the child's interests would be best served by an adoption order or by an alternative such as a residence order or special guardianship. Sub-clause 1(4)(f) should therefore also refer to relationships which may be established in the future. The duty to provide a comprehensive adoption service 6. Clause 3 improves on existing law by making it clear that the duty to provide a service to adopted people does not cease when they reach 18. There should be a duty to provide adoption support services to relatives such as grandparents and siblings. It may be that the Secretary of State intends to require this in regulations to be made under clause 3(3)(a). 7. Clause 4 needs substantial improvement. A distinction should be drawn between the basic service of social work support, which should always be available as the main component of adoption support services, and additional services, such as the payment of an adoption allowance, where there is a case for some exercise of discretion. Social work support in connection with adoption should always be available, and it should not initially be conditional on an assessment of a person's needs having already been carried out. It should not be open to a local authority to decide whether or not to provide it, although once the order is made its duration and intensity should be discretionary. One of our concerns with the present wording is that it may lead to an excessively bureaucratic approach in which nothing will be done to help people until standardised assessment forms have been completed and processed through complex rationing machinery. The end result of this approach can be that time and money which could have been spent on helping people is spent on deciding that their need for help does not have sufficient priority. 8. Sub-clause 4(1) restricts people to asking for support services for themselves. It does not provide, for example, for adopters to seek support for their child, or for the local authority to assess the child's needs at the adopters' request. Consents 9. In clause 18(1)(a), we are not sure whether the present arrangement whereby a parent may consent to adoption by specific adopters whose identity is protected by a serial number can be continued. The clause refers to adopters ``identified in the consent'', and ``identified'' would appear to mean ``named''. We think it should continue to be possible for a parent to agree to adoption by unnamed specific adopters about whom s/he has received sufficient information. 10. Clause 18(1) requires consent to an adoption placement only from parents and guardians. The consent of other people holding parental responsibility, eg under a residence order or under clause 107 of the Bill (acquisition of parental responsibility by step-parents) should also be required. 11. The Bill, unlike the previous administration's draft Bill, makes no provision for the child to consent to adoption. Our view is that: —the child should be a party to the proceedings; —a child of sufficient understanding should have the right to refuse consent to adoption and the court should then not have the power to make an adoption order; —the child should also have the right to consent to the adoption, to refrain from giving or withholding consent, and to express any other views or wishes in connection with the application and to have them taken into account. What kind of placement order? 12. The replacement of freeing for adoption by placement orders is to be welcomed, but in our view the Bill has opted for the wrong kind of placement order, and the proposals we put forward below, for a broader type of placement order to be introduced by appropriate amendment of the Children Act 1989, would make for a very substantial improvement of the law. 13. Local authorities have a duty to enable children they are looking after to live with a parent, relative, friend or other person connected with them unless this would not be reasonably practicable or would not be consistent with the child's welfare (s23(7), Children Act 1989). The decision that it is impracticable, or inconsistent with the child's welfare, to be restored to his or her parents, and that some form of long-term or permanent substitute family placement should therefore be found for the child, is a crucial one, and it can of course be the start of a process which will lead to an application for an adoption order. This decision, which is taken within the local authority with no involvement of a court of law, is often far more significant in determining the child's future than subsequent adoption proceedings, which may reach the court only when the passage of time has made other options either impracticable or much less likely than they might have been at an earlier stage to be in the child's interests. 14. As professional practitioners involved in taking these decisions to cease attempts at rehabilitation and seek a substitute family placement, we consider that they would more appropriately be taken by a court, at a hearing where all concerned parties could be heard. The main issue before the court would be whether it is satisfied that it is, and is likely to continue to be, either not reasonably practicable or else inconsistent with the requirements of the child's welfare for the child to live with a person who already has parental responsibility (or whose parental responsibility under a residence order has been ended by the making of a care order). If the court was satisfied on this point, it would then release the local authority from its duty to seek to enable the child to return home by making a placement order which would authorise the authority to make a long-term or permanent substitute family placement. This might be an adoption placement, or with a view to special guardianship or a residence order, or with foster parents committed to offering the child a permanent home. 15. A placement order of this kind should not restrict a parent's subsequent right to refuse consent to the making of an adoption order (as distinct from an adoption placement), but evidence accepted by the court making the placement order might well be relevant to a subsequent decision as to whether to dispense with that consent. This preservation of the right to oppose the making of the adoption order makes possible a further improvement to the Bill. The Bill provides for parents to consent either to adoption by prospective adopters identified in the consent or to adoption by any prospective adopters chosen by the agency. There is not always, however, a free choice between the two options. If the agency finds itself under a duty to apply for a placement order, then the choice of consenting to adoption only by adopters identified in the consent disappears. It is relevant to ask at this point what a responsible parent should do. It is at the very least arguable that the responsible parent, accepting that adoption would be in the child's best interests, continues to exercise her parental responsibilities as fully as she can, and therefore carefully considers all relevant information about specific adopters proposed by the agency before agreeing to the adoption. Our proposals would make this possible.
Placement orders as in the Bill 16. Clause 21 does not provide any time to seek a parent's consent. As soon as a local authority decide that a child they are looking after ought to be placed for adoption, they are immediately put under a duty to apply without delay for a placement order rather than seek the parent's agreement to adoption. This cannot be what is intended and the clause should be redrafted to make it clear that the local authority is expected to have taken time to work with the birth parents on the plans for the child and to explore with them whether they will consent, before applying for a placement order. It may be that the intention is that this work with parents should be undertaken after the placement order has been applied for, but this is not satisfactory. 17. It is not desirable that a placement order should remain in force for years. Its purpose is to authorise the agency to place the child. If the child is not placed within, say, two years, the court should be required to review the order. 18. By clause 21(2)(a) the local authority are instructed to apply for a placement order if they are satisfied that the child should be placed for adoption and the child is the subject of an application on which a care order could be made. This form of words includes, as well as a care order application, an application for a supervision order. It seems perverse to provide that an application for a supervision order, which envisages that the child will remain at home, could be followed up with an application for a placement order. Sub-clause 21(2)(a) should be restricted to applications for care orders. Even if this change is made, there will be cases in which the child is still living at home. ( There may be no emergency protection order or interim care order in force, and it is not impossible that a decision that the child should be placed for adoption could be made while the child is at home; it depends on the history of the case prior to the application for a care order.) We do not think it is appropriate to apply for a placement order in respect of a child living at home, and would therefore like to see sub-clause 21(2)(a) further amended so that it refers only to a child whom the local authority are looking after. We have in any case serious reservations about placement orders being applied for when a local authority has applied for a care (or supervision) order and that application has not been disposed of. It is unreasonable to require a parent who is contesting a care order application to enter at the same time into discussions about the possible adoption of the child. Also, relatives who may well be able and suitable to care for the child often do not come forward until a care order is made, in order to avoid competing with the parents. It would be preferable for the care proceedings to be completed before the local authority applies for a placement order. We suspect that the main reason why the Bill does not follow this course is the inordinate length of time taken by some care proceedings, but this is already a disservice to children and should be tackled. Where a local authority applies for a placement order after applying for a care order, but before that application is disposed of, the court should, once it has found that the threshold conditions for a care order are met, adjourn the proceedings to allow a reasonable time for the authority to explore with parents and other relatives their wishes and feelings about adoption and possible alternatives, before considering making a placement order. 19. An important purpose of the placement order hearing should be for the court to confirm the local authority's view that to return to the birth family would no longer be in the child's interest. Before making a placement order, therefore, the court should be satisfied, not only that the child's welfare will be best served by seeking an adoption placement, but also that it is and in all likelihood will continue to be either impracticable or contrary to the child's interests for a parent or other person with parental responsibility to take over the child's care. 20. Clause 23 provides for the revocation of placement orders. Unless the application for revocation is made by the adoption agency, the leave of the court is required. Sub clause 23(3) prevents the court from giving leave if there has been no change of circumstances. We suggest that it is unnecessary to fetter the court's powers in this way. There could well be confusion over what constitutes a change of circumstances, especially when the purpose of the order is to achieve an important change in the child's circumstances by placing him or her for adoption. If the child remains unplaced, that failure to change circumstances could well form part of a case for revoking the order. Sub-clause 23(3) should be deleted. 21. It should be made clear that an alternative, satisfactory, non-adoption placement justifies the revocation of a placement order. 22. Clause 24(3) gives parental responsibility to prospective adopters while the child is placed with them. We believe that it is not appropriate to give parental responsibility to prospective adopters. The agency is empowered to remove the child from them, and they are legally free to hand the child back to the agency. This does not accord with the carrying of parental responsibility in other circumstances. It would also constitute the only situation in which a local authority or a voluntary organisation would have the power, without reference to a court, to confer parental responsibility. 23. Clause 28(1) provides that a care order made before or at the same time as a placement order has no effect while the placement order is in force. This seems misguided. The care order gives the local authority important duties, while the placement order is primarily an authorisation. We can see no reason why the care order should not continue to have effect, with the placement order supplementing it. Clause 28(1) should be deleted. Adoption Orders 24. A parent or guardian who has consented to a child's placement for adoption, or whose child was placed under a placement order, needs the court's leave in order to oppose the making of an adoption order. Clause 45(7) precludes the court from giving leave unless it is satisfied that there has been a change of circumstances. We think this restriction is unnecessary and undesirable. There may for example be grounds for opposing the particular adoption application. It would not look reasonable for a court to refuse a parent leave to oppose an application which the court itself was minded to refuse. Clause 45(7) should be deleted. 25. Unlike current legislation, the Bill does not say what happens to the child if the court refuses an application for an adoption order. This gap needs to be filled. Definition of consent to adoption 26. Clause 50(5), like the existing law, defines consent as ``consent given freely, unconditionally and with full understanding of what is involved''. There is a problem with the word ``freely''. Whilst it is of course important that consent should not be obtained under duress or through improper pressure, it is not the experience of most parents that they are in a position to consent ``freely''. Almost invariably, their perception is that they are left by force of circumstances with no alternative. They therefore find it very difficult to sign a form which requires them to state that their consent is given freely. The word ''freely'' should be replaced by a phrase which more tightly defines an absence of improper pressure or duress. Modification of the 1989 Act in relation to adoption 27. Clause 51(1), (2) and (3) disapply or modify Children Act duties to ascertain the wishes and feelings of certain persons and to promote contact with parents when a local authority is authorised to place a child for adoption. They go too far. In particular: —there is no reason to modify or disapply s.22(4)(d) of the 1989 Act, which refers to any person whose wishes and feelings the local authority considers relevant; and —no reason to disapply or modify paragraph 15(1) of Schedule 2, which deals with the promotion and maintenance of contact between child and family. This sub-paragraph can stand, because the duty to promote contact is subject to its being reasonably practicable and consistent with the child's welfare. Information about the regulations to be made under clause 51(1) will however be needed before the intention behind this clause is clear. Information to be kept about a person's adoption 28. We understand that one consequence of clauses 53 to 62 will be to qualify an adopted adult's statutory right to his or her birth certificate. We do not think there is any justification for this change. The status conferred by adoption 29. Clause 44(3)(a) makes it clear that an adoption order does not affect parental responsibility as it relates to the period before the order is made. Clause 64(1), which provides that an adopted person is to be treated in law as if born as a child of the adopters' marriage, does not sit well with this. It would be preferable to say that an adopted person is to be treated in law in the same way as a person born as a child of the marriage. This would get rid of the ``as if'' wording which unhelpfully implies a legal pretence or fiction which is at odds with the facts. The adoption of step-children, and parents' adoption of their own children 30. Clause 49(2)(a) is a welcome improvement on the present law, making it possible for a step-parent to make a sole application to adopt a step-child. At present both spouses have to make a joint application, with the effect that one of them, usually the woman, has to adopt her own child. This unsuitable option of a joint application is, however, retained in the Bill. There was a time when it was not uncommon for an unmarried mother (as she would then have been referred to) to apply to adopt her own child, in order to spare the child the stigma of illegitimacy, but, fortunately, there is no longer a case for adoptions of that kind. It is now time not only to provide a new framework for the adoption of step-children but also to remove all options for parents to adopt their own children. 31. The Bill also introduces, in clause 107, a new provision enabling a step-parent to acquire parental responsibility for a step-child, either by agreement or under a court order. This welcome development (which provides an alternative to custodianship for step-parents which the Children Act 1989 unaccountably abolished) will normally be preferable to adoption for step-children, as in most cases it is not desirable in the child's interest to sever totally the legal relationship between the child and one of his parents. This principle was expressed in the Children Act 1975 in relation to custodianship, but the present Bill treats parental responsibility and adoption for step-parents as wholly unrelated issues, and the court is given no power to make a parental responsibility order in adoption proceedings. A new clause is needed to the effect that the court shall treat an application for an adoption order by a step-parent as an application for a parental responsibility order unless satisfied that an adoption order would serve the child's interests better than a parental responsibility order. Special guardianship 32. Clause 110 amends the Children Act 1989 to create special guardianship. We very much welcome this new alternative status enabling people to be legally recognised as children's permanent substitute parents without totally extinguishing the legal status of their birth parents. 33. We have some concern about the proposed new s14C(1)(b) in the Children Act, which entitles special guardians to exercise parental responsibility to the exclusion of parents. This may be too all-embracing. Alternatives may be to specify rights and responsibilities in more detail in the Bill, or to provide that this entitlement may be modified by provisions made in the particular special guardianship order. (The proposed new s14E(4) already states that a special guardianship order may contain provisions which are to have effect for a specified period.) 34. In many modern adoptions, adopted children have continuing contact with a birth parent who remains a significant figure in their lives. Special guardianship provides a legal framework which corresponds better than adoption law to the reality of these adoptions. We therefore hope that special guardianship will become a very significant alternative to adoption, and that it will be public policy to encourage its use. It would therefore be appropriate to introduce into the Bill a requirement that a court hearing an application for an adoption order shall consider whether a special guardianship order will better serve the child's welfare, and if satisfied of this may treat the application as an application for special guardianship. Care Plans 35. Clause 112(2) amends the Children Act 1989 by requiring a local authority to prepare a care plan when applying for a care order. As worded, however, this requirement will also apply if the authority applies for a supervision order. Since under a supervision order the local authority is not responsible for the child's care, this is inappropriate. Further recommendations from the Review of Adoption Law 36. There are several other recommendations in the Review of Adoption Law which should be enacted in the Bill. They include: —The legislative framework should underline a child's right to know that he or she is adopted; —A court hearing an application for a placement order or an adoption order should have a duty to consider making a contact order; —Parents should have a right to attach an explanatory statement to their consent. Memorandum from Dr. Peter Hayes, School of Humanities and Social Sciences, University of Sunderland Ch. 1, para. 5 of the Adoption and Children Bill 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. '
This requirement is unwise. It repeats the mistake of the Children Act in giving sanction to the ideological agenda of those child care professionals who are obsessed with ethnicity. `Due consideration' with its connotations of judicious balance may sound like a fine compromise, the kind of statement that the members of the committee and indeed all reasonable people can comfortably accept. But enshrined in law, these same words will be interpreted to mean `paramount consideration' by some social workers. If this paragraph becomes law, therefore, past experience and logic suggest that it will
have the following results:
1. It will delay the placement of all children, but especially minority children, by needlessly subdividing and restricting the parent pool (the particularly long placement delays experienced by minority children is recognised, although probably understated, in the 2000 White Paper, 6.4).
2. It will prevent placements. Restrictive policies will mean that some children cannot be placed at all.
3. It will disrupt placements. Children in transracial foster placements will be unreasonably removed when the foster parents seek to adopt the children in their care.
4. It will justify ignoring the wishes of some minority children. The express requests sometimes made by minority children, particularly mixed background children, for placements with white parents will be invalidated.
5. It will bolster informal local authority policies of deterring parents who wish to undertake an intercountry adoption (these adoptions are almost inevitably trans-ethnic).
6. It will contribute to the (often correct) perception of potential adoptive parents that to pass an adoption assessment they will have to jump through hoops, mouth things they do not believe. This deters parents from coming forward (the problem is recognised in the 2000 White Paper, 2.15-2.16).
7. It will justify the unnecessary rejection of potential adoptive parents and existing foster parents deemed to respond `inappropriately' to questions on ethnicity.
Furthermore, the supposed need to consider ethnicity in placements is roundly refuted by research on adoption outcomes, which show that transracial adoptions work as well as any other. It also muddles inherent biological traits with chosen cultural attributes, you do not, for example, inherit religion in the way you inherit skin colour.
It is suggested that `due consideration' be replaced by `no consideration', with exception being made for the express wishes of the child, and in some circumstances the birth parents.
References P. Hayes `Transracial Adoption: Politics and Ideology', Child Welfare 72 (1993), 301-10; `The Ideological Attack on Transracial Adoption in the USA and Britain', International Journal of Law and the Family 9 (1995), 1-22; `Deterrents to Intercountry Adoption in Britain', Family Relations 49 (2000), 465-71.
Memorandum of Evidence from Pete Bentley
I have worked professionally in the field of Adoption and Fostering for 28 years. I Chair a Local Authority Adoption Panel and a Voluntary Agency Family Placement Panel in addition to preparing Independent Reports for the Courts in Child Care Cases (including Adoption Cases). The comments below are mine alone.
1) The Bill does not provide for the legal consent of the child concerned to an Adoption Order. I suggest that from the age of 12 the clear `legal' consent of the child to the Adoption Order should be a statutory requirement (subject to the Court having the power to find that the consent of the child is not required) ie: a similar wording to that in force in Scotland [contained, I understand, in Section 12 of the Adoption (Scotland) Act 1978].
2) Clause 115 (1) (a): suggest add the words `or special guardianship' after the word `adoption' with consequential amendments elsewhere to enable the Adoption and Children Act Register to be used to assist the placement of children where `special guardianship' rather than adoption is considered to be the legal status which best reflects the welfare of the child.
3) I am concerned that the present `legal right' of an Adopted person (aged 18 and over) to information which enables them to obtain their birth certificate directly from the Registrar General (and which was maintained in the first Adoption and Children Bill) has now been diluted by putting the `right' in Schedule 2 of the new Bill. Clause 76(4) effectively deletes Schedule 2 when Clauses 53-62 come into force. I suggest that this `legal right' direct to the Registrar General be reintroduced into the Bill.
4) The Adoption Agencies and Children (Arrangements for Placement and Reviews) (Miscellaneous Amendments) Regulations 1997 [SI 1997 - No 649] amended the Adoption Agency Regulations 1983 - see Reg 8(2)(h and i) and Reg 11A (4) to (9) to give adoptive applicants the right to see the Agencies assessment prior to it going to a Panel and the right to make representation to the Panel if the Agency was minded to `turn down' their application. I believe that this provision has been sufficient protection for potential adopters.
However if further `appeal rights' are to remain in the Bill for potential adopters I believe that a birth parent should have access to the same rights when an Adoption Panel is considering whether Adoption is in the interests of her/his child's welfare.
5) Clause 45 (2): Suggest inclusion of the word `or' at the end of sub clause (a).
6) Clause 30: There appears to be an inconsistency in that in Para 91 of the Explanatory notes the relevant time period is stated as `7 days' and as `14 days' in Clause 30 (2)(b) of the Bill.
Letter from Jean Robertson-Molloy
I am a birth mother and also a retired Social Worker. In the latter capacity I have seen the effects of loss, grief and also secrecy on the mental health of many women, particularly birth mothers.
The relevant sections of the new Adoption Bill on which I wish to comment are:
—1. p33 para.59 (2). I welcome this statement but would ask that it be strengthened by the addition of the words:
``This should include birth parents of an adult adopted person (over the age of eighteen)''.
My reasons are set out below.
—2. Explanatory Notes: p.35 para.141. I am concerned that the Bill should clarify that older birth parents i.e. those whose children are eighteen and over, should not be excluded from any service which may be offered. Again I expand on the reasons below.
—3. Explanatory Notes: p.70-71 para. 305—last three sentences: I would take issue with this interpretation, precisely because the group of birth parents to whom I am referring are becoming more and more aware of the differences in the way in which we were treated from today's more enlightened system, and are still seeking support, advice and sometimes redress.
As a birth mother myself, I still suffer the sadness of having given up my first child for adoption in Australia in 1963. However, I was fortunate enough to be able to trace her 10 years ago, thanks to the more liberal laws in Victoria. Although I was only able to meet her once, it was a huge relief and joy to me to know that she was alive and happy, and did not blame me for what had happened.
As you are aware, in the U.K. it is not illegal for birth parents to try to find their adult relinquished children, but it can be extremely difficult, expensive and often impossible to do, because of the inconsistency of agency attitudes. Therefore, I am asking that in your Adoption Bill, you make it easier for agencies to offer help to birth parents who wish to let their adult adopted children know of their willingness to exchange information with them. There would be no compulsion on the adopted person to do so, thus their rights to privacy would be protected.
In humanitarian terms, I hope you will consider it worth doing something. I am now in my sixties, and there are many older birth parents, but I can assure you that the pain does not lessen with age, and we will never forget our children. The grief of losing a child, and then the blanket silence on the future life of one's lost child, can be a not insignificant cause of many later mental and even physical health problems, and therefore may increase the funding demands on our public services.
I hope your Committee will take account of all these matters in its recommendations.
Memorandum from ATD Fourth World
PART 1—BACKGROUND
1. Introduction
Moraene Roberts would like to give oral evidence in relation to this document. Ms Roberts is a 48-year-old parent of three. She was herself adopted as a child and has suffered trauma and depression as a result. Her older son has special needs and was accommodated by the local authority from the age of ten to seventeen. It was suggested that her youngest child be placed for adoption due to her depression and increasing physical disabilities. She resisted this and her son still lives with her. Ms Roberts and her children have received family support from ATD Fourth World for eleven years and she is actively involved in building mechanisms for the participation of families living in poverty in local and national policy making—and in developing service user involvement in social work training. She speaks from a collective viewpoint based on the experiences of families experiencing poverty and subject to social service intervention.
ATD Fourth World has 25 years of experience of family support in the UK. We work specifically with families living in persistent poverty, most of whom are dealing with Social Services intervention. The majority of the adults with whom we work have been in care as children and many have themselves been adopted. As parents, they are suffering the involuntary removal of their own children into care and, far worse, adoption. Over the past four years, through regular policy forums, ATD Fourth World has been empowering families and individuals living in long-term poverty to bring their experiences directly to policy makers whose decisions profoundly affect all aspects of their family life.
Birth families seriously disadvantaged by poverty are the least likely to be heard and the least likely to be able to fight for their rights and the rights of their children. This is compounded by the false but widespread assumption that birth parents who have had children removed are—at best—socially inadequate and unfit to parent their children, and—at worst—people who have been cruel and abusive. This assumption of guilt creates shame for parents who have lost children through lack of parenting skills, insecure housing and the many other devastating effects of a lifetime of poverty and social exclusion. The political voice of birth parents, relative to adoptive parents, is weak due to their lack of personal and financial resources—and opportunities to come together.
``For people like us, help comes too little, too late. It's always a reaction—never what we need, when we need it.'' 1
The Adoption and Children Bill assumes that Social Services are being adequately resourced to carry out the necessary preventative family support work and therefore that the children who are in long-term care are categorically unable to return home. However, the reality on the ground to which the Bill will apply is one of a general lack of family support services. Due to a massive lack of financial and human resources, Social Services are currently budget-led not needs-led. The result is that a majority of Children and Family cases are crisis-driven as opposed to the ideal of preventative family support. Indeed, this state of affairs contravenes Article 18 (2) of the Convention on the Rights of the Child: `States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children'. Therefore, many looked after children who could have remained with their family given the right support at the appropriate time, will be at risk of being adopted under this Bill.
Adoption is a drastic measure with far-reaching, lifelong implications for the adopted child and the birth parents. We do not believe that adoption as it currently stands is in the best interest of the child except in very exceptional circumstances. Equally, adoption should never happen without the birth parents' consent except in very exceptional circumstances. For the child, it is a right to know and be cared for by his or her parents under Article 7 (1) of the Convention on the Rights of the Child. For the birth parents, the right to marry and found a family is a human right under Article 12 of the European Convention on Human Rights. Moreover, Article 8 states `everyone has the right to respect for his private and family life, his home and his correspondence.'
``What the adopters have is a desire for your child. That desire cannot be called a `right'. It is a wish for something not naturally theirs.''
We shall further argue that in the best interest of the adopted child full contact with the entire birth family should always be maintained—except with individual perpetrators of sexual abuse and/or when the child expressly wishes not to have contact with a person.
PART II -AREAS OF CONCERN ARISING FROM THE BILL
2. Consent
``We lost our child to adoption, and that child was never ever harmed, they actually decided to take her away before the child was born, and that's completely unacceptable. Under the 1989 Children's Act you must have an investigation of the child's circumstances before they are taken away.''
It is important for society to guard against the possibility of social engineering through adoption of children from families living in persistent poverty into middle class adoptive families. This is particularly important given the statistics2 on the types of employment or indeed unemployment of birth parents and adoptive parents. 89% of birth mothers and 68% of birth fathers are unemployed. Less than 2% of birth parents are employed in professional, managerial or technical positions whilst 57% of adopters in full time employment hold such posts. If such social engineering were to occur, it would be in contravention of the European Convention on Human Rights, Article 14, which protects against discrimination on any ground, including social origin, property, birth or other status and Article 8, the right to respect for private and family life.
We are concerned that Section 44(2), which allows for the court to dispense with parental consent to placement or adoption based on the welfare of the child, does not refer back, on the face of the Bill, to the welfare checklist in Section 1 (4), and in particular to subsection (e): the need to consider any harm which the child has suffered or is at risk of suffering. Explicit reference to the threshold criteria of harm should be made on the face of the Bill in Section 44 (2) on dispensation of parental consent, not left to the explanatory notes.
The threshold test of harm should be carried out before a decision of non-restoration to the family is taken. Birth parents' experience of current practice is that adoption is in effect decided upon long before any court hearing. Social services start to reduce the length of access visits and eventually stop contact to prepare the looked after child for adoption. The level of support to the birth family is also reduced once social workers have decided that adoption is the plan for the child. This reduces their potential to change. Such decisions on contact and non-restoration should only be taken by a judge in court. This is in accordance with the right to a fair hearing under Article 6 of the European Convention on Human Rights.
Under the new Bill the process of deciding for adoption is further speeded up, thereby hindering parents access to the legal system and justice. Poverty prevents birth parents from accessing the best legal representation to fight losing their child to adoption. Legal services provided under the Legal Aid Scheme, despite the theoretical quality checks of the solicitors' franchising process, are not always of the best quality. And the poorest families in the most difficult situations often suffer most from this. Where a family have no telephone and sometimes no fixed address, or where under the stress surrounding them it is difficult to find the courage to return phone calls or answer letters, or have faith in any professionals, it can take enormous dedication on the part of individual lawyers to see that a client's prospects of a fair hearing do not simply fall through the net. Moreover, the experience of birth parents is that there is a tendency amongst solicitors to refuse to take the case, as they feel sure that adoption will go ahead anyway so there is little point fighting it.
We oppose the use of the words freely and unconditionally to define ``consent'' in section 44(3)(a). The White Paper indicated that the wording of the adoption consent form would be changed to better reflect the birthparents' feelings. Many birth parents although able to recognise their own inability to parent their children, find it impossible to sign a form which states that their consent is given `freely and unconditionally'. Consent forms should be worded so that the birth parents can make a statement about not agreeing to the adoption whilst still having their child's best interests at heart. This should be included in the definition of consent in the Bill so that the form of consent can reflect this.
We endorse BAAF's recommendation that the word `freely' be replaced by `without improper duress or inducement'. Being pressured to sign is presently a common experience of birth parents living in poverty. Experiences of inducement include: Social Services misleading the parent into signing by offering services; telling the parent that their child will be far better off with wealthier adoptive parents. Experiences of duress include: Social Services making threats of keeping the child in care permanently, never to be returned home; daily pressure before and directly after giving birth; pressure on a mother who has post-natal depression. Birth parents also spoke about being humiliated by Social Services with questions like, `what can you really offer your children?'
The 6 weeks' grace given to mothers after giving birth in Section 44 (1) does not sufficiently protect them from improper duress at a very vulnerable time, which may continue for months after the birth. We recommend that Section 44(1) read `Any consent given by the mother to the making of an adoption order is ineffective if it is given less than three months after the child's birth.'
We are concerned that targets to increase the number and speed of adoptions, mentioned in the White Paper, will increase the chance of inappropriately and unjustly placing children for adoption. Targets to increase the number and speed of adoptions may counter the best interests of children. Real success of legislation to improve the welfare of children would be measured by targets to reduce the number of children at risk of harm through the provision of support services best suited to each child's individual circumstances.
We welcome Section 1(4)(a), which states that the court or adoption agency must have regard to the child's ascertainable wishes and feelings regarding the decision. However, we are disappointed that the views of the child are not given higher regard throughout the rest of the Bill. Birth parents' with whom we work have suggested that the views of their child have not been taken into account and that guardians ad litem do not always give the views of the child.
We endorse the wish of the child over the wish of the parents at every stage of the proceedings. Decisions are being made concerning the entire lifetime of the child; the child's views should be of prime importance. The Bill should therefore reflect this by making statutory the mechanisms for ascertaining the child's views and ensuring that they are taken into account. The Bill omits to refer to the consent of the child concerned. If a child above age 103 expressly states that she or he does not want to be adopted then there should be no adoption.
3. The Right to Identity
The right to identity is an extremely important issue central to the debate on the child's welfare under adoption. According to Article 8. 1 of the UN Convention on the Rights of the Child, states that parties should undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. It is therefore vitally important that courts and adoption agencies have regard to this.
Our experience working with people who have been adopted as children and have since tried to find out about their birth parents is that they are extremely ill prepared to confront their origins. Not knowing their background causes psychological difficulties and lack of self worth. Adopted children are often denied access to their origins, and therefore a large part of their identity. Such a denial of a basic right will cause trauma at some stage in that person's life. If trauma results whilst still a child, the stability of the adoptive placement may be threatened. However, if an adopted child has immediate and ongoing access to his or her origins, the process of coming to terms with who they are and where they come from will help to promote the child's self esteem and positive identity. Knowing his or her roots does not necessarily lessen the love of the adopted child for his or her adopted parents. The Bill should serve to challenge this common misconception by making access to a child's origins statutory, even in cases of closed adoption where the child is not able to maintain contact with his or her birth family.
Section 51 of the Bill states that an adopted person is to be treated in law as if the person had been born as a child of the marriage of the adopter or adopters. The wording as it stands serves to continue the myth that the adoptive parents are the actual birth parents. It should be worded `adopted children are to be treated in law in the same way as a child born of the marriage'.
To preserve identity, an adopted child should not be issued with what is in effect a new birth certificate (as set out in Section 61(4)) but with a certificate of adoption in addition to his or her original birth certificate. This would be more in line with Article 7.1 of the UN Convention on the Rights of the Child whereby the child shall be registered immediately after birth and shall have the right from birth to a name, nationality, and as far as possible, the right to know and be cared for by his or her parents. The child should also be allowed to keep their birth surname, jointly with the adoptive surname if desired. In addition, provision must be made to ensure the disclosure of adopted status (of the child) before or at 18 years of age. These measures would go some way toward fully upholding the right of adopted children to know who they are and where they come from.
4. Contact
``You hear about brothers and sisters having to search for each other or be reunited after years. For us we don't have to go around looking for one another. That is one good thing about it all, being together.''
The deep psychological effects on the identity and self-esteem of a child subjected to closed, non-contact adoption, which severs all ties with birth family and therefore origin, must be recognised. Current `open' adoptions do not go far enough to alleviate this traumatic experience. Children feel rejected, and patterns of rejection often continue throughout their lives. Adoption attempts to create a new history and can bring children into conflict with their past and cause problems of personal identity. Fully-open adoption4 is a means to countering the conflict and trauma by supporting children in understanding their lives in a way that is respectful and non-judgemental of background and heritage. Children should not be made to feel ashamed of their backgrounds and should not be denied the right to ongoing contact with their birth family and support to establish or maintain positive relationships with them. Simply because it has been decided that adoption is in the best interests of the child, does not mean that it is contrary to the best interests of the child to maintain contact with his or her birth family. This is also his or her right under Article 9 of The Convention on the Rights of the Child: `States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.' Fully-open adoption is a better means of supporting both the adopted child and the birth family in coping with the complex psychological trauma of adoption.
Research5 has shown that: maintaining contact can contribute to the stability of placements; children can maintain attachments to a number of adult/parental figures; and security and positive sense of identity for children in long term care does not necessarily lie in the severing of connections and placement for adoption.
Currently, the Bill leaves provision for contact following a placement order to the courts' discretion (Section 23(5)) and makes no reference to contact following an adoption order (Sections 38 to 49). The Adoption Contact Register under Section 65 is only for adopted persons who have reached the age of 18, not adopted children. The Bill has omitted to recognise the enormous benefits of contact for adopted children and in so doing is denying them access to the lifelong resource that their birth family represents.
Regarding Section 25(a) and (b), the court must have evidence that the original contact decision is detrimental to the child before refusing or reducing contact after application from the child, agency, parent or guardian. Children should also be made fully aware of their right to make an application for contact and assisted to do so.
Complete severing of all links to a member of the birth family should only happen when he or she has been the perpetrator of sexual abuse, or when the child so wishes. Contact with the rest of the birth family should not be affected. Children should not be denied contact with other members of their family due to one member having committed abuse.
In the best interests of the child, contact must be supported and maintained between siblings where their separation has been unavoidable. Contact between adopted siblings and siblings left in the birth family or born after the adoption must also be fully supported - as should attempts by children to find their siblings later in life.
Approval of prospective adopters should require their commitment to maintain the level of contact between child and birth family required by fully-open adoption. Adoptive parents should be given support to ensure that they are able to carry out the contact arrangements made. There should be a statutory annual review of contact arrangements both to ensure that adoptive parents and Social Services are fulfilling their obligation to facilitate contact between birth families and adopted children, and to establish the changing wishes of the child with regard to the degree of contact they desire with their birth parents and extended family.
To facilitate adopted children's access to their origins and identity, we recommend that an independent National Contact Agency for processing letters and presents be set up. When a child clearly expresses the wish for the birth parents to be given information, support should be provided for this and the child should be updated at all times. At the very least, adopted children and birth parents have the right to be informed if one of them dies, even in the case of closed adoptions, and this should be legislated for. Birth parents and adopted children have said ``The most vital piece of information is—are they alive?'' Birth parents should be informed if their child dies and adopted children should be informed if a birth parent or sibling dies.
In the best interests of the child, the Bill should make specific provision for contact following adoption and placement orders. In the best interests of the child, there should be a presumption of fully open adoption in all cases.
5. Support for Birth Parents throughout Care Proceedings, the Adoption Process, and Beyond
``She has survived three attempts at suicide. What do they expect when you have your children taken away?''
The following recommendation was made in the Department of Health's own Review of Adoption Law6:
`. . . agencies should have a statutory duty to ensure parents of a child, whom it is proposed to place for adoption, are offered full opportunities to receive advice and counselling. This should be provided by a social worker who is not involved in the adoption plan if the birth parent so wishes.'(para 28:6).
Section 3 of the Bill makes statutory the maintenance of services (counselling, advice and information in connection with adoption) for children, their birth parents, prospective adopters and adoptive parents. However, the Bill (Section 4) only places a duty on local authorities to carry out an assessment of a person's need for adoption support services. There is no duty to actually provide these services once it has been decided that a person has needs for them. Section 4 (4) only places a duty on local authorities to decide whether to provide any such services to that person. It is recognised by all parties, including the Department of Health, that adopted children, birth parents and adoptive parents all need support. Support services should be on offer to everyone involved who can take them up as they see fit for their own individual circumstances.
The provision of—not the assessment for—adoption support services should be a statutory duty on local authorities and therefore included in the Bill. Details of the provision of adoption support services should be included on the face of the Bill, not left completely to regulations and guidance.
Adoption support is necessary and should be statutory for children who may be or are adopted, birth parents and extended birth family (including siblings), prospective adopters with whom a child is placed and, adoptive parents. We are concerned here with the support of birth families.
It is important that this support is adequately funded to ensure access and delivery to all birth families nationally. Post adoptive support for birth parents must not be given less priority than services for adopted children and adoptive parents. An additional clause should be added to Section 34(1) to read `Social Services should immediately review the situation of birth parents/guardians with a view to potentially reuniting them with their children in the event of an unsuccessful adoption.' This should also apply in the event of adoptive parents not being found—preventing also children floating in care for long periods of time.
The Review of Adoption Law further advocated a role for independent counselling and advice to be made available (para 28:5). Advice and counselling for birth parents should be from the time that adoption becomes the plan and should always be provided free of charge to families on low income. This is necessary to help them make a decision based on a full understanding of the legal, and possible psychological and emotional implications of adoption for themselves and their child and, to be in accordance with Article 21 of the Convention on the Rights of the Child: State Parties shall ensure that (...) if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary. Counselling is also necessary to prevent the distress, anger and hurt being aimed at the social worker or judge in charge of the case and this being held against the birth parents in the proceedings, possibly causing unnecessary delays. Counselling for the birth family (parents and siblings) should continue after the child has been adopted to prevent trauma leading to, or exacerbating any of: depression, suicide, addiction, unemployment, or homelessness. These are serious problems that will have a detrimental effect on the birth parents' ability to be a lifelong resource for their child through contact and into adulthood.
Families experiencing persistent poverty are not used to working with professionals. To redress the power imbalance between families and professionals it should be recognised that there is a need for additional time and extra support, specifically adapted to the vulnerability of the families' situation. The support worker should be independent, able to be objective, explain things to the birth parents and help them to present their views. Because the system is adversarial and intimidating there is a need for someone to be alongside the birth parents to help them to better express themselves. An advocate should be available in specific cases, such as where the parents have learning difficulties, literacy problems and difficulty in expressing themselves.
It must be recognised that, even when their skills are inadequate, most birth parents still deeply love their children and that they can change and improve their parenting skills. Correspondingly, agencies and support workers should continue to work with birth families post-adoption to improve their situation and parenting skills for the benefit of both their adopted children during contact visits and future children born into the birth family.
``If you are prosecuted under criminal law you are innocent until proven guilty. In care proceedings you are guilty until proven innocent.''
It is the experience of birth parents living in persistent poverty that defence evidence in contested cases is not given fair weight or sufficient resources relative to evidence from Social Services. Yet the right to a fair hearing implies a right to equality of arms. The quality of representation is often a factor of the level of funding which is permitted by the Community Legal Service Fund. Equality of arms demands that solicitors in publicly funded cases should be allowed to spend more time and money on case preparation. Proper resources must therefore be made available to birth family's lawyers so that the issues can be fairly determined. Resources applied to the determination of vital issues should not be stacked on the side of the public authorities. Under Article 6 of The European Convention on Human Rights everyone charged with a criminal offence is entitled to a fair hearing and shall be presumed innocent until proved guilty according to the law. In adoption proceedings Social Services effectively act as prosecution. Even if adoption proceedings are not a criminal prosecution, the consequences for the birth parents are extremely serious. Article 6 also provides for a fair hearing for civil obligations and therefore birth parents deserve the right to have better representation and present evidence whether or not they are contesting the adoption.
At present many Local Authority Social Service departments looking after children also act as adoption agencies and this creates a perceived conflict of interest both financially and ethically. Detailed consideration should to be given to whether Social Services should act as adoption agencies or whether alternative local and national arrangements should be made.
6. Class as Birth Heritage
``When children go to a family that provides more for them in terms of material things it makes it harder to meet or go back to the birth parents. It also makes it difficult to maintain contact and come to terms with their birth heritage.''
Section 1(5) states that in placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background. We welcome this, but would like the duty of responsibility to be extended also to the courts. We also welcome attempts to extend opportunities for adopting children to a wider spectrum of society to meet the diverse needs of children. However socio-economic class should also be recognised as an important part of birth heritage and identity. As much as possible children should be matched with adoptive parents of similar socio-economic class to their birth families. The systematic use of Family Group Conferences (as advocated by Family Rights Group7) to look for permanent solutions within the extended family and people of significance to the child would facilitate this.
7. Special Guardianship Orders
We greatly welcome the new legal option of special guardianship. We would like to see included in the Bill, a more comprehensive description of special guardianship and how this will be resourced. Given adequate contact arrangements, a special guardianship order would provide an option to fully respect the child's right to his or her origins and identity. We therefore recommend the specific inclusion of contact arrangements that are as open as possible in the Bill.
8. Omissions from the Bill
There is an overall lack of resources to fund Adoption. The £66 million announced over 3 years under Quality Protects is not anywhere near sufficient to fund the reformed adoption measures and rectify the acute shortage of qualified staff. We would like to see more on resourcing included on the face of the Bill.
It is clear that this Bill has progressed rapidly. Adoption exerts far-reaching effects on the lives of children and their families. It is of vital importance that this once-in-a-generation reform of adoption law guarantees the fulfilment of children's need and rights. This can only be achieved through the full participation of all groups who have a stake in adoption (including the least heard group—the birth parents). This requires sufficient time and willingness to be fully inclusive in the law reform process. The amount of important detail left to regulations and guidance in this Bill is of concern. The timetable for consultation on the regulations and guidance should be made public and, be of a sufficient length of time to allow for real participation.
9. Key Recommendations
In the best interests of the child, the Bill should make specific provision for contact following adoption and placement orders. In the best interests of the child, there should be a presumption of fully open adoption in all cases.
The provision of—not the assessment for—adoption support services should be a statutory duty on local authorities and therefore included in the Bill. Details of the provision of adoption support services should be included on the face of the Bill, not left completely to regulations and guidance.
Social Services should immediately review the situation of birth parents/guardians with a view to potentially reuniting them with their children in the event of an unsuccessful adoption. This should also apply in the event of adoptive parents not being found—preventing also children floating in care for long periods of time.
Provision must be made to ensure the disclosure of adopted status (of the child) before or at 18 years of age.
1 Passages in Italics are the words of birth parents and children with first hand experience of adoption.
2 BAAF Surveying Adoption, A comprehensive analysis of local authority adoptions 1998/1999.
3 In a fully supported environment, a child should be able to make a decision from around this age.
4 Fully open adoption should entail access visits and days out (unsupervised by social services but supported by other agencies where necessary); unlimited correspondence (including presents) by direct mail or through a National Contact Agency where appropriate; regular telephone contact; and exchange of photographs. Contact should not just be with birth parents but siblings, grandparents, extended family and people of significance to the child, in accordance with the child's changing wishes. In the case of a child being adopted due to sexual abuse in the birth family, the perpetrator/s should not be allowed contact but contact with the rest of the birth family should not be affected.
5 Quoted in: Working with children and `Lost' parents: Putting partnership into practice, by Judith Masson et al 1997 York Publishing.
6 Department of Health, Review of Adoption Law, HMSO, 1992.
7 Family Group Conferences: Family Decision Making; Family Rights Group.
Letter by Mrs. Margaret Suter
I am a birth mother who gave birth to a son in a ``Mother & Baby Home'' in 1959, and have since traced him and had a successful reunion, as far as that is possible after 42 years.
I would like to ask the committee to consider giving birth mothers from the 50's 60's, 70's and possibly even later, to have the right (if so desired) to trace their children (with the assistance of ``After Adoption'' or similar organization).
I know from in my own area of North Yorkshire they have ceased giving even non-identifying information (even through the organization above) to help birth mothers.
I feel that these women in my area, and many other areas, are being treated very badly, as at the time they were given no help or counselling and signed papers under pressure when they were at a very vulnerable time in their lives. We was made to believe that if we loved our children we would give them a better life. It does not only apply to birth mothers (also fathers in some cases) but also siblings, who are in some cases full brothers or sisters.
Also that, birth mums nowadays are given the option to have photos and information from adoptive parents should they so wish, as although to-day there are more options, they still may be traumatized in later life as we have been.
Also, I feel that a birth parent should sit on the committee when selecting prospective adoptive parents, as no matter how much training you have, you don't really understand unless you have lived it.
Letter from Robin Harritt
I am an adopted person aged 48 years, who has traced and met with the five surviving out of six of my natural mother's other children who were adopted between 1946 and 1967. I am also a Contact Leader for NORCAP (the National Organisation for Counselling Adoptees and Parents) which gives me an opportunity to hear the views of other adults directly affected by adoption. Though of course my views here are my own.
I gave written evidence to the Select Committee on the Adoption and Children Bill that appears in the ``Appendices to the Minutes of Evidence'' as Appendix 4.
I was disappointed by the Bill that was published in March 2001. I had hoped that the opportunity afforded to all interested parties to give evidence to a Select Committee would result in an improved Bill for all concerned. In fact I am saddened, disgusted and sickened by this latest Adoption and Children Bill. I see very little that would indicate to me, that any of the Evidence regarding the needs of adults adopted in the past and their birth relatives has been given any further consideration at all in this Bill.
In its initial response to this bill NORCAP has said:
``The Secretary of State claims this proposed legislation to be compatible with the European Convention on Human Rights. He should think again. If the legislation is passed as proposed the Secretary of State should be mindful that Adults Affected by Adoption would take the first opportunity available to prove this legislation infringes their rights under the convention. They will not be prepared to sacrifice another generation to despair and unremitting grief.''
If this Bill gets its Royal Accent without some amendment to take account of the needs of adults adopted in the past and their birth relatives. I hope to be one of the first to put it to the test in the Court, with regard to access to files on my adoption and my time in care and life before that.
In my Evidence to the Select Committee, on Clauses 47 to 49 of the previous Bill, I commented on how the detail of what access the parties to adoption would be allowed to have to their files, was to be left to secondary legislation, i.e. ``Regulations'' that were to be ``Prescribed'' by the Secretary of State for Health and other officials, without any further debate or public consultation. Clauses 47 to 49 of the March Bill have been replaced by Clauses 53 to 62 in this Bill. It is left unclear how if at all this affects people who have been adopted in the past and their right to have access to information in their adoption files.
There needs to be a Clause in the Bill that will give all adults adopted in the past a right to information from their file. They need to know the reasons for their adoption and information about their family. Only information that could be shown to be harmful to another party should be excluded. This is needed both to help adopted adults make sense of their lives and to allow them to make fully informed decisions about renewed contact with their birth families.
The current legal position on adopted people's access to their adoption file, is: Regulation 15(2) (a) of the Adoption Agencies Regulations 1983 allows an adoption agency discretion to provide access to its case records and disclose such information as it considers appropriate for the purposes of carrying out its function as an adoption agency. All to often that means that it is up to the individual social worker, which documents if any at all, will be seen by an adopted person seeking section 51 counselling.
In the case of Linda Gunn-Rosso v. Nugent Care Society and the Secretary of State for Health, earlier this year, (Neutral Citation Number: [2001] EWHC Admin 566) The Honourable Mr Justice Scott Baker said in his judgement:
``NCS ought to have looked at each individually document and asked itself whether there was any compelling reason why that document should not be disclosed. Most reasonable people would not I think feel that after half a century disclosure would be likely to impair public confidence in the integrity of the system. After all a great many public records are now disclose after thirty years.''
The document ``Adopted Adults and their Birth Siblings Draft National Adoption Standards for England and Practice Guidance'' Issued by the Department of Health for Consultation, says:
``Agencies should have policies and procedures that make it clear how they will respond to enquiries from people who have been separated from their siblings through adoption. These should reflect the judgement in R v Nugent Care Society (1) and Secretary of State for Health (2) ex parte Gunn-Rosso.''
However this needs to be set down in law, not only for those who have been separated from siblings but also for all adopted adults, and this Bill affords the ideal opportunity to do so.
It might interest the Committee to know that I have only just received some of my personal medical information from Barnardos after ten years of complaints and legal threat, I still await from Barnardos, the kind of information that Ms. Gunn-Rosso required from Nugent Care but Barnardos to judge by its actions does not apparently consider that the precedent set in R. v. Nugent Care Society et al, applies to it.
Barnardos, I have no doubt, do a great deal of good work for the children of today, however, it like most child care organisations, jealously guards its records of the past. Like all of the child care organisations it will have been told by its legal liability insurers not to divulge information that could lay it open to legal action even when such information may be of great importance to the inquirer.
Future law needs to ensure that agencies are compelled to share such information with adoptees. As I mentioned in my Evidence to the Select Committee, It has also been my experience that adoption agencies, take fostering and care records and put them inside the adoption file when an adoption has taken place. In their opinion subjecting them to the same regulations as the adoption file. They thereby avoid any obligation they may have had as a result of Article 8 of the ECHR and Gaskin v. UK(1989) 12 EHRR 36. I am still dubious about the legality of this practice and still feel that future legislation should make clear what should be done in this situation with regard to access to records of those who were in care first and then later adopted. I have a brother who was adopted at the age of 17 after being in care with Southend-on-Sea BC, and badly abused, I have been told by Essex Social Services that having been adopted he would have no right to access to information in his ``care'' file.
I am also deeply concerned about Clauses 74 to 78 inclusive, which deal with the registration of an adoption and access to the information on the Adopted Children Register and the Indexes to it, and the Adoption Contact Register.
A number of agencies and individuals submitted evidence to the Select Committee about the Registers and renewed contact between adoptees and their birth relatives and about the Adoption Contact Register. I can see no sign in this Bill, that these organisations and individuals were listened to.
I would like to urge the Committee to look again at the Evidence given to the Select Committee by the National Organisation for Counselling Adoptees and Parents (NORCAP) which gave both oral and written evidence, and that of Ms. Karen Lynn in Appendix 13 of the Minutes of Evidence, that of Ms. Helen Glase in Appendix 15
I would especially urge the Committee to look again at the Evidence given to the Select Committee by The Children's Society. To look again at its research with reunited adoptees and birth relatives, which shows that 76 percent of non-searching adopted adults had not heard of the Adoption Contact Register and that 90 percent of non-searching adopted people took up the opportunity to respond to their birth relative's requests for contact.
Removal of the Indexes to the Adopted Children Register in its present form, will lead to far more problems than it solves, unless the new computer Index gives as much information as the current paper version and allows searchers to confirm that they have found the right adoptee. It appears to me that the proposed legislation will lead to adopted people being approached by searchers who have no other way of determining if they are the person that they seek.
Members of the Committee will no doubt be aware that professional searchers and individuals have already transcribed much of the Indexes to the Adopted Children Register. Many thousands of adoption certificates have already been purchased and are held by those who have searched. One result of closing this, what the Department of Health, and the Office of National Statistics obviously see as a loophole in the law, will be to create a black market in information and copied certificates. This is particularly a danger now that most searching is being carried out on the Internet , using websites often based outside of the UK.
All of this would of course be of little concern if provision were put into place for birth relatives and adopted adults to find each other in a responsible manner. A great deal would be achieved toward that end if the 'Intermediary services for birth relatives, Practice guidelines' were to be included in the legislation and local authorities and adoption agencies were compelled to provide the services outlined therein.
I can not see that any real improvement will made to the Adoption Contact Register by this Bill. Adoption Contact Registers have been tried in many other countries they do not work for more than a very few individuals. The ONS Adoption Contact Register is far too expensive and remains under publicised.
For the government to expect some one like me to spend the amount of money that I would have had to spend, if I had relied on the Contact Register, is preposterous. I would have had to pay £15 to register my self, and £35 for each of the five adopted siblings that I sought, that is £190. In addition to which I would have had to supply the ONS with numerous certificates at a cost £6.50 each to prove my relationship when the ONS are already the holders of that information. It would have been a waste of over £300.
None of us chose to be adopted and very few birth parents had any real choice about relinquishing. Most were young women undergoing traumatic, life-changing decisions and who felt forced to relinquish their child by a judgmental society. The need to have a contact register at all is caused by the bad laws that Governments made in the past. The Adoption Contact Register should be provided free of charge to the users.
As more and more adopted adults and birth relatives take their search for each other to the Internet, so the Contact Register will become obsolete. Unfortunately this will almost certainly result in some mistakes being made, as all too often Internet search services lack the safeguards that should be provided.
I note that the opportunity to apply to the High Court using section 50(5) of the 1976 Adoption Act, will be lost by the repeal of the 1976 Act. I hope that some alternative will be introduced.
I am concerned to see that once again no proper provision is made for medical information to be exchanged after an adoption has taken place, particularly a problem with adoptions that were finalised many years ago. In my search for my siblings I have found that one of my brothers died in his early thirties, from coronary thrombosis, apparently my maternal grandfather also died from a similar disease, everyone in our family needs to know this. I am aware of the service provided by the National Health Service Central Records department at Smedly Hydro, but very few other people who might want to make use of it, have. It seems that awareness amongst the medical profession and social services departments of the NHSCR's service, is equally poor. I believe that there must be people who are dying as result of the pathetic obsession with secrecy whenever adoption is involved. Sooner the whole world know that I am adopted and who my mother was than that I be dead as a result of ignorance.
I am disappointed to see that it appears that it will still not be possible for the descendants of a deceased adopted person to inherit his/her right to trace their natural family. Again important medical information will not get passed on.
Launching the PIU report on adoption, John Hutton MP, said: ``The Government is committed to modernising adoption''. Yet this bill has a Clause that has a sickening stench of the 1950s about it. Please could the Committee ask the, Secretary of State for Health, how he has concluded that the Bill, is `compatible with the Convention rights' of the European Convention on Human Rights? An Adoption and Children Bill that would still require an adopted sixteen or seventeen year old contemplating marriage to apply to the Registrar General to obtain information as laid out in Clause 76(5) , is in my opinion an appalling Bill. A sixteen or seventeen year old should not be required to go through this process before he gains enough knowledge of his own family history to know whether a relationship that he is already in, is incestuous or not. He should grow up knowing already who his siblings , first cousins and other close family are. I hope this is not a bad omen of what we are to see in the various ``Regulations''. It is time we as nation put a total stop to the kind of closed adoption that has required this Clause to be included in past Adoption Acts. I had expected to see it disappear with the repeal of the 1976 Act along with much of what is now Schedule 2 of this Bill.
Memorandum from Michaela Dobosz
I wish to be considered as a potential oral witness, and I apologise for missing the deadline, but I found the paragraph in the news release a bit unclear.
I have been following the procedure of this Bill from the start, and some of it is very good and beneficial to children.
I myself have the experience of being adopted. It was an intercountry adoption and two years ago I was reunited with my birth father who also lives abroad. My adoption did not go very well. I was six and could still remember my natural father and the life I was made to leave behind. Although my stepfather who was Austrian was a kind man, it was a mixed race marriage and my mother felt the pressure. As a child, my needs for language support were neglected and I totally lost my cultural identity. All of this has left me deeply scarred. The reunion with my father was successful but also very painful. The man who gave me life could finally also understand why I disappeared the way I did from his life. I love him dearly.
However, I especially want to highlight my experiences as a birth mother as well and the great need for advocacy for birth mothers and migrant children, as outlined by MP Dr. Peter Brand in the House of Commons on 3/2/2000 and again on 26/3/2001.
I feel that there is not enough support for such people. In my case, I placed my daughter into voluntary short term care with foster parents asking them to be child minders. Surrey County Council saw her as being in foster care and went on to make arrangements for my daughter to be sent back to Austria for adoption when I only consented to her being placed in foster care only.
Due to a severe lack of advice in the past I had to place my daughter into foster care abroad. This happened in December 1983, and Surrey County Council told me to keep in touch with the Austrian Embassy at the time, which I did, but nothing ever came of it. I continued to approach them, and about a year ago I was suddenly presented with a release form dated October 1984.
They also made plans to place her into adoption without my knowledge, neglecting their duties to me, while discussing plans for adoption without my knowledge. There was an enquiry from Austria to Surrey about my whereabouts, when at the time of her departure in December 1983, they were able to keep in touch with me, and knew where I was based.
But they went ahead without me, although the authority was well aware that I was requesting a short term fostering arrangement for my daughter only, and the officers from Surrey County Council sent her back to Austria without respecting my wishes and without taking the responsibility for ensuring a mother's wishes were represented to the Austrian authorities such that the Austrian authorities proceeded to find an adoptive placement.
It has since emerged that the events leading up to my daughter's adoption were unconventional eg from foster care into adoption and nothing in between except a ``phonecall''. There are records saying that I did not agree to an adoption but it went ahead anyway.
This happened because nobody listened, or at least the right people did not listen. For the past two years International Social Services (who are badly underfunded) have been helping me to get some answers via their colleagues in Geneva. My experiences with them have been very good, but what is frustrating is that the Austrian source is not providing us with the answers we seek. There is lots more to say, but of course time is precious and you are very busy. I hope that this will do for now.
As you can see I have matters relating to the legislation and it would be beneficial if I could be considered as an oral witness.
Letter from Miss Tammy Smith-Garratt
I am a 21 year old woman who lost her brother to adoption many years ago. I feel that if the bill goes ahead as it is, that I will never find him.
There are some serious flaws in this bill, which need to be rectified without delay and before the next reading. This bill will bar all routes in my search for my brother. I do not see why I should be separated from him, as I had no say in the matter of his adoption. My brother and I never signed any agreement to be apart so why as adults are we forced to do so?
The Adoption Register (Clause 77)
Without a doubt, this is the worst run contact register in the world - bar none! It is so secret that even my Citizens Advice Bureau does not know of its existence. If a government agency does not know about it, how is anyone else supposed to know?
It is also the most expensive register I have ever come across. Most registers in other countries are free. The cost puts many off joining this register. I gather there are only about 600 adoptees on there so it seems that my brother would not be there as he is unlikely to know of its existence.
This register is useless if my brother is dead - who will tell me if he is? How would I find this out?
As for my mother signing up on the register, it really is too much. Why is it £15 for adoptees but £50 for birth family? It is outrageous.
Calling this a ``Contact'' register is a misnomer - it should really be called a ``Non-Contact'' register especially from the birth families' point of view. My mother has been told that if she registers and my brother does as well, then he will get all the information on her. However, my mother will not get any information whatsoever - not even to be told that contact was made.
Even if my brother gives his permission to exchange details, he will be prevented from doing so on this register. They will go against his wishes and refuse. Why? Is it not against European Human Rights to stop two consenting adults from meeting? What happened to our Freedom of Association? This cannot be right.
What on earth is the £50 for if my mother is told nothing? The cost to the birth family is discrimination that is clearly designed to put off birth families registering and perpetuates the myth that my mother does not want to be found. This myth upsets her greatly yet it keeps getting shoved down her throat and my throat. This myth could be one of the things that is making my search so difficult as my brother may have been fed the same rubbish too!
NO other passive register works this way. All other passive registers in other countries inform both parties of contact and then both parties exchange details. That is how they are supposed to work! Shame on the person who designed it - they show no compassion and they must have a blatant disregard for human rights. I wonder what the European Court of Humans Rights would say about this one?
It is also a misnomer about records being open in Britain, they will not be, not that they ever have been. When this bill goes through, Britain will be taking a giant step backwards.
Records will be virtually closed by this bill. My family's rights are being taken away.
In Clause 3, there is nothing there to protect anyone's right to a search. In fact, agencies like Barnardos have said they will not do searches for adoptees or birth family now or after the bill unless the law makes them. As it stands now and in the future with the bill, the social worker will have the final say in searching - that is if she feels like it. If she gets the contact wrong, there is no right of appeal. There is no legal obligation to do the search under the bill.
If the Adoption Register does not work and the social worker will not look for me, how will I find my brother?
There is only one answer to this—a truly open record system as run by Australia. It has been running for over 10 years, about the same length of time as our contact register, and there have been no problems with it whatsoever. Their system is truly democratic and meets the needs of all their people involved in adoption.
It makes Britain's system look like something out of the Dark Ages. As far as open records go, Britain is already very far behind the times. If this Bill goes through without this amendment, Britain will be regarded as Stone Age by the rest of the World, Denying its people the right to family reunion, which the European Union is planning to exclaim as a fundamental Human right.
This is how the truly ``open record'' system works.
Adoptees are allowed both the original birth certificate and adoption order in full.
Birth parents are allowed both the original birth certificate and adoption order in full.
This would enable my mother and I to find my brother.
There is NOTHING in British law to help me otherwise - especially in the Bill as it now stands.
In Australia, it has been found that 96% of both adoptees and birth families want contact.
For the 4% that do not want contact, all that is needed is a ``No Contact'' veto placed in their file. This works very well. In fact, there has NEVER been a violation of this anywhere in the world where this system has operated. Australia has been using this system for over 10 years without any problems at all. It has been 100% successful in keeping confidentiality of those who don't wish to be found. Not many systems can claim that. Not even the British system.
For old adoptions, if the birthmother signed a no-contact form, these can easily be transferred over to the records.
However, it is an urban myth that all birthmothers want confidentiality. Most did not sign anything to that effect. My mother does not want it. Her many birthmother friends did not want it and did not sign anything to that effect either. In fact, I am starting to wonder if any of these ``confidentiality'' agreements even exist. My mother and I believe that these rumours were put out by social workers to stop adoptees looking. We would really like to see some proof of these documents by the government as to their existence as they continue to use this as an excuse to block our records.
It is not fair to split up families just on rumour. It is not right to keep brother and sister apart for no reason. My mother wants to see him. My brother might believe that false rumour about all records being open in Britain. If he believes this false rumour like I did, then he may well be waiting for my mother to find him. Many male adoptees do that. I have a Canadian friend who has recently found her son. Although he was not searching, he was more than happy to be found by both his birthparents. He was flattered by the fact that they had taken the time and trouble to do that. My Canadian friend has never been happier now that she has all of her children back in her life and her son has found his missing brothers and sisters.
Open records have reunited TENS OF THOUSANDS.
Why should my mother and I be denied this happiness?
Why do you stand in the way of true democracy and deny MILLIONS of people the right to their family and heritage?
OPEN RECORDS NOW! There are NO alternatives for people like me.
Letter from Maureen Dodson
I am the birth mother of a 39 years old son, who was adopted in 1962. I am one of the lucky ones as he was adopted through an enlightened adoption agency, The Children's Society, and through their good work I have had a reunion and am now in regular contact with him. I am writing to you in support of other birth relatives who do not have such enlightened adoption agencies or social workers and, therefore, those agencies do not offer intermediary services to birth relatives.
There is no provision for these services in the Adoption and Children Bill so this is my urgent request to try and change the law so that they can obtain knowledge about their children. Some birth relatives are now elderly and this will be the last chance for them to obtain information about their now adult children. Since 1976 an adopted person can by law obtain information about their birth family, but there is no reciprocal law for birth relatives. In August 2000 The Department of Health published Intermediary Services for Birth Relatives—Practice Guidelines, it would make sense for these guidelines to be included in this bill.
The law must be changed in line with other Commonwealth countries before it is too late. Please consider this matter for inclusion in the bill.
Memorandum from Cathy Henderson
I am a birthmother (natural mother) who has had the good fortune to find my son. My son was happy to be found by me and his birthfather. It was the happiest day of my life. I lost my son to a closed adoption 23 years ago back in the 1970's in Canada. I have lived in England for over 20 years.
I feel that I can offer a wealth of information and experience on this subject, especially from an international perspective.
Most of Bill 34 is reasonable, especially calling birthparents ``natural'' parents—that is something that I do appreciate.
However, there are some serious flaws in this bill that need to be amended to make it a truly socially enlightened law, especially for adult adoptees and birth relatives. In my opinion, this bill is not ready to go through as it is. I have listed the Clauses and the changes that are needed in each one. This is followed by a list of items that have not been included in this bill but ought to be included.
Clauses and Changes
It is not clear what rights adult adoptees and natural parents have to the ``facilities'' or what those facilities are that the support services offer. Indeed the bill ought to define what the minimum ``facilities'' are and how they should be delivered. There should be a statutory right for an intermediary search service available to both adoptees and birth relatives. There is no mention of there being any such legal obligation within the bill. At the moment it is at the discretion of the social worker at the adoption agency. It is also highly inequitable that there is no right of appeal. Agencies like Barnardo's are already refusing to do searches for anyone and say they won't unless they are made to do so by law. There have been too many examples of well intentioned people playing God with other peoples lives; to use an old adage ``who watches the watchers?''
If searching is at the discretion of the social worker, then the right for the adoptee to have their original birth certificate will also at the discretion of the social worker. It appears that the social worker does not have to give a reason for the refusal do a search for either adoptee or birth relatives. Without the right of appeal, there is no way forward for any party. The result of this is that the adoptee can be denied their original birth certificate if the social worker refuses to search for the other parties to get their permission to release it. Can it be seen as fair that that an adoptee can be denied their original birth certificate on the whim of a social worker without appeal or explanation!
This would seem to be a case of introducing closed records by the back door. I find it hard to believe that this is one of the purposes of the bill - this is the result of a piecemeal approach to the contents without understanding the wider implications.
The introduction of such a system would constitute the removal of one of the basic human rights, i.e. to know more about ourselves including all medical information. Although the bill says that medical information will be passed on, there are already cases where this is not happening.
The system as proposed in the bill is the one currently being used in Ontario, Canada which has resulted in a GREAT FAILURE! In spite of all good intentions and assurances, the result is that all relevant bodies are now involved in serious litigation arising from their failure to act in the manner expected.
It has failed so badly that Ontario is now opting for the Open Records system as operated by Australia. The Australian system will be discussed in detail later.
If this approach is introduced, how can anyone be sure that medical information will be passed on? There appears to be no checks or balances designed to ensure that the necessary information is passed on in an accurate or timely manner. How is a birth relative going to pass information on to the adoptee and vice versa? Medical information is always constantly changing in families as the adoptee grows up and even as an adult. Therefore any system to address this requirement, must take this into account. Surely it can not be at the discretion of an individual who is not medically trained to decide what should be passed on and what is ``not relevant''.
It is unclear within the bill what information is deemed to be ``prescribed''? Are medically unqualified social workers going to have to make decisions as to what is ``prescribed'' or medical information and therefore needs to be passed on immediately (prescribed information) or left on file as non-urgent? If this is the case, then you are on the road to disaster!
An example of what can happen is available in Ontario, Canada. There is a case where a social worker refused to do a search for a birthmother. Social workers are NOT doctors! This social worker decided that the medical information was not important enough or urgent enough to pass on to the adoptee. It was put into the adoptee's file. The adoptee had three children and then started feeling ill. It took doctors a long time to figure out what was wrong. It turns out that she has polycystic kidney disease. It is hereditary and now all three of her children have it. It means that ALL of them will need kidney transplants. The adoptee would NEVER have had children if she had known about this. She is now in the process of suing the Ontario government for the equivalent of £10,000,000
Her name is Kariann Ford. Her story is in the Canadian media and on Canadian TV in a show called ``Dying to Know'' in a series of programmes called ``Fifth Estate''. I have attached her evidence given to the Standing Committee for the Open Adoption Records Bill in Toronto. It is probable that the publicity now surrounding her case will bring to light other examples.
I use this to make you aware that as it stands the bill has very serious flaws, which if implemented will lead to litigation being taken up against all of the relevant bodies and individuals.
Ontario used the same system as the one proposed in this bill and it FAILED! Ontario now is going through a long process which will result in opening of ALL records in order to prevent this from ever happening again. Please learn from other's mistakes and do not let history repeat itself!
CLAUSE 19 - ADVANCE CONSENT TO ADOPTION
The person giving the child up for adoption should automatically be told of any application for an adoption order. This should a statutory right. They should not have to ask. Without being informed properly the person may not know that they will lose the right to withdraw consent. It must be given in writing to avoid the adoption being contested at a later date.
CLAUSE 47
Unmarried couples are not allowed to adopt thus taking away a large pool of carers from the system. It is discrimination and this would certainly be challenged at some time in the future. One can not imagine why such a group would be deliberately excluded.
CLAUSE 50—PARENTAL CONSENT.
Parents should be given information in writing relating to all alternatives to adoption that are available (such as special guardianship) otherwise the consent cannot be considered informed. Parents should also be made aware of the long term psychological effects, especially if the adoption is a closed adoption. Indications of these should be added to any consent form. Consent must also be made without duress and the parent informed of a) when they can withdraw their consent and b) made aware of when exactly they lose that right. Again, this also should be in writing.
CLAUSE 52, CLAUSE 64
I suggest most strongly that you remove the word ``legitimised'' - it is derogatory and unnecessary. This whole concept brings the bill into ridicule. When cases come before the courts, this part of the bill as it stands will be derided.
How can it be acceptable and sane that a single person is supposed to pretend they are married to a non-existent person in order to ``legitimise'' someone else?
50% of children today have unmarried parents - the parents simply double-barrel the name and if they do get married, they just leave the name as it is. I don't know of any unmarried natural parents that adopt their own children just to ``legitimise'' them. It is an out-of-date concept that smacks of property ownership instead of accepting the person for who they are.
This is also another block on unmarried people adopting - The Legitimacy Act of 1976.
I suggest that repealing the Legitimacy Act of 1976 would be beneficial to all—most countries including China do not use this term anymore. In China, children over 10 can choose the surname of the adoptive mother, adoptive father (they don't need to be married) the birthmother or the birthfather. For children under 10, all parties negotiate a surname (usually double-barrelled to reflect dual heredity) - much more democratic and dignified.
CLAUSE 53
There is no promise of keeping records indefinitely. This is important in view of the fact that records have been destroyed in the past. Therefore there should be a statutory obligation to hold the records for generations.
CLAUSE 54 (4)
Before the adoptee is allowed to have an original birth certificate, the social worker must contact the birthparents to have their permission to release it. There is no explanation as to what happens if the birthparents cannot be found.
What happens if only one parent is found? Does that mean that adoptee is allowed the original birth certificate by default? What happens if when found one birth parent agrees and one disagrees? Again the results of these scenarios are not made very clear. It not hard to imagine the various options and a clear result explained for each.
CLAUSE 64 AND 68
I suggest most strongly that you remove the phrase ``as if born to''—adoptees are still not allowed titles, so this phrase is a contradiction in terms. It is also very upsetting for birthmothers (only the birthmother gives birth to the adoptee—no one else!). In simple terms you can not be ``as if born to'', you are ``born of someone''!
Again, this law attracts ridicule when a single person is supposed to pretend they are married to a non-existent person in order to be seen as the parent of an adoptee. Surely a better definition could have been found!
All that is needed is that the child is seen as the son/daughter of the adopter. Laws should be based on fact, not fiction!
CLAUSE 77 - THE ADOPTION CONTACT REGISTER
This register is the worst one in the world that I have ever come across for adoptees and birthfamilies—bar none. It must be branded as a dismal failure. It is not run as a proper passive register. ALL OTHER passive registers that I have seen are run in a more humane and democratic manner.
This is how a well run passive register should work. They hold the information of both parties. When both parties register, BOTH parties are notified that contact has been made. If both parties consent to a mutual exchange of information, then BOTH parties get information on each other. Each party can pick and choose what information goes to the other party. This is the democratic and logical way of running a passive register.
Why isn't the UK register run in this manner? A simple review of the UK register shows the following:
—Many Citizens Advice Bureaus are unaware of its existence. If a government agency does not know about it, how on earth is anyone else going to know?
—It is very expensive to register on it—£15 for adoptees and £50 for birthfamily
—Very few people know about its existence (only 600 adoptees registered)
—It fails if one of the parties is dead
—When an adoptee and birthfamily have a match on the register, ONLY the adoptee is allowed any information from it. The birthfamily are not allowed any information AT ALL - not even to be told that contact has been made. What on earth is the £50 for if birthfamily is told NOTHING!
—To me, this is blatant discrimination and thus could be seen to contravene the European Human rights code by not allowing freedom of association when BOTH parties give permission for identifying information to be given to each other.
—It is not flagged for any search engine on the Internet thus making it almost impossible to find by computer.
—If you do find the site, the home page does not tell you which page to go to for the register and its details—again very difficult to find.
—No register for ``foundlings'' (abandoned babies)
Given the above, there is obvious discrimination against birthfamilies on this register that I have never seen anywhere else on the planet. This register's ability to remain hidden would make it suitable for MI 5 to keep its secrets there and no one would find them!
I strongly recommend that you completely revise your approach to the Register. An overhauled passive register which is equitable to all will be easier, cheaper and simpler to operate. There would also be a reduced risk of litigation.
OTHER ITEMS
Things that are not included in this Bill but should be:
Restore the right to go to the High Court as stated in the Adoption Act 1976 Clause 50 (5). This clause provides for applications to be made to the High Court for an order requiring the Registrar General to disclose the information which links an entry in the index of births with an entry in the index of adoptions. NORCAP was able to re-unite elderly triplets using this but this option will be taken away under this new bill.
Option of Joint Custody—there is no mention of this as an alternative to adoption. In this instance, both the natural and adoptive parents share the costs and custodianship equally. This is an option practised in Canada.
There should be an Order of Procedure page which clarifies what orders are used at what point in time to make the adoption procedure clearer to all concerned.
Introduce ``Open Record'' System as practised by Australia. This system which is in place in Australia and many other places works very well indeed. It is more efficient, user friendly, cost effective, it is very democratic and it affords better confidentiality measures for those who want it. Many countries in the world have seen how good it is and are now changing over to this system world-wide. An added bonus is that the early detection of health problems is passed on immediately and directly. There is also a reduction of treatment for depression which in turn has reduced the health services costs dramatically. There have never been any lawsuits with this system either. It also accommodates the fact that men and women search differently. There is a clear gender difference in attitude when it comes to searches. Over 80% of adoptees searching are women. Over 92% of birthparents searching are women. Men, on the other hand, tend to wait to be found and are very flattered and happy when they are found. In fact, many male adoptees see searching as the birthmothers job, not theirs—``if she loves me, she'll find me'' is the general attitude of many male adoptees.
This system now operates in New Zealand, Australia, most of Canada (Newfoundland, Nunavut, British Columbia already have open records and Ontario is about to start its Third Reading of their bill to open all adoption records with the rest of the provinces in the process of introducing legislation to do the same), and South Africa. Many States in the USA are now considering this system. Ireland is bringing in legislation based on the Australian system as well.
This is how it works.
Whilst setting up the system, adoptees and natural parents people are given a year in which to register their No-Contact vetoes. During the period whilst the system is being set up, intermediaries are used to get permission to release information. Files are flagged for the vetoes under all names (ie. Maiden name, married name, adopted name, aliases, etc.) An index is kept for the vetoes.
When the year is up, then the system is run this way;
Firstly a request for information is received and a check for ``No-Contact'' veto is made.
No-Contact vetoes are placed in files of those who wish to remain hidden. The right of No-Contact vetoes is given to both adoptees and birthparents. Here are 2 variations of the No-Contact Veto and how they work.
In 1985, New Zealand introduced an Information Veto which allowed a birth parent or adoptee to veto the release of identifying information to the other party for a period of 10 years. When all these vetoes expired, NONE of them were renewed.
In 1990, New South Wales (Australia) developed a time-limited, signed, explanatory No-Contact notice system. The N.S.W. no-contact notice recipient could not be refused his or her birth registration data, but must not contact the other party while the veto remained in effect. When an explanation was provided by the person requesting no-contact, the recipient was willing to comply.
If a ``No-Contact'' veto has been placed then in the majority of systems, the requestor is informed and that is the end of it (in some countries the information is provided, but a promise of no-contact is extracted with the threat of severe penalties for non-compliance).
If the veto does not exist then the adoptees are allowed both the original birth certificate and adoption order in full. In the case of birth parents they are allowed both the original birth certificate and adoption order in full.
Medical information is still kept by the adoption agencies—it is still their job to pass on ALL medical information—however trivial the social worker might think it is. (Remember—untrained workers are not doctors and therefore cannot make an informed decision medically on what is trivial and what is not.)
There have been tens of thousands of successful reunions that would not have occurred otherwise if it was not for the Australian system. Research has shown that active searches are 85% successful in finding people compared with a lowly 2% of passive registers.
For those who are worried about the outcomes of reunions—do not be. Research has also shown that 93% of reunions have successful and positive outcomes! Even for the 7% that do not go so well, the vast majority are still glad they searched as the reunion still gave them information that they would not otherwise have. All reunions help give adoptees and birthparents closure by answering many questions they may have wondered about for years.
In British Columbia, Canada they have been operating this system since 1996 and it has been very successful. Here are some important statistics from them.
96% of both adult adoptees and birthparents want contact!
For the 4% that do not want contact, all that is needed is a ``No Contact'' veto placed in their file. This works very well. In fact, there has NEVER been a violation of this anywhere in the world where this system has operated. Australia has been using this system for over 10 years without any problems whatsoever.
In terms of manpower and money, it makes more sense to concentrate on the 4% who want confidentiality than to spend all those hours searching for the 96% that do not want it. It saves money and time to let the 96% do the work that is now being done by social workers, administration staff, searchers, etc.
The state saves money because adoptees and birthfamilies do the searching which releases money and manpower to social services to deal with other issues. 93% of contact by adoptee/birthfamily/NORCAP trained intermediary are successful compared with the 73% success rate of social worker contact.
Confidentiality is better maintained within an open system. In 20% of contacts done by social workers at adoption agencies, confidentiality is breached. Social workers approach an inappropriate party thereby breaking the very confidentiality they are supposed to protect.
Contact by social workers also fails simply because they are social workers. For many birthmothers, the last time they saw a social worker was when they lost their child to adoption. Social workers are the last people many birthmothers want to see or hear from. The open system would remove the negative reaction to social workers that many birthmothers feel towards them.
It has been shown that in 90% of cases where an attempted contact has been mis-handled (usually by a social worker) that when these birthmothers are re-contacted either directly by the adoptee or by a trained intermediary from NORCAP, the situations are resolved to the satisfaction of everybody.
The open record system would completely remove this problem of inept social workers. NORCAP have specially trained intermediaries who KNOW how to handle the situation. The ``No Contact'' veto means just that—no contact from anyone, not even a clumsy social worker to ask an inappropriate party to break that contact veto. No surprise phone calls for those who have put this veto in. There are heavy penalties in place for any one who violates it—but as I have said before, there has never been a violation of this in the whole world where this operates.
Some people are worried about stalkers. Let us put this into perspective. We do not ban telephone books just because we might get a nuisance call. We do not ban driving when people are maimed and killed on our roads everyday. Our freedoms come with risks but it is our freedoms that make life worth living. When you compare the freedom of driving, having a listed number or even the Internet with the freedom of open records, the risk from open records is miniscule. The fact is that 70% of adoptees already know their birthmother's name, yet one never hears of these people stalking. The cases are so rare that many birthmothers still believe they have confidentiality.
In fact, the open record system saves lives. Families can find each other quickly and pass on urgent and complete medical histories. Open records would bypass the uncertainty of the medically unqualified social worker. Families could be certain that the adoptee or birth relative gets the information—all of it unabridged.
This system is in accordance with the recommendation of the judgement of His Honour, Mr. Justice Sumner who wrote that
``there is an urgent need to review the legislation that impedes birth relative's opportunities for search and reunion.''
Bearing this in mind, if this Bill goes through without the above recommended changes, it WILL impede those opportunities.
PROBLEMS WITH THE BILL AND CONSEQUENCES
Having been in discussion with the Bill Support Officer at the Department of Health, it has become clear to me that one of the key premises of the bill is as he described it ``to provide Birth Mothers with Confidentiality'' in the case of past adoptions. This basic premise is fundamentally flawed and can not be allowed to progress without being challenged.
If one of the main intentions of this bill was to protect the confidentiality of birthmothers then the proposed bill will FAIL to do so for the following reasons;
ALL adoption orders have the name of the birthmother on them! They have done since 1927! (Please see enclosed copy of adoption order) The ONLY exceptions are foundlings (no name there at all) or re-adoptions.
70% of adoptees have their adoption orders—where is the confidentiality?
The basic information required to initiate a search is available. This being freely available by-passes the agencies put in place to police the system!
Birthmothers were misled about confidentiality
Some birthmothers claim that they were promised confidentiality. I am afraid that they were misled by various people possibly their social worker. There is NO WAY that anybody should have made such a promise—a) they did not have the legal right to do so and b) as indicated, the information had already been disclosed! Any worker who did issue such a promise could be sued for misleading the birthmother.
The argument for restricting records based on a concept of confidentiality for the birthmother is an invalid one. There is not one shred of evidence that there was ever a written contract for confidentiality for the birthmother and this bill will not change the situation. How could it?
This proposed bill will not protect the confidentiality of birthmothers. To say that it will shall open the door to lawsuits.
SUMMARY
Despite the assurances from Mr. Secretary Milburn, this bill would appear to contravene the European Convention of Human Rights and is therefore likely to be challenged in the courts. There is rampant discrimination everywhere in this bill which will also be challenged on a regular basis.
There is discrimination on the Adoption Contact Register against birth relatives.
There is discrimination against unmarried couples adopting.
There is discrimination against birthparents being allowed their personal information on documents. Adoptees are allowed to apply for their original birth certificate which has birthparent information on it. However, there is no reciprocal arrangement for birth parents. The personal information of birthparents is on the adoption order, yet even with permission from all parties, they are denied the right to have this document.
The Bill will reduce the openness of Adoption records. There is the misconception that records are open in Britain. Whilst better than many countries, they are not fully open. This Bill will reduce the information availability and will be regarded as a retrograde step if passed as is.
There are no ``fool-proof'' arrangements for mutual exchange of pass medical information between adoptee and birth families.
Other faults in the bill include:
The focusing of discretionary powers (without recourse) into already over-worked Social Services teams.
The lack of any proper appeals procedures.
There is a huge potential for breaches of confidentiality to occur within the proposed system.
The high costs involved in preventing what are in 96% of cases desired reunions.
The huge amount of manpower hours needed to operate and police something that is required for only 4% of the people involved.
The proposed ``confidentiality'' for previous adoptions can not be guaranteed and will therefore be prone to litigation.
The right to apply to the High Court has been removed.
The removal of basic human rights to personal documents or the capability to have family reunions.
For the last two items, the European Human Rights code is being improved to include these as FUNDAMENTAL HUMAN RIGHTS! This will mean more lawsuits in the future under this bill.
It has been shown that the system being proposed by this bill has failed with spectacular results in other places—notably Ontario, Canada. The lawsuits being launched there are costing Ontario MILLIONS of dollars! Do you want to follow suit?!!
THE SOLUTION
There really is only one solution to the proposed mess.
It is of grave importance that the lessons learnt in elsewhere in the world are put into practise in this country. History does not need to repeat itself. Please implement the Australian Open Records System. It has a proven 10 year track record. Why progress with a Bill that could be seen very soon as a retrograde piece of legislation that was ill-conceived and poorly executed.
The Australian system is the only system that has a 100% success rate in terms of confidentiality that some women seek and at the same time, it gives the majority (96%) the right to search for their loved ones in the knowledge that their loved ones are expecting them.
It is democratic, efficient, it has reunited TENS OF THOUSANDS, there have been no lawsuits, it has reduced the health costs of all concerned and it is cheaper to run then the proposed system set out in the proposed bill.
Please help reunite families. Please let others find the joy I have found in having all my children back in my life. No one should be denied that.
Please amend this bill to include the Australian Open Record System. Don't let Britain fall back into the dark ages with a flawed bill based on myths, half-truths and poorly specified proposals that missed a glorious opportunity to move the UK back to the forefront of civilised society.
Many thanks for listening.
Cathy Henderson—Birthmother to Alastair
Son happy to be found by both birthparents 16 May 2001
E-mail: Cathy—Henderson@sharnbrook.demon.co.uk
References
Adoptees UKIE
Adoption.about.com
Adoption Disclosure Register, Toronto, Canada
Adoptionireland.com
Amfor - Statistics of Adoption - 2000 Edition
Bastard Nation
Bill 34 and Explanatory Notes
Bill Support Officer, Department of Health
CCBM (The Canadian Council of Birth Mothers)
Canadopt
Citizens Advice Bureau
European Union Report on Human Rights - 1999
Fifth Estate (Canadian Broadcasting Corporation, Toronto, Canada)
Government of British Columbia
Government of Ontario
His Honour, Mr. Justice Sumner
Kariann Ford
NORCAP
Origins (New South Wales, Australia)
Parent Finders of Canada
Postadoption.info
Professor H. David Kirk (Canada)
Standing Committee for Open Adoption Records in Ontario Bill 77
—Nov. 5, Nov.7 2001 Toronto, Canada
Attachments
Kariann Ford's Evidence to the Standing Committee for Open Adoption Records
Toronto, Ontario, Canada—Bill 77—5 November 2001—adoptee diagnosed with PKD whose medical information was with-held by the adoption agency on the grounds it was not serious enough to pass on to the adoptee. This judgement was made by a social worker.
Copy of a UK adoption order with birthmother name on it. This was found on the Internet where it had been posted as an attempt at a reunion (see confidentiality argument earlier!)
Memorandum from the Children's Rights Alliance for England
The Children's Rights Alliance for England (CRAE) is a human rights organisation for children and young people. With our 170+ member organisations, we promote the fullest implementation of the UN Convention on the Rights of the Child, which the UK Government ratified in December 1991. We carry out public policy advocacy; provide training to service providers and to children and young people; disseminate up-to-date information on all aspects of children's human rights; and carry out projects of national significance.
CRAE exists to improve the lives and status of all children (birth to 18 years) but we have a specific focus on children living in poverty.
We have identified several opportunities where the Adoption and Children Bill could be made more child-centred. However, at this stage we wish to focus on four specific areas where children's human rights under the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child (UNCRC) are not sufficiently addressed:
1. Children's right to know they are adopted
2. Access to information about childhood and early development
3. Children's consent to or veto of adoption
4. Children's right to contact with their parents and siblings
CHILDREN'S RIGHT TO KNOW THEY ARE ADOPTED
There is much debate about aspects of the Bill which could deny adult adoptees access to crucial information about their birth parents and early life history. However, while incredibly important, this leapfrogs another fundamental principle - that children should have the right to know they are adopted.
Although everyone, including the Government, agrees that children should have this human right, under the Bill adoptive parents continue to have considerable discretion about when (if ever) they tell children about their legal status. This is not a problem for older children, including those from the looked after system, who should have been actively involved in the adoption process. However, for children adopted as babies or in very early childhood, there is currently no legal duty on the part of adoptive parents to inform them of their adoptive status.
ACCESS TO INFORMATION ABOUT CHILDHOOD AND EARLY DEVELOPMENT
The National Adoption Standards for England, published in August 2001, state that
``children are entitled to information provided by their birth families, which will be kept safe both by agencies and adopters. It will be provided to adopted children, or adults, at a time and in a manner that reflects their age and understanding, as well as the nature of the information concerned''.
While the Standards will play a huge role in promoting good practice, they do not safeguard children's human right to information under Article 8 of the ECHR.
Article 8 grants children and adults the right to private and family life. This is now part of domestic law, since the Human Rights Act 1998 came into force last year. The most relevant human rights case is Gaskin v UK (2/1998/146/200).
In 1983 Graham Gaskin, who was then twenty-four years old, lodged a complaint with the European Commission on Human Rights, concerning the refusal of Liverpool City Council to produce files relating to his period in care between 1960 and 1974.
Gaskin alleged that he had been ill-treated in care and his case files were required as corroboration in proceedings against the local authority. The case reached the High Court where it was judged not to be in the public interest to make the files available; Gaskin's subsequent appeal to the Court of Appeal also failed.
The European Commission, and subsequently the European Court of Human Rights, reached a different conclusion and upheld Gaskin's complaint that refusing him access to such information was in breach of Article 8 of the ECHR:
``In the Court's opinion, persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons...The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent.''
The Court noted that to ensure proportionality there would need to be
``an independent authority''
that
``finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent''.
All new legislation must now comply with the provisions of the ECHR. We are strongly of the view that Clause 58, relating to the non-disclosure of information, is in breach of Article 8. Further, we are concerned that the Bill does nothing to advance the rights of children with sufficient understanding to obtain information about their lives and their birth families. This was one of the most important things identified by the children and young people who participated in BAAF's consultation on the National Adoption Standards.
CHILDREN'S CONSENT TO OR VETO OF ADOPTION
Presently, the Bill only refers to parents and guardians giving consent to adoption. While it is seen as good practice to involve children in the adoption process (the welfare checklist in Clause 1 requires courts to consider the child's ascertainable wishes and feelings), this does not go far enough.
Adoption has a huge impact on many people's lives but ultimately it is the individual child's life and future that is at the centre. The BAAF consultation on adoption found that children and young people want the ``right to say no''.
In the USA, 47 States and the District of Columbia require that older children give consent to their adoption. Twenty-three set the age of consent at 14 years; 18 at 12 years; and seven States require consent from the age of ten. In some states the requirement can be dispensed with if the child lacks mental capacity, or if the court finds it in the child's best interests to dispense with consent. The Children (Scotland) Act 1995 states that from the age of 12 years children shall be presumed to be of sufficient age and maturity to form a view.
Article 12 of the UNCRC grants children who are able to form a view the right to express and have those views taken into account in all matters affecting them. There is no minimum age requirement. The UK Government ratified the UNCRC in December 1991.
Giving consents is perhaps a harder emotional process for children with sufficient understanding than having the legal right to veto an adoption. The right to veto does not require a child to officially sever its (legal) ties with its birth parents. A ``right to say no'', as put forward by the children and young people in the BAAF consultation, may therefore on balance be preferable to giving consent. Of course, this does not in any way lessen the duty on adoption agencies and the courts to seek and take into account children's views.
Refusal to consent to adoption or saying no to an adoption never need mean that the child's long-term placement is insecure, or that the child cannot at some later date change its mind.
CRAE is concerned that the Bill does not raise the need for additional safeguards for birth parents who themselves are children, when consenting to adoption. Further, there is the added dimension of ascertaining and taking into account the views of adoptive parents' own children; an issue that is not at all mentioned in the Bill.
CHILDREN'S RIGHT TO CONTACT WITH THEIR PARENTS AND SIBLINGS
Article 9 of the UNCRC grants children who are separated from their parents the right to
``maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests''.
Clause 25(1) states that previous contact arrangements under the Children Act 1989 Act will cease to have effect once an adoption agency has been authorised to place a child for adoption. This does not make sense from a childcare point of view. What has materially changed in the relationships between the child and those it has contact with? Surely contact arrangements should only change if they are shown to not be in the child's best interests.
Accordingly, CRAE believes that the child's right to contact with birth family (and significant others) could be strengthened by amending Clause 25(1):
Where an application is made to the court for any provision for contact under this section, there shall be a presumption that all prior contact arrangements be resumed, unless it is not in the child's best interests
The Bill does not give any importance to sibling relationships. A major step forward would be to amend Clause 1(8) so that
``references to a relative, in relation to a child, include the child's mother and father and siblings''.
Clause 3 could also include siblings of adopted children in the list of those the adoption service must have regard to the needs of.
Contact: Carolyne Willow, Joint National Co-ordinator, CRAE
Memorandum from Una Cottingham
RESTRICTION ON ACCESS TO BIRTH RECORDS FOR ADOPTED ADULTS (CLAUSES 53/62 AND 76)
I am indebted to Deborah Cullen of BAAF for drawing attention to this potentially damaging, retrograde and frankly inhuman provision.
Further, in this, the 21st century, when infant adoptions form only a very small percentage of adoptions at all, it is hard to see for which parents a clause removing the right of disclosure of birth information to adoptees may be intended.
Where children are old enough to have memories of their birth family members it is hard to see how the prohibition might be applied and, too, today's adopters, well aware of the needs of their adopted children, would surely strongly repudiate such a clause.
It has always been the right of a birth parent to refuse direct or even indirect contact when this is proposed. Most birth parents are very responsible when they realise the value of, for instance, family medical history when a child is relinquished for adoption. To encourage secrecy is to deny the child subject parity with other adoptees.
Consider a very few of the potential injustices this divisive step might lead to:
1. In an adoptive family there are a number of siblings-not birth related to one another. One only is denied eventual access to birth information
2. A child has been placed by an agency with a view to adoption. There are problems: the child does not settle: does not ``fit'' the family: the agency has to remove the child before the final court hearing for a viable reason. So the child is not adopted. Yet the parent has vetoed birth information. What if the child is never adopted? What is the status?
3. Both parents have parental responsibility. One parent demands the prohibition and the other opposes this. What then?
Should such a divisive and heartless prohibition become law what of ``Life story work''? Well-prepared children benefit from the excellent work so often done to give them a basis for family history and I have seen countless examples of books treasured for many years and used as a basis for recording the new life to follow on from the old. Children need continuity, respect and recognition. Are parents to be told how disadvantaged their child may become if they exercise this punitive ``right''''? For punitive it is likely to seem to the subject, the child.
A child comes from a family. It is family and family history that most adoptees seek. Offering one parent a dubious right by creating; a draconian clause to a new law can serve no good purpose. And who is to say that at a later date that parent will not regret the decision. Is it to be revokable? If so how? By whom? With recourse to court?
Finally, most dreadful of all, this might condemn a small number of adoptees to see themselves as second-class adoptees. Adoption carries enough problems already, as thousands of devoted and conscientious adopters will testify: at least let every child be as equal to other adoptees as possible.
Contact—direct or indirect—is increasingly arranged post-adoption to minimise the stress of disruption for children. If there is a parent who feels that there is a situation in which knowledge of his or her existence will, when the child becomes adult, be disadvantageous it will behove the placing; agency to ensure that independent counselling has been available to the birth family throughout the preparation and placing procedure. An informed parent is unlikely to wish to take a step that will be potentially damaging.
This beings me back to the issue I originally addressed:
ROLES, RIGHTS AND RESPONSIBILITIES OF BIRTH PARENTS AND FAMILIES
In April 2001 I wrote to the Standing Committee on the very essential but all too often overlooked role of birth families post-adoption. Ever since the 1975 Act I have counselled adult adoptees seeking birth information, and sometimes moving on to contact with members of their birth families. I have also, increasingly, in my role as an active guardian ad litem, assisted social workers to set up post-adoption contact—both indirect and direct, the latter most often for separated siblings and, occasionally, for grandparents who were significant in children's lives prior to adoption. I have been very heartened by the largely positive response of adopters to participating in these arrangements. After all the burden of making them a positive experience for the adoptees rests with them.
It has always been possible, by one means or another, to trace ``lost'' adoptees. While the provision of counselling and assistance for adult adoptees was initially regarded with mistrust it has proved beneficial and I can personally testify to this. Increasingly young adults do not feel that a good relationship with adoptive parents will be lost if they seek information about the birth family. Where there is a strong bond between adopter and adopted I have seen it prove an ideal basis for searching and invaluable—whatever the outcome of the search.
But up to now the birth parent has almost always been a passive recipient. In rare instances birth parents or other members of the birth family have managed to locate adoptees—in my experience often when the adoptees were adolescents, not yet adult. Usually, no professional has been involved to support either party to the situation and I have seen hopes raised, then dashed, and bitterness ensue that has been particularly and disastrously damaging—and professional help has had to be enlisted to guide any or all of the parties to understanding and acceptance.
The unthinking response might be to make—or to try to make—``tracing'' harder to do! With today's ever-increasing access to all forms of information this must be pointless. Also we have, recently, been promised a social climate of honesty, transparency and openness—so for those young people and their birth families for whom no form of contact has existed throughout childhood it is particularly essential to provide professionally-based support. Even more important, to ensure minimum distress and damage to the self-esteem of adoptees, is provision of independent support to their families of birth throughout. This would require every placing agency to link with an independent and confidential service that would not interfere with the legal process, if this is towards adoption and separation from the birth family, but would counsel and support that family before adoption, through the process and thereafter. Maybe assisting with indirect or direct contact planning, but always whatever is finally decided is the best plan for the child, ensuring that the birth parent(s) are treated with respect—for their own sake but even more so for the child's.
In my long experience, and after keeping unofficial contact with many children placed in the 1970s and 1980s, some of whom have sought news of their birth families (not all by any means) the majority of birth parents who were unable to offer even minimal suitable care when young have matured and become viable people in their own right. To find this has benefited their adopted children where contact has been made, with appropriate professional guidance. To provide the crucial service is very cost-effective—and also requires considerable financial commitment. I do urge all concerned to recognise that adoptees may, throughout their lives, require and be entitled to, the best of all professional services and these must be there for their original families also. Only in this way will their needs be fully met.
Evidence from Professor Audrey Mullender, University Of Warwick
1. INTRODUCTION
1.1—I wish to submit evidence to the Committee on the basis of my research over a five-year period. My submission focuses on post-adoption contact (particularly in adulthood), access to information (particularly for birth relatives), and sibling groups. Policy and practice in all these areas is still confused and deficient. It is important to remember that this situation will be compounded if more children are placed for adoption unless changes are also made to rectify the omissions and anomalies in the areas to which I allude.
1.2—I conducted the only national research to date on Part II of the Adoption Contact Register (Mullender and Kearn, 1997)—that is the part used by birth relatives—and went on to conduct an in-depth study of siblings on the Register which I combined with an overview of other research on siblings into a recent book (Mullender, 1999).
1.3—The Adoption Contact Register research was based on an anonymised postal questionnaire to birth relatives who had registered their names, covering all aspects of the Register's operation and wider post-adoption issues. The size of the response was extremely high for a postal questionnaire and indicated the strength of feeling amongst birth relatives, who took this opportunity to ``speak out'', often for the first time in their lives. Much of my evidence is based upon the responses of 1,784 birth relatives, not my own views. Many of the issues they raised have implications for future policy decisions.
1.4—The follow-up research sampled those respondents in the earlier study who were the brothers and sisters of adult adopted people for in-depth anonymous interviews by telephone (conducted via a freephone number). Once again, it revealed great strength of feeling, including anger at being kept apart, and it has major policy implications.
1.5—Together with Dr Anita Pavlovic of Oxford Brookes University, I am just starting new research on abandoned infants (``foundlings'') and could also offer limited evidence in that field if required.
1.6—There is a close link between the content of my evidence and that submitted by NORCAP. I have had sight of NORCAP's evidence in draft and would commend it to the Committee as being well supported by research. My only reservations about it would be in respect of vetoes (which cause intense to those encountering them distress and are seldom watertight) and compulsory counselling (which can become an inadvertent obstacle and can place too much power with professionals).
2. POST-ADOPTION INFORMATION FOR BIRTH RELATIVES
2.1—Adoption is for life. This means that a placement made now may have sharply felt consequences in people's lives for eight decades or more. It is important not to fall into the common trap of thinking about post-adoption support for the parties to adoption as only being needed during the adopted person's childhood.
2.2—When the needs of adopted people to have access to their birth records information were recognised in this country, a quarter of a century ago, the equally strong need of their birth relatives to have news of them was overlooked. Belatedly, the Children Act 1989 created the Adoption Contact Register which, though an important improvement to birth relatives' rights, has had only limited success. The rate of links has been low (recently risen from around a three per cent. to around a six per cent. chance of success) and many people stay on the Register for years without a link occurring. Respondents to my research considered that the Register could be improved by increased publicity, regular feedback to those who are registered, a letterbox facility, direct access to an optional counselling service, an intermediary service and a more reciprocal exchange of information when a link is made.
2.3—But the Register alone will never meet the true need, however well it is run. At present, many birth relatives are in distress because they are unable even to find out whether the adopted person is alive and well. Some further improvement will be achieved through the recent issuing of Department of Health practice guidelines on intermediary services for birth relatives, but this will do nothing for those related to someone who was placed privately for adoption. Non-agency placements actually continued into the early 1980s and there are many thousands of adopted people still alive who were placed this way in the past. Consequently, only a change in the law to give rights to birth relatives to obtain identifying information about the adopted person is actually going to meet their needs. There is ample evidence from New Zealand that this can be managed without cutting across the rights of adopted people.
2.4—Respondents to the research also made and responded to more detailed suggestions about the working of the Adoption Contact Register, leading to the following detailed recommendations.
(i) Information placed by proxy about an incapacitated adopted person.
An overwhelming majority of relatives consulted approved of the idea of a new provision, whereby an adoptive parent or other proxy could place an adopted adult 's details onto the Register, in the event that they were too sick or incapacitated to do so for themselves. In the absence of this provision, a birth relative seeking an adopted person who is incapable of registering simply hears nothing and is left to imagine that this is because the adopted person has no interest in them, or that they may be dead. This category of `incapacitated' adopted people would include some with terminal illnesses or coma - where this could be the last chance of an exchange of information, or a reunion if desired by birth relative and adopters, before the adopted person dies. It would also cover forms of disability requiring personal assistance. It is a service which Birth Link in Scotland already offers.
(ii) Information in the event of a death
There is a related question as to whether adoptive parents should be given the opportunity to place on the Register information about an adopted person who has died, either for the simple purpose of passing this information on to any birth relative who might be seeking a link, or to initiate contact with the birth family, if desired. This is not currently possible since Part I of the Register is open only to adopted people for initial registrations. An overwhelming majority of respondents to the Mullender and Kearn survey certainly did want to be informed if the adopted person died so this would be an uncontroversial measure. Southport will already, if asked to do so, record on any existing entry in the Register the information that the person concerned has subsequently died. This means that, in the event of a match between entries in the two parts of the Register, one party can be told that the other has died but it still leaves unresolved the question of contact being initiated between the birth family and the adoptive family of a deceased person who never went on the Register, where desired. It is also only of assistance in cases where the information about a death is communicated to the Office of National Statistics. There is no provision for cross-referencing between the Adoption Register and other information held by the Registrar General. Birth Link in Scotland does allow registrations by adoptive parents where the adopted person has died. The agency reports a particular need for information amongst people who were involved in private placements since there would then be no adoption agency to act as an alternative source of information about a death.
(iii) Right for under-age adopted people details to be placed on the Register
More than twice as many people agreed than disagreed that adoptive parents should be able to place details on the Register for an adopted person who had yet to reach the age of 18. Again, Birth Link in Scotland already provides such a service. There would be no effect on any birth relative—or, indeed, any adoptive family - who did not choose to register their details. Given current adoption practice, adoptive parents would be advised to talk the matter through thoroughly with the adopted person before registering his or her details, and, indeed, a typical scenario would probably be one where they were acting on behalf of a teenage adopted person who themselves actively wanted a link but was, as yet, too young to register (or on behalf of an incapacitated young adopted person, as above).
(iv) Right for under-age birth relatives details to be placed on the Register
A majority of respondents felt there should be the opportunity for those birth relatives who were under 18 years of age to place their own details on the Register. This option would, for example, allow young siblings of adopted people to make themselves available for contact.
3. SIBLINGS
3.1—Siblings are normally thought of, in the UK as people who have one or both parents in common, regardless of whether they have resided together or been parented together. They may share, to a greater or lesser extent, common genes, a common history, shared family values and culture. They may not have the same legal status. Siblings in care tend to have more complex families than other children in the community, compounded by multiple moves and by parallel changes within their birth families. Social workers do not always keep track of children's family constellations. Research reveals a particular lack of contact with paternal siblings. Sibling groups may include children with additional needs in relation to disability (one in five has special educational needs), ethnicity or other factors
3.2—Separation remains a very real issue for siblings who have had social work involvement in their lives. Two-thirds of the children in the study who were to be adopted were separated from some or all of their siblings, and almost half of these were placed apart from all of their siblings. In one study of children placed for adoption, 95 per cent. of all those with siblings were living apart from at least one of them. Social workers were not necessarily keeping track of the other siblings, especially those still at home, so there would be no information about them on the agency file in future years should the adopted person choose to ask. This might include siblings born subsequently, of whose existence the adopted child would not even be aware. Perhaps there should be a duty on local authorities to keep information updated after adoptions from care.
3.3—Another researcher found sibling planning to be service-led rather than needs-led. Social workers reported a lack of placements for larger sibling groups and for those where one of more of the children had special needs. To get round this, they tended simply to record that their plan to separate children was ``in the best interests'' of at least one of the siblings.
3.4—There is general agreement that, where placement together is not possible, contact assumes particular importance. Yet, in one permanence study, nearly half the placements lacked a definite contact plan and it was rare to include all siblings. Many children had other siblings with whom there was no contact at all, even where social workers thought this might cause difficulty. In another study, of young children placed for adoption, two-thirds of those who were separated lacked the potential for contact, with any of their siblings. Even where there is contact, it may not be at the most desirable frequency or organised in such a way that it gives the children concerned meaningful relationships. It is sometimes based on out-dated theoretical concepts about its value for children and its importance is not always explained to adopters. the most desirable frequency or organised in such a way that it gives the children concerned meaningful relationships. It is sometimes based on out-dated theoretical concepts about its value for children and its importance is not always explained to adopters.
3.5—So, initially through separation and then through lack of contact, adoption is still meaning that many siblings are lost to one another.
3.6—Separation from siblings and lack of contact with them matter because research with adults suggests that feelings of loss frequently persist throughout life. This is as true of ``half''-(maternal, paternal) siblings as it is of ``full'' siblings. Adoption legislation as it stands in England and Wales leaves many people with no opportunity ever to find their adopted siblings again, no matter how hard they try.
3.7—Self-reports tell us that the loss of a sibling can involve the loss of: a lifetime's close and loving relationship, support in adversity, a sometimes parental degree of personal care, a shared history, a sense of kinship, of ``flesh and blood'', for full and maternal siblings of a ``bond'' (coming from the same womb) which is understood by all the peoples of the world, of continuity and rootedness, a source of knowledge about the family, and a resource for the individual 's own development of identity. For those with a memory of the sibling, the unresolved grief can be akin to that we now acknowledge to be felt by birth mothers. For those who unexpectedly discover that they had a sibling, their foremost feeling may be more of a devastation, a disbelief, followed by a sense of injustice and of loss of all the things the relationship would have meant to both parties and to the wider family.
3.8—Neither social work theory nor practice has a strong enough foundation to justify claims to ``assess sibling relationships'' so as to guarantee that the pain and sadness of separation can be avoided. Given a consistent lack, too, of policy and practice guidelines on sibling placements and on contact in care and placement agencies, children frequently become separated for adult reasons that have little or nothing to do with their current or future needs, even when expressed in terms of the latter.
3.9—There are no reliable data about siblings who are looked after or for whom adoption is planned. We do not have information about numbers of children with siblings elsewhere in the care system or with the birth family or adopted, numbers of referrals of sibling groups, or categories of reasons for separation. Sibling group placement patterns are typically not monitored. Thus, although social workers and their managers often understand the value of sibling placements (repeatedly also shown to improve placement success), we do not know how often this priority is pushed aside by other, competing factors in the situation. Nor can we record the long-term effects in terms of eventual loss of contact.
3.10—More careful and proactive planning and a wider range of placements are needed across the board. A headlong rush into increased adoptive placements will increase separations still further. Adopters simply are not coming forward in anything like the required numbers for older sibling groups.
3.11—There can be bureaucratic obstacles, too. A sibling group normally counts as one case in a caseload weighting system. This may not allow the social worker to devote the time and attention needed to assess and meet each child 's needs including, for example, where there are complex contact arrangements. Responsibility for key tasks in relation to siblings may fall between workers and between teams. Yet again, this is compounded by the fact that managers are not working to clear policies that might encourage them to take action to clear the blockages to best practice.
3.12—Additional families might be enabled to take on sibling groups if they had help to purchase a larger vehicle, an extension to the house, help with ironing, or other such assistance. There are less tangible needs, too, for input on issues about siblings in general and about aspects of sibling support that may need working on, including in families where one sibling may have abused another. All of these needs point to better resourcing.
References
Mullender, A. (ed.) (1999) We Are Family: Sibling Relationships in Placement and Beyond, London: British Agencies for Adoption and Fostering.
Mullender, A. and Kearn, S. (1997) ``I'm Here Waiting'': Birth Relatives' views on Part/I of the Adoption Contact Register for England and Wales, London: British Agencies for Adoption and Fostering
Appendix One
COMMENTS FROM RESEARCH RESPONDENTS WHO ARE BIRTH RELATIVES OF ADULT ADOPTED PEOPLE:
``Adoption has a hole in the corner history, with its secrets. I dearly hope we will become humane regarding adoption - we must move on and stop morally meddling with other peoples' lives and wishes with this social engineering called `adoption'.''
``I feel we are the forgotten people. Put it under the carpet and forget about it.''
``The law says that all mothers of adopted children must go to their grave never knowing what became of their child; the secrecy surrounding adoption is wrong''.
``It is 1996 and people are more mentally mature and better able to deal with situations like this. The whole secrecy part of this is archaic and totally unacceptable''.
Letter from Veronica Agius, Trustee of Natural Parents Network - Member of NORCAP. B.1940 - mother of Rachel born 1965 - `found' 1990 - to be reunited
I am very concerned to see in this Bill:
In Clause 54 allowing adopted adults access to their birth record has been amended to: In future information is not to be disclosed about the birth family `without consent of the individual'. The individual is usually the birth mother and I believe that the onus should be on her to state whether she wants anonymity, and to be able to review that decision. It is absolutely not just to deny an adopted adult person information about their history and heritage.
My other main concern is:
Access to information for birth relatives of adopted adults. The Department of Health published `Intermediary Services for Birth Relatives—Practice guidelines' in August 2000. The hope of many birth relatives was that the guidelines would be the model for this to be included in the Bill. The practice of contacting adoptive families on behalf of birth relatives has been successfully carried out by the Children's Society and other agencies for some years without any repercussions.
Ref: Adoption, Search and Reunion—David Howe and Julia Feast. Published by The Children's Society 2000.
Adopted people have two families—this may seem simplistic to say but their birth families are so often forgotten. An adopted child comes with a history whether a baby or older and this influences and shapes their future. Not to know that deprives them of a basic human right.
PLEASE LISTEN TO WHAT I AND MANY OTHER BIRTH RELATIVES ARE SAYING - IT IS EVERONE'S HUMAN RIGHT TO KNOW ABOUT THEIR GENETIC HERITAGE.
Please feel free to publish this letter—after the Select Committee in May 2001 it was said that some of the letters contained `deeply personal information', therefore publication would not be appropriate. I am sure I and many others would not have written in if they did not want their submissions made public!
CC. Dr. Des Turner MP Brighton Kemptown
Letter from Penny Gutridge, Lecturer in Social Work, University of Wales, Bangor
I write as an adoptive parent who is also a trained social worker with over 30 years experience in child care social work practice and in the education & training of child care social workers at qualifying, post qualifying and advanced levels.
If I have understood matters correctly it is the government's intention to introduce a clause (the effect of) which will (be to) restrict the right of adopted persons to access all of their original birth certificate information at the age of 18. Years of experience, professional and personal, has convinced me of the importance of openness in adoption and I am deeply disquieted by any apparent regression after decades of cumulative evidence that secrecy, denial and deceit by relinquishing adults (and formalised by society via legislation) cause emotional damage across the life cycle to all parties concerned in the adoption process.
Please exercise whatever influence(s) you can to ensure that government does not support legislation that denies 50 years of practice wisdom & research evidence.
CCETSW Approved External Assessor to Dip SW Programmes & PQ & Advanced
Awards in Child Care SW
Member of BASW/Member Adoption UK
Memorandum from Karen Greenwood
Although I am living in Canada, I am a British citizen who was born and adopted in England. I feel there are some serious flaws in Bill 34.
CLAUSE 19, SECTION 4
This clause states that a relinquishing parent must state that he or she wishes to be informed of an adoption order. It is my opinion that such information should be given automatically, so that the relinquishing parent is always aware when they will not be able to withdraw consent.
CLAUSE 47
This clause states that an adopting couple must be married, therefore forcing a non-married couples to only have one of them adopt as a single person. This harms the child to be adopted, as the child should have the right to a legal relationship with both parents, rather than a legal relationship with one parent and a lessor relationship with the other. Alternatively, such a couple may be denied a chance to adopt, which will reduce the numbers of available homes to children needing them. I think that both straight and gay non-married couples should be considered as adopters.
CLAUSE 50, SECTION 4
If withdrawal of consent is to be denied after an application for an adoption order, the relinquishing parent should always be made aware that such an order is about to be made.
CLAUSE 50, SECTION 5
Instead of asking birth parents to freely, unconditionally consent to the adoption, birth parents should be asked to formally declare that they `accept the adoption plan and fully understand what the effect of the making of an adoption order in respect of their child will be.' Only if this or very similar form of words appear on the consent form is there likely to be any substantial reduction in the number of adoption applications coming before the courts without consent.
CLAUSE 52, CLAUSE 64
Remove the concept of ``legitimation'' - it is derogatory and unnecessary.
This law becomes ridiculous when a single person is supposed to pretend they are married to a non-existent person to ``legitimise'' someone else. It is very common today for children to have unmarried parents. I don't know of any unmarried natural parents that adopt their own children just to ``legitimise'' them - it is an out-of-date and offensive concept.
CLAUSE 53
There is no promise of keeping records indefinitely. This is important in view of the fact that records have been destroyed in the past.
CLAUSE 60
Adult adoptees seeking their own original birth certificates and information on their adoption from the adoption society records should not have to have mandatory counselling. Such counselling should be available if the adoptee wishes to make use of it, but to be required to undergo mandatory counselling is insulting. It makes it seem that there is something wrong with us, that we are unable to make normal adult decisions on our own. It can also be difficult to arrange such counselling, particularly for overseas residents, and those who no longer live in the same area, or those who live in poorly served areas.
CLAUSE 64
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.
CLAUSE 77 - THE ADOPTION CONTACT REGISTER
—it is very expensive to register on it - £15 for adoptees and £50 for birth family
—it is not publicised so very few people know about its existence (only 600 adoptees registered), and it is not flagged for any search engine on the Internet thus making it almost impossible to find by computer
—only the adoptee is allowed to register in part 1 - if the adoptee has died, his or her children will never be able to register
—when an adoptee and birth family have a match on the register, ONLY the adoptee is allowed any information from it. The birth family is not allowed any information AT ALL - not even to be told that contact has been made.
—foundlings (abandoned babies) are not allowed to register
As an adoptee, I was told about the Register when I applied for my original birth certificate. I applied to the register myself, but there is really no way for birth family to find out about it. My birth sister wished to search, but never heard of the Register until I told her about it after I found her.
THINGS THAT ARE NOT INCLUDED IN THIS BILL BUT SHOULD BE:
If this bill is passed, there will be no opportunity to apply the High Court as stated in the Adoption Act 1976 Clause 50 (5), 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 69 year old triplets. 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?
There is no facility for birth family to gain identifying information about the adoptee. This option is available in many other jurisdictions. As an adoptee myself, I would like to think that my birth family could have found me if they wished.
Letter from Valerie Eden
I am writing as a birth mother that was reunited with her daughter after 35 years. In my view adoption should be a last resort.
The principle of adoption is fundamentally wrong. A baby needs to be with the mother who gave him life. He is part of her and he will know when she is no longer there. She cannot be replaced. A child doesn't want to be given away. He doesn't ask for it and he doesn't deserve it. You can't give children away and you can't own someone else's child. If birth parents consent to adoption it is because they don't know how to keep their child.
If adoption must take place, a child's heritage should be acknowledged, protected and honoured. The child has a right to know its heritage. Adopters cannot replace the natural parents and their family is not the child's family.
People who relinquish their children to adoption should know that one day those children will come back and they have a natural right to come back. The agencies, the birth parents and the adopters should prepare for that event.
As a seventeen-year old I signed the adoption papers and I relinquished my child, but I didn't give her away. I entrusted her to the care of others because I didn't know how to keep her. I expected her to come back and she did. I gave the authorities as much information as I could because I wanted her to know that she had a mother and a father. I gave her a name. My daughter grew up thinking that she was a mistake with a number and no name. She walked the world alone and saw no one who mirrored her. You cannot remove a child's past and you cannot take away the hurt of abandonment.
In conclusion, if adoption is the only answer, the bill must respect an adopted child's heritage, and it should ensure that as a child grows up it will know its history. The adoption plan must ensure that everyone concerned protects the child's heritage and works towards the reunion with the birth parents. The birth parents cannot wholly relinquish the child and the adoptive parents cannot wholly own the child. This should be acknowledged at the start.
If the adoption process is inevitable then the bill must acknowledge the facts. The guidelines should be transparent. If the paramount consideration is the child's welfare then the bill must be more concerned with promoting openness than protecting individuals and their secrets.
Letter from Carol Lindsay Smith
Like many others who are professionally or personally involved in adoption, I am writing to express shock at the newly announced proposals that access to birth records should be barred in some cases. This sounds like running backwards into the dark.
I managed several different adoption projects for Barnardo's and other voluntary agencies in the 60s, 70s and 80s when enormous efforts were made (and succeeded) to bring adoption into the light, to make adoption a respectable option for adults and a respected status for children. Enabling children to fully understand who they are involved making sure they knew where they had come from. In a society which grew increasingly open about all sorts of social, sexual and psychological circumstances, birth parents adapted to the idea that it was a reasonable and constructive part of the process for their children to seek background information. As far as I know this has not led to widespread distress or disaster. Indeed I have met many adopted children who have been relieved of the urge to search for their birth parents because they know the option to see their birth records is always available.
By putting up the shutters again, the shameful and mysterious aspects of adoption will be revived and those adopted children who are barred from access to THEIR birth records, are far more likely to boil over with feelings of frustration and resentment that they are not allowed to get at their personal truth.
I hope this provision will be removed from the Bill.
Thank you for taking time to read my comments.
Letter from Debbie Gibson
I am writing to you in respect of the Adoption & Children Bill. I am an adoptee who has had a reunion with my birthparents and 4 siblings 13 years ago. It has been a wonderful chapter in my life and has opened my eyes and heart to a great many new family members and them to me also.
Coming from the angle of Human Rights and Equity I would like to make my comments directly to the clause (53 -62) of the Bill and paragraph 140 in the explanatory notes which would appear to suggest that the new legislation will take away the absolute right of adopted people to access all of their birth certificate information at 18. This is going backwards...not progressive legislation at all. There is overwhelming research and practice evidence of the need for MORE rather than less information. The clause that has been pushed forward at this late stage flies in the face of what should be. It seems this legislation would be turning the clock back towards secrecy . . . and we know how damaging that policy is/was. Take it from someone who knows and was directly affected adversely by secrecy for the first 27 years of my life.
I strongly urge the Special Standing Committee NOT to allow legislators to put the Rights of the Adoptees backwards into secrecy - instead they need to promote the adoptees' rights to access information about themselves and birth family.
PLEASE, please give this matter due heartfelt consideration.
Letter from Adam Sargant
I wish to submit evidence to the committee regarding the current status of the Adoption and Children Bill. As an adoptee, recently re-united with my original parents through a combination of my own efforts and theirs, I am concerned about two consequences of the proposed legislation as it currently stands.
1. There are no retrospective provisions, which will provide any right forbirth relatives to gain access to information about an adopted person. Bydefault it appears even the opportunity to apply to High Court (existingsection 50.5) will be lost by the repeal of the 1976 Act. There is nostatutory requirement on agencies to provide a Birth RelativeInitiated intermediary service on the face of the bill.
2. There are no proposals for both adopted adults and birth relatives to gainthe opportunity to access certain specified information about oneanother, so long as no objection to the release of information has beenlodged. This provision will apply to adoptions where the adoption order ismade after the enactment of the new adoption bill. One consequence of thisis that whilst birth relatives may gain some opportunities adopted adultswill lose their absolute right to all of their original birth certificateinformation. They may not receive identifying information about eitherparent.
I understand (from the explanatory notes at http://www.publications.parliament.uk/pa/cm200102/cmbills/034/en/02034x-c.htm) that the second consequence arise from clause 54 of the proposed legislation, and is in response to protect mothers who surrendered children for adoption and were supposedly assured anonymity.
I believe this reasoning to be fallacious, because (in my case at least) the adoptive parents witnessed documents detailing the original mothers consent. Further, various documents in their possession (including the Adoption Order) detail the original name and date of birth, thus making it easy to obtain the original birth certificate without counselling or indeed any contact with the relevant services. Therefore, her ``right'' to anonymity would have been up to the adoptive parents to decide on, and she was not guaranteed anonymity under any circumstance, certainly not by legislation. I believe this to have been the case in all pre-1975 adoptions.
I would venture to suggest that the proposed legislation would be a retrograde step, in that it will give the right to identifying information about the original mother to only those adopted adults (pre-1975) whose parents are willing to divulge that information, and thus goes no further to the fictional goal of protecting the original parents and further victimises those adults whose adoptive parents may have chosen to deceive them about their adoptive status.
A very large number of adoptions that took place over the years took place with the mother surrendering a child because of the wishes of society and her family. To further complicate the lives of these mothers, and their children, can only be further damaging.
This clause of the act would also take away a right currently held by adoptees. Is this fair or reasonable, to remove a right that some have had the opportunity to exploit, but others haven't? We are not balancing this right against the right of mothers to anonymity, because we have already established that the law gave mothers no such rights in the first place.
I respectfully ask you to reconsider these clauses, and to further the cause of open information for adoptees and birth relatives.
Memorandum from the Worcestershire Action and Support Group for Adoptive Parents
Listed below are the key points that we believe should be taken into account when finalising the details of this Bill. The reasons for these proposals are explained on the following pages.
SUMMARY OF OUR PROPOSALS
For inclusion under a Clause detailing Post Adoption provision:
—Prior to adoption, an assessment of each child's future potential needs;
—Funding to be readily available for preventative treatment in early childhood rather than reactive funding dealing with adult problems in later life;
—Inclusion in the Bill of the Post Adoption issues raised by the 1998 Local Authority Circular (LAC(98)20) ``Adoption—Achieving the Right Balance'';
—Government directed education of professionals within all sectors of problems relating specifically to adoption and children within the ``looked after'' system;
—A full and extensive package of Post Adoption Support in the form of readily available professional help, respite care and funds for, as well as easy access to, special requirements such as therapy and psychiatric help;
—Readily available trained support workers who are fully conversant with post adoption needs and requirements to be available to facilitate multi-agency help and understanding;
—A psychiatric assessment based upon current knowledge of the child and their background to be made available to adoptive parents;
—The adoptive parent should have full knowledge of all the child's medical history;
—All background information to be passed on to the adoptive parents by the social workers involved;
—A proper process for parents to seek a ``fair deal'' from local Government without breaking children's confidentiality. (The only advice given to this Group for obtaining proper resources was to go to Court or the Press—both of which compromise the children.)
We, as a Group, have studied the new draft Bill and find that the provision of Post Adoption Support as outlined in the White Paper has been omitted. The need for statutory assessment and provision of specialist adoption support is essential if this Bill is not to have a detrimental effect on future generations of adopted children and their adoptive families.
Our Group has extensive experience of caring for adoptive children and particularly with the problems that travel with them. We outline below some of the main points we feel your Committee should take into account before finalising the details.
Adoption is a far reaching, emotive subject; the many and diverse issues surrounding it do not have clear cut answers. We, as a Group, are particularly anxious to improve the Post Adoption Support Service in this country and ask you to spare the time to read further in the hope that it will give you some understanding of the pressures and stress we take on with our adopted children.
We were heartened to learn that this Bill is aimed at improving adoption. However, we ask that, in the process of investigation into the moving of children swiftly through the care system into permanent family homes, you address all the issues involved.
As you will be aware, adoption today is a far cry from the relatively straightforward baby adoptions of the 1950's, 60's and 70's when unmarried, teenage mothers gave up their babies through family pressure to avoid the associated stigma. These days the majority of children placed in adoptive homes are no longer babies or toddlers and come with a diversity of negative and damaging experiences. Many are the products of dysfunctional families who are, themselves, products of dysfunctional families. Many of their background case histories make horrific and heartbreaking reading. More and more are being diagnosed with genetic disorders inherited directly from their birth parents, such as ADD, ADHD, Asperger's Syndrome, Dyspraxia, Attachment Disorder, Foetal Alcohol Syndrome, Obsessional Compulsive Disorder, Semantic Pragmatic Disorder, Tourette's Syndrome. The effects of early childhood trauma exacerbate these conditions. Even baby adoptions carry with them the effects of syndromes such as foetal alcohol or drug misuse, affecting children in later life.
On the face of it many of these children present as appealing, loveable, deserving individuals anyone would take to their hearts. With all too much regularity this changes, the appealing facade remaining for strangers whilst the adoptive parents are left to deal with the angry, unhappy, disturbed side of the child.
Our research shows that 85% of children placed for adoption suffer deep psychological, emotional and behavioural problems. The full impact often does not manifest itself until the children reach their teens. As experienced parents we are aware that the teens is often turbulent and paved with difficulties but for adopted children the full force of their troubled earlier life, lack of self esteem, self doubt, questioning their parentage comes to the fore. The impact on their everyday lives and, particularly, their education is both damaging and long-lasting. We know this problem is nationwide.
There is no package of resources and expertise to support the families desperately trying to deal with the situation. The Post Adoption Support Service nationally is appalling and is virtually non-existent. Excuses generally are lack of resources and funding and lack of empathy with the problems. Social Services Departments are constrained by tight budgets which have to stretch through numerous well deserving areas. Post Adoption, not being understood fully by Councillors who see it simply as children moving out of care into secure and loving homes (and thus effecting considerable savings to the budget), is very often given low priority.
Parenting skills are tested to their very limit and in times of crisis, of which there are many, there is no-one to turn to without another battle with one authority or another. The stress and strain imposed on parents and other children within the family is unacceptable. We are playing a committed and caring role in providing for the needs of our adopted children but are struggling with the lack of post adoption support, resources and understanding in the areas of Child and Adolescent Mental Health and generally within the Departments of Education and Health.
Memorandum from the University of East Anglia
We are currently engaged in a series of studies on long-term or permanent foster care in the Centre for Research on the Child and Family at the University of East Anglia. To assist us in making a contribution to the consultation process on the Adoption and Children Bill, we received funding from the Nuffield Foundation to investigate foster carers' perspectives on permanence options available for looked after children. This enabled us to conduct focus groups involving a total of 40 selected foster carers in three areas, all of whom had experience of offering looked after children a long-term placement as a member of their family. Some of those children were adopted from care by their foster carers, some children were subject to Residence Orders (CA1989 s8), some were looked after on Care Orders (CA 1989 s3 1)and some were accommodated (CA1989-20).
The issues discussed in the focus groups were targeted around the core question behind the proposed legislation - how can we ensure that looked after children find a secure family life that meets their needs? In this context, the carers discussed the advantages and disadvantages of existing legal contexts for permanent placements, as well as giving consideration to the proposal in the Bill for a Special Guardianship Order. They also discussed the local authority practice that should be available to support permanent placements under each legal status.
We here summarise the findings from the focus groups which contribute to relevant aspects of the Adoption and Children Bill. Some parts of the discussion related to aspects of the statute itself and others to practice that may need to be dealt with in regulations and guidance or in a fresh look within local authorities at the procedural frameworks for ensuring the success of the full range of permanence options outside the birth family.
Adoption Order
Foster carers who had adopted children they were previously looking after under care orders were very positive about a number of aspects of the changed status. They welcomed the parental autonomy that having legal parental responsibility gave them. They also reported the fact that the finality of the adoption order had reinforced their sense of security as a family, even where they had cared for the children for a number of years. This legal security was said to be important to the children, the adoptive parents and extended family members who shared the commitment to the children. They described how some children particularly valued having the same name as the adoptive family. There were examples of adoptions with and without parental consent, but in both cases contact had continued and children retained links with birth families. Here too the adoption order was felt to be of value in more difficult cases, since it was possible to reassure children that whatever may be said to them by parents at contact, the court had made the decision that this foster/adoptive family was to be their family for life. The carers had adopted the children in order to give them a sense of security but their decision had been dependent also on resources being available.
Key to the foster carers' decision to adopt was the following:
—Availability of financial support
In these authorities there had been a commitment to foster carers who adopted that they would not be financially disadvantaged and would continue to receive allowances equivalent to whatever they would have received as foster carers. Adoptive parents said they would not have been able to adopt without this financial support. These children required more parental availability and so carers often could not work. The children were found to be more expensive to care for and the adoptive parents also wanted to be able to provide activities and hobbies that built up the children's self-esteem.
—Availability of other forms of support
A commitment by the local authority to offer support when and if needed throughout the childhood of the adopted children was seen as very important. This support could be emotional or practical. Adoptive parents might need support and advice and children with special needs often still needed advocacy to obtain educational and therapeutic resources.
The continuation of birth family contact also required a degree of local authority involvement, to assist in funding birth parents and making arrangements -as well as supporting carers and children where necessary.
Carers in one area talked of being able to get support from their former family placement support worker from the fostering team, who was well known to them and to the children.
Such flexibility after adoption ensured continuity and the right kind of support for those families.
Residence Order
Those carers who had Residence Orders had also welcomed the parental autonomy that this had brought. For example, the end of statutory reviews and the end of asking permission for a child to sleep over at a friend's house was viewed by them as giving the children a more `normal' experience of family life.
Key to the foster carers' decision to apply for a Residence Order was the following:
—Availability of Financial Support
As for the adoptive parents, financial arrangements for these carers were similar to those available to them as foster carers and were valued for the same reasons -their role was often much more than ordinary parenting. They needed to give children a compensatory family experience and so it was important to have the resources to take the children on outings that they may have previously missed out on or to fund school trips.
—Availability of other kinds of support
Again, like adopters, the carers with Residence Orders did not want or need frequent visits, but they did want to feel that they could call on social services for help. One carer said that this was 'just like any parent in the community ', but others were aware of the additional needs that they and their children might have.
—Birth parents who were generally co-operative and accepting of the carers as providing family care for their children.
This was the case for those with Residence Orders in these focus groups. There were excellent examples of foster carers feeling comfortable about contacting birth parents directly and giving a strong message to the child that they and the birth parents could work together for the good of the child.
However, most carers felt that where parents were hostile or intrusive and might undermine the placement, this would make it unlikely that they would risk applying for a Residence Order and sharing parental responsibility with the birth parents. There was a great deal of anxiety about having to cope with difficult or distressed parents - particularly when most carers had a number of children and may not be able to give the parents the attention they needed. They also felt that it was better for the child that an agency outside the family, i.e. the social services department, should manage any difficulties with birth families rather than that the child should witness the carers being drawn into difficult confrontations.
Special Guardianship Order
The discussion around the proposed Special Guardianship Order suggested that it would be welcomed by foster carers as an alternative to Residence Orders if it provided more safeguards, as is currently intended, and gave an even clearer message about the permanency of the placement. There will clearly be cases where an Adoption Order is not possible or in the child 's interests and a Special Guardianship Order would be helpful and appropriate. However, the foster carers felt that the same issues would need to be addressed as with Adoption Orders and Residence Orders.
Special Guardianship Orders would be seen as a good option if the following matters were resolved:
—Financial support
Financial support would need to be available, guaranteed and not means tested, like foster care allowances. This latter point again mattered to carers. They said that if there were any sense that Special Guardianship was to be promoted as a cheap option then this would be viewed negatively. Financial support comparable to foster care was considered to be important because a number had mixed families of foster and adoptive children. If one child were not receiving the same allowance as other children in the family then this would disadvantage all of the children, with the family finances having to stretch further
—Support for carers and advocacy for the children
As with Adoption and Residence Orders it was acknowledged that there was a range of support needs for both parents and children. The word 'support' implies emotional support for carers but there were also situations when the local authority could give extra weight to an argument for resources from other agencies. Continuing local authority support around contact might also be needed. This would again be a necessary continuity from local authority care - even if the services were at the request of Special Guardians or the children rather than arising as part of the Looking After Children (LAC)reviewing system.
—Birth families
As with Residence Orders, carers would be able to contemplate sharing parental responsibility with birth parents where there was a degree of co-operation and acceptance.
But carers expressed a great deal of concern about being `head to head' with some more difficult birth parents, who might be hostile, violent or have drug and alcohol problems. This would discourage them from applying for Special Guardianship Orders. Although it may seem that using a Special Guardianship Order combined with Section 8 orders would effectively provide enough safeguards, court orders cannot always ease the day to day pressures/tensions/fears that can arise for children and carers. Equally, if circumstances changed for the worse in the birth family, carers were concerned about how cases would be taken back to court. Most carers felt anxious about becoming directly involved in court proceedings where conflict with the child's birth family is an issue. If carers feel unsafe - for themselves, the specified child or other children in the household-then it is more likely that they would choose to apply for Adoption Orders or to want the children to remain within the protection of the care system.
Children in permanent /long-term foster care under Care Orders (CA 1989-31)
It was evident from the debate about other options, including Special Guardianship, that even if financial and other supports were available from the local authorities, there would be some foster carers who would not choose to apply for orders that give legal parental responsibility and would prefer to act as 'parents 'within the care system -and there would be some children for whom this would be a successful permanence option. These foster carers were still committed to offering children not only `care' and a `placement' throughout childhood, but love and membership of their families into adult life. They gave vivid accounts of their parenting role with young children, but also with adolescents and formerly fostered adults, who needed their support through troubled times but also through positive experiences such as apprenticeships, university and becoming successful parents themselves. Foster carers as grandparents for their foster children 's children was an important theme.
Their reasons for not wishing to go down the Adoption, Residence or the proposed Special Guardianship routes related to factors in the child, in the foster family, in the birth family and in the local authority. Where the child had significant special needs of a physical or emotional /behavioural kind and the future was uncertain then there were concerns about feeling the whole weight of responsibility for the child -even where help might be on offer from the local authority. Where the foster family cared for a range of children it was sometimes felt that it would be wrong to treat one child differently from the others by taking on a different legal relationship to that one child. These carers wanted to give the message to all their long-stay children that they were part of the family regardless of legal status. Often they were proud of their success as foster carers for generations of children and did not feel the need for a `piece of paper'. Where the birth family was particularly difficult to deal with or where they feared that the child might be taken back or drift back to the birth family, again it was felt that the local authority role might be helpful in working with the family. Where the local authority seemed unlikely to be able to sustain a commitment to support for the whole of childhood without a care order in place, carers said that they would prefer to play safe.
All of these arguments in favour of offering permanence within the care system were in the context, however, of recognising both some strengths and some serious difficulties in the way in which long-term placements are dealt with currently. The strengths were evident where social workers provided active and sensitive support to foster carers and children and showed an appropriate awareness that the children were not just in a `placement' but had become part of the foster family. The discussion of the difficulties led to the following proposals.
—Sense of permanence in relation to applications from birth parents
Where a particular foster placement had been agreed by a court as a permanent placement under a care plan, it seemed reasonable to suggest that further applications by birth parents should only be made with leave of the court (CA 1989 s. 91). This safeguard is intended to be built in to the Special Guardianship Orders, but could be used more widely to promote a sense of permanence in long-term foster care, even where parents were not necessarily seen as persistent litigants. This would not prevent further applications by parents, but it would avoid unnecessary disruption (and a waste of court time and resources)when it is clear from the outset that the application has no merit. For a child who is just settling into a family to be caught up in a court case taking up to a year is extremely distressing to a child and to carers. This would not mean legislative change, but could be built into guidance.
—Sense of permanence in relation to decisions by local authorities
Similarly, consideration should be given to bolstering the foster carer 's role legally in longterm placements in relation to removal by the local authority. At present the only route available to a carer to prevent the removal of a child by the local authority is to apply for a Residence or an Adoption Order. There may be cases where this would not be possible or appropriate for the child or the foster family, but where nevertheless it would be in the child's best interests to remain in that placement. A balance would have to be achieved here -clearly there are situations where a child is not thriving and removal from a foster family is necessary. But there are also a small number of cases where children are thriving but are removed for other bureaucratic reasons or perhaps to be returned home when this may not be in the child 's interests. As with the use of - 91, the availability of certain legal safeguards offers a sense of permanence to the child and the carers and also gives a stronger message about the permanency of the arrangement to birth families. How this could be achieved would need to be discussed further between lawyers and social work experts in family placement.—Changes in the application of Looking After Children systems to permanent placements
All foster carers felt that it was very important for foster children 's lives to be as `normal' as possible, even when they remained looked after by the local authority. This issue dominated the focus groups. They felt that where there was a decision that a child should grow up as a member of a specific foster family, then consideration should be given to adjusting existing procedures/devising new procedures. Procedures which need examination would include the frequency and format of the statutory reviews, the foster carers 'need to check many parenting decisions e.g. school trips, with the social worker and sometimes with the birth parents; the need to police check a school friend 's parents before a child could go for a sleepover - and many more. Leaving care procedures and practice were a particular issue, with much anger being expressed at the way in which a child who was a member of their family and was still very vulnerable could be approached and offered a flat or encouraged to move on to some kind of hostel situation. There were some areas where this practice was changing but it seemed to symbolise the need for guidance on promoting security into adult life through the permanence in foster care option.
Accommodated children in permanent /long-term foster care under CA 1989-20.
A number of children were placed in planned long-term foster placements where birth relatives retained full parental responsibility. There are situations where this may be very appropriate, most obviously where children have severe disabilities and caring parents had been simply unable to cope. Here there can be a good co-operative relationship between the two sets of parents. There were still some concerns about the need for all agencies to recognise that these children may be 'only accommodated 'but were in a permanent placement and so issues for these carers around ways of making the LAC systems less intrusive were similar to carers of children on care orders (see above).
There were however specific concerns around the legal status of some accommodated children. There were examples in these focus groups (and our other research - see article in Family Law Quarterly 2000) where there was nobody available with parental responsibility. Children had been abandoned, orphaned or orphaned and left with a guardian who had then abandoned them. It is entirely compatible with the Children Act Guidance for s. 20 to be used in this way, but the reality is a great deal of anxiety for the carers and perhaps the children when there was nobody with parental responsibility to sign formal documents, such as passports or medical permissions. Where there were extended birth family members in touch there was great uncertainty over who should be making which decision. One carer said the legal department had told him that there was no point in the local authority applying for a Care Order because there was no one to oppose it. This seemed a weak argument.
Conclusions
The focus groups suggested that secure and stable family life as a full member of the foster family can be offered under any of the legal options. However some key issues for all placements remain.
—Financial and other kinds of support need to be available whether children remain looked after in long-term foster care or there is a residence order, special guardianship order, or adoption order. Even suggesting that allowances are the same as foster carers may not be adequate without some attempt to ensure that in all areas those rates are themselves sufficient to provide the necessary compensatory care for children with diverse special needs.
—Carers need to have a degree of parental autonomy in order to offer the child as normal a family life as possible. Where a residence order, special guardianship order, or adoption order that give parental responsibility are applied for this is more straightforward and local authorities should offer support in bringing this outcome about for children. Where this is not possible or in the child's best interests, a properly planned and supported foster care placement can also provide security and stability into adult life. Parental autonomy for carers is not so easily achieved for looked after children where local authorities have the role of corporate parents, but this issue must be addressed if carers are to fulfil the expectations made on them with the permanent care plan. They have been entrusted with the care of the child throughout childhood. We may need to actually place more trust in them through new procedures.
—The child's need to maintain birth family ties and the nature of the birth family's attitude to the placement will continue to determine the choice of legal permanence option to some extent. But we must continue to look at ways of achieving adoption with contact, where that is appropriate, or moving to a Special Guardianship Order, with proper support, or providing permanent care with contact within the care system. We have to find creative ways of using law, guidance and a long hard look at permanence to make sure that all children within the care system have the benefit of family care that is not just a placement for childhood but goes on to be a family for life.
Gillian Schofield, Senior Lecturer, Deputy Director of the Centre for Research on the Child and Family, School of Social Work and Psychosocial Studies, University of East Anglia, and Mary Beek, Senior Research Associate, University of East Anglia.
Evidence on placement orders and `looked after' status
(Clauses 21.4 and 29.2)
1. These observations on the impact of the Bill 's proposals on children in need of adoptive and other forms of permanent substitute family are based on my research going back over 20 years, and also on my experience as an expert witness in upwards of 50 complex adoption cases since the implementation of the Children Act 1989. I am a qualified and experience social worker and have been involved in the qualifying and post-qualifying training of social work students since 1980.
2. This memorandum concerns a specific and somewhat technical issue which, if not resolved, may have an adverse impact on social work planning and practice for children looked after where there is an agreed care plan that the child will be placed with a permanent substitute family, preferably for adoption.
3. Like all others to whom I have spoken, I believe that replacing freeing orders with placement orders will be a great improvement. However, I have not seen any convincing argument as to why it is necessary for the child looked after as a result of a placement order to have a different status from other looked after children. Apart from a very small number of children at any one time who are looked after for short periods as a result of police protection or emergency protection orders or remands, children `looked after' are covered by the specific provisions of the `accommodation' or `care order' sections of the 1989 Act. They are 'accommodated' if agreement has been reached with their parents or `in care' if a court has made a care order.
4. It seems to me to make the work of the Social Services Departments unnecessarily complex to have a third group of `looked after' child who are neither `accommodated' nor `in care'. For some children the status of `looked after on a placement order' will be long term and will have many of the disadvantages of the status of `freed for adoption' child. These remarks are made in the context of my own research on the different legal routes to successful permanent substitute family placement and of the recently completed Department of Health funded studies of Harwin et al and Lowe et al. Both of these show that, for a substantial minority of children for whom the original care plan is adoption, the permanent family finally chosen is a foster family, in some cases moving on to an application for a residence order.
5. The `placement order' does not convey a duty to place for adoption but rather authorises a placement for adoption if suitable adopters are identified who can meet the child's identified needs. The research shows that not all children will be so placed. Indeed the Bill and the Second Reading debate recognise that more children will be enabled to benefit from living with substitute families if a wider range of options, including special guardianship, is available. To have to go back to the court to have the placement order terminated so that the child can again be 'in care' and living with a `permanent' foster family, perhaps prior to an application for special guardianship, will in many cases be an unnecessary waste of court time. The child will also find it at the very least odd, and at worst it will reinforce the feeling of failure—`nobody wanted to adopt me'—which all involved with the change of plan will be doing their best to avoid.
6. In short, some children will remain for long periods as `placement order' children, this being recognised by Clause 20,4,b which envisaged that some children will marry or `age out' of being looked after on placement orders at the age of 18. It would make more sense for the child to remain 'in care' with all the safeguards and clarity which go with that status, until being placed with adopters. Regulations could be used to ensure that certain aspects of practice for children in care (such as the requirement to seek to return them to their families) do not apply. Clause 28 (1) could be amended to state that the care order does not have any effect whilst the child is placed with a family for adoption.
7. Under the present clauses, a placement order may be made without a care order being also made. Since the conditions for the making of a care order will have been satisfied, it would be possible for the Bill to require a care order to be made alongside a placement order.
8. Arrangements for contact with parents, other relatives and siblings (or the refusal of contact) could then be made as for other children on care orders under the provisions of Section 34 of the Children Act 1989, with the Courts taking on board that the plan is for the child to join a permanent substitute family, preferably through adoption.
Professor June Thoburn, Director, School of Social Work and Psychosocial Studies.
Memorandum from Jane Liddell, Project Coordinator,
I am Co-ordinator of a Multi-Agency project funded under the Home Office Crime Reduction Programme, Violence Against Women Initiative. Our project is piloting new services to reduce repeat victimisation in domestic violence; we work with women who wish to remain in their own homes. We support them through civil or criminal procedures. We collect extensive data on all our clients and any civil or criminal procedures, patterns of violence, involvement of children etc.
My employer is Bradford Metropolitan District Council Social Services Department; the steering group for the project involves Police, Probation, Health, several voluntary organisations etc. We are concerned that often views about child contact when there has been domestic violence are polarised, between those of the Children Act and the assumption that contact is always in the best interests of the child and views that are often attributed to domestic violence services providers that contact is not in the best interests of the child when there has been domestic violence. We believe that contact should be assessed for safety before any such decision is made.
In order to assess the safety of contact it is essential to take into account more than civil orders under the Family Law Act (in line with the Northern Ireland Amendment). The evidence we have submitted shows that criminal convictions for violent offences should also be taken into account. It is true that domestic violence is very under reported and that obtaining convictions is often hard to achieve, but to ignore those that have been convicted omits evidence proven beyond reasonable doubt. One of the accusations made is that women will be alleging violence in order to be vindictive and deny a man contact and that her evidence will have a low burden of proof and often be uncorroborated, examining criminal convictions overcomes this problem.
Our project was only launched in April 2001, but has gathered sufficient evidence to demonstrate that even the Northern Ireland Amendment does not go far enough. Criminal convictions featured in 36.25% of the sample cases whereas civil orders under the Family Law Act featured in only 20% of our cases.
We would be very happy to share more detailed findings if required. Please contact me if you require any further information.
STAYING PUT CLIENTS AND IMPORTANT EVIDENCE FOR CHILD CONTACT
Method of Selection
Eighty cases were chosen randomly from our files where women had children. All Staying Put clients have experienced some form of domestic violence.
Cases where contact could be an issue
In 74 of the cases chosen the perpetrator was the father of the children (or some of) in the household. Our service often does not have long-term involvement with cases. Child contact cases are not in our remit. However in all of these cases there has been domestic violence and both our client and the perpetrator are parents to the children, therefore contact could be an issue.
Number of Criminal Convictions
In 29 of the cases the perpetrator has a conviction for a violent offence in the home. We have only included domestic violence related offences. Often the charge is breach of the peace or common assault, but it is as a result of behaviour towards the mother of the children.
&&&
Number of Orders and Undertakings under Family Law Act
In 16 of the cases there was a non-molestation order or an undertaking under the Family Law Act.
Number of Cases where there are criminal convictions and civil orders under FLA
In 8 of the cases there is a criminal conviction and an order or
undertaking under the Family Law Act.
Staying Put, PO Box 449, Bradford BDl 2XB
Tel: 01274 730070; Fax: 01274 735231; 24-hour helpline: 0800 085 6206
Domestic violence. You don't have to live with it.
Memorandum from Overseas Adoption Helpline
1. INTRODUCTION
Overseas Adoption Helpline (``OAH'')is represented on the Adoption Law Reform Group which has submitted joint evidence to the Special Standing Committee and is a member of the Network for Intercountry Adoption (``NICA'') which has submitted written evidence and has been invited to give oral evidence. We are pleased to have the opportunity to submit further evidence on some elements of the Bill with specific reference to intercountry adoption. The areas outlined in this memorandum which we wish particularly to focus upon are:
—Adoption Support Clauses 2-4 and 8-l 1
—Disclosure of Information about a Person's Adoption Clauses 53-62 and 76
—Restrictions on Bringing Children into the UK Clause 80
—Which countries' adoptions might be specified as ``overseas adoptions'' Clause 83
—Special Guardianship Clause 110
In addition we make general comment on matters relating to the Adoption (Intercountry Aspects)Act 1999
—Registration of Overseas Adoptions
—Adoption Contact Register
—The role and function of Accredited bodies
—After arrival in the UK, the duty to supervise the child 's placement and prepare a report for the court.
2. ADOPTION SUPPORT (CLAUSES 2-4 AND 8 -11)
Overseas Adoption Helpline welcomes the recognition given in the Bill to the importance of adoption support services for adopted persons, birth parents and adoptive parents and that, now intercountry adoption is included in a comprehensive adoption service, adoption support will be extended to those affected by intercountry adoption. However, we are concerned that a local authority will have a duty only to carry out an assessment and not subsequently to provide the services which are assessed as needed. We are equally concerned that there is no duty on the Health Authority, Primary Care Trust or local education authority to provide adoption support services once they are notified of the outcome of an adoption support assessment. In our view, there should be a statutory duty on local authorities, Health Authority, Primary Care Trust and local education authorities to provide the adoption support services which are identified as needed following an assessment.
Overseas Adoption Helpline is a small registered charity which offers information, advice and other support both before and after intercountry adoption. It seems quite possible, therefore, that we would fall within the definition of an Adoption Support Agency. In principle we would welcome accreditation as an ASA but, in the absence of detail as to what is entailed, we have serious concerns that the criteria we would be required to meet would place an undue burden on our organisation both structurally and financially. We worry that the impact on our organisation and others of similar size will result in a reduction in the diversity of adoption support to which small organisations contribute.
3. DISCLOSURE OF INFORMATION ABOUT A PERSON'S ADOPTION (CLAUSES 53-62 AND 76)
OAH is perplexed by the provision that has been introduced which denies adopted people access to identifying information if there has been an objection to such by the person to whom the identifying information relates, perhaps most likely the birth parent. We are also concerned that, for the first time, there will be sanctions imposed on any agency which divulges restricted information contrary to regulations made under these provisions.
Research evidence abounds in domestic adoption of the importance adopted people attach to being able to access information about their birth parents and their own birth. This is important as a key part of their own identity irrespective of any intention the adopted person might have to search and reunite with members of their birth family. Anecdotal evidence given by intercountry adopted people suggests that their need for such information is at least as great as that of people adopted domestically. We consider it inconsistent with the paramountcy principal as set out at Clause 1 (2) (the paramount consideration of the court or adoption agency must be the child's welfare throughout his life)that an adopted person's access to information about their birth could be denied if his or her birth parent objected to the disclosure information which would identify him or her.
Children adopted from overseas have frequently been abandoned with little or no detail being available to them about their original family, nor perhaps even their original name or actual date of birth. For them the matter of access to identifying information is perhaps academic.
However, where a child has been relinquish by a birth mother, in most cases her identity is likely to be known and the birth mother may have met the adoptive family. Whether or not the birth mother wished identifying details to be passed to the adopters, in practice they will have had all the documents from the application to the court or notary in the overseas country. In other circumstances, should there be provision for the birth parent to object to identifying information being passed on to the adopted person, and this information was not, therefore, passed to the adoptive parents, it would be likely to be impossible in most countries to trace that mother and ascertain her wishes when the adopted person, decades on, wished to have such information.
In some overseas countries, for example Russia, it would not only be an insurmountable challenge, it would also be illegal to make contact with birth family members after the adoption application has been disposed of. We think, therefore, that this provision is wrong in principle and, for the most part, unworkable in practice as it is only where adoptive parents are unwilling or unable to impart information which identifies the birth parents that the adopted person's access to his or her birth details will be denied.
We recommend that the right of adopted people to identifying information about their birth parents and the facts of their adoption should remain in England and Wales, at the same time recognising that in practice for children adopted trans-nationally such information may be withheld as a result of adoption legislation, procedure and practice in the child's state of origin.
4. RESTRICTIONS ON BRINGING CHILDREN INTO THE UK (CLAUSE 80)
It must be stressed that the vast majority of intercountry adopters proceed to adopt overseas within the required procedures in both the UK and overseas. However, we welcome the strengthening of sanctions against adopters who circumvent the proper procedures so as to embrace those who apply to designated countries and are granted a recognised overseas adoption. It will become an offence for people to bring a child into the UK who has been adopted within the previous 6 months if they have not complied with the required UK procedures. We wonder why the threshold of 6 months has been decided upon. In our experience intercountry adopters frequently have to remain in the overseas country for three or more months and exceptionally as long as a year in order to comply fully with the overseas country's requirements. It is our view that this provision is likely to be rarely invoked but as a deterrent we would suggest that the period should be extended to one year. This timeframe would sit squarely with the usual one year qualification for children to be admitted to the UK as de facto dependants in circumstances where they have been adopted by UK nationals whilst living overseas.
5. WHICH COUNTRIES ADOPTIONS MIGHT BE SPECIFIED AS
``OVERSEAS ADOPTIONS'' (CLAUSE 83)
In OAH's opinion a review of the ``Designated List'' is long overdue and important safeguards for the child are likely to follow from its revision. We await clarification of the criteria which the Secretary of State will specify for countries to be included on this list.
6. SPECIAL GUARDIANSHIP (CLAUSE 110)
OAH welcomes the proposals to introduce a new ``special guardianship'' order to widen the options for permanence for children.
Adoption -A new approach (White Paper December 2000) sets out the children for whom this route to permanency might be most suited:
``children who deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes supportive, lifelong relationship with their carers, where the court decides that is in their best interests.''
``Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad.''
This description might be extended to encompass circumstances where prospective adopters, particularly those related to the child concerned, wish to provide a permanent and legally secure home in this country to a child from overseas but who do not necessarily seek to adopt that child.
There are a number of overseas countries where transfer of parental responsibilities other than by adoption (e.g. through guardianship or kafala) provides permanence for a child without severing all ties with the original family. We can envisage occasions where special guardianship would be a preferred route to permanence for children placed trans-nationally to the UK from such countries. Use of such provision would probably be exceptional in the case of `stranger' adoption if the child is separated from his or her original family and there is no known person in the state of origin who has parental responsibility for the child. Although this may still be the option of first choice for people from minority communities in the UK who have religious and cultural difficulties with adoption who wish to provide a permanent home to a child from overseas who shares their religion and culture.
It could also provide real benefits for a child who had been admitted to the UK because his or her circumstances were so serious that they qualify to join a relative and to enter the UK for settlement. Currently, following admission, relatives would usually apply to the UK court for an adoption order. In many cases, it may not have been their wish to change the child 's legal relationships with their birth family members but it was the best option available to them for permanence for the child.
Special guardianship would appear to offer a significantly strengthened legal relationship between the child and his or her relative without the necessity of their becoming new legal parents through adoption. To be a real option for the child, this would, of course, require that special guardianship had immigration recognition and that citizenship could be conferred, on application, to a child who was the subject of a special guardianship order. Otherwise, there could be no guarantee that the child could continue to benefit from the permanence of family life beyond the age of 18 years when special guardianship ceased to be in force.
GENERAL COMMENT ON ADOPTION (INTERCOUNTRY ASPECTS)ACT 1999
REGISTRATION OF OVERSEAS ADOPTIONS
Provides that if the Registrar General has sufficient particulars relating to a child adopted under a registerable foreign adoption to make an entry in the Adopted Children Register, he must make the entry accordingly. We welcome this provision and await details of what constitutes `sufficient particulars'.
Currently, children who are adopted overseas are unable to have their adoption registered and are, therefore, unable to receive the adoption/birth certificate that is issued in respect of domestically adopted children and in respect of children adopted from a non-designated country overseas who are subsequently adopted in the UK. Without this adoption/birth certificate children have to rely throughout their life for day-to-day purposes on their foreign ``birth certificate''. This not only continues to mark them out as different from the wider population, but also in some cases the birth certificates can contain negative references such as ``abandoned'' or ``without parents''.
In order to protect their children from this unwelcome state of affairs adoptive parents have turned to the English courts to readopt their children. Although this is not required in law it provided a route to adoption registration and the acquisition of an English birth/adoption certificate. However, not all courts are content to hear such applications and at a time when emphasis is upon efficient and effective use of court time and timetabling it represents an expensive and potentially unnecessary use of important and scarce resources.
As we understand the provision in Adoption (Intercountry Aspects)Act 1999 overseas adoptions will become registerable from the time of implementation. We are arguing that this should have retrospective effect so that it can encompass earlier adoptions and respond to the needs of children adopted previously (probably the largest number of whom will be the 800 plus children who have been adopted from China). Otherwise the adoptive parents, unwilling for their children to be exposed in this way through to adulthood, will take the expensive option for the court system and continue to make application for re-adoption to the English court. Overseas Adoption Helpline recommends that the legislation be amended to allow for the adoptive parents or the child to apply for their overseas adoption to be registered at any time.
Adoption Contact Register (Clause 74)
There is nothing on the face of the Bill to indicate that the government is intending to give access to the register to people who are unable to use the service at present, namely ``foundlings'', adopted people who were abandoned as babies in the UK, and people who grew up in the UK having been adopted from overseas. It may be that it is the governments intention to address this in regulation. However, if this is not the case we would urge that consideration be given either
(a) to providing access to the Adoption Contact Register for people adopted from overseas and their birth relatives, or
(b) provide for a separate intercountry adoption register for people adopted from overseas and their birth family members.
If the latter were to be favoured, this could perhaps be managed by the Central Authority in such a way that all parties to intercountry adoption had equal access to the register, whether they were birth relatives with limited resources in a developing country or relatively well established adopted people in the UK.
The role and function of accredited bodies (Clause 10 (4)and Section 2 of the Adoption (Intercountry Aspects)Act 1999
There is a huge gap in services to UK intercountry adopters and the children they will eventually adopt. Unlike other receiving countries UK does not have even one specialist agency which
—assists applicants after approval to make appropriate links with agencies in the overseas country
—works together with the agency/body in the overseas country at the stage when the approved family is matched and introduced to a waiting child
—supports applicants through the legal process in the overseas country through to the child's arrival in the UK
—links with the overseas country in providing post placement/post adoption services.
We welcome the strengthening of sanctions against adopters who circumvent the proper procedures. But we feel strongly that alongside these there should be greater support for adopters and facilitation of the intercountry adoption process through the development of `linking' and `intermediation' services to carry out the functions outlined above. In our opinion this can only be fully achieved if `linking' was the dedicated function or one of the dedicated functions of specialist agencies.
UK intercountry adopters need this full service and currently turn to American agencies to provide it—agencies which are not subject to regulation in the UK and which are not accountable to any authority in the UK. Most overseas agencies might offer a child centred service of operate to the highest standards. However, the risks where adopters having little choice but to make their own adoption arrangements with overseas agencies and bodies have become only too apparent in the case of the Kilshaw adoption earlier this year of twins from USA.This absence of a sound service at the `linking' stage of the intercountry adoption process represents a gap the intercountry adoption service in the UK and a gap in the safeguards for children placed with UK intercountry adopters. We urge that acknowledgement is given to the crucial importance of the `linking'stage of the intercountry adoption process and that specialist agencies are accredited and funded to provide this service.
After arrival in the UK, the duty to supervision the child's placement and prepare a report for the court. (Clause 80 (6))
Overseas Adoption Helpline offers a subscription service for local authorities and Voluntary Adoption Agencies (VAAs). Some of our VAA subscribers are concerned about any regulations which may in the future require them to carry out welfare supervision of children and provide Schedule 2 reports where they are the accredited body who has assessed the adopters' suitability. If this became a requirement and, as a statutory duty, could not attract a fee to cover the VAA's costs, this would prove too great a financial burden on them. It could result in their reviewing the viability of their intercountry adoption services as they would be unable and unwilling to subsidise such a service.
Memorandum of evidence from Barnardo's
INTRODUCTION
Barnardo's has ten projects across the UK involved in adoption work. Eight provide placements for children looked after by local authorities and two provide counselling and support to the parties to adoption. Children who are referred to us tend to be older, disabled, in sibling groups or need a racially and culturally appropriate placement. However, we have in recent years received an increasing number of referrals of pre-school children. All our adoption placement projects offer foster care but this varies from permanent placement only to the full range, from short-breaks to permanence. One of our counselling projects also undertakes guardian ad litem and reporting officer duties. In addition to our own projects we also provide financial support to various regional post-adoption services. This includes pump priming a new service in the Eastern Counties and a satellite of After Adoption in the North East and providing accommodation for the London Post-Adoption Centre.
We are committed to the provision of high quality adoption services. We believe in monitoring and evaluating our work, in learning from experience and in developing innovative and more effective ways of working. We have conducted or commissioned research into the placement of disabled children for adoption, adoptive applicants attending panel, birth-relative initiated contact, reunions and direct access to adoption records. Our What Works series of publications on evidence based practice includes two reports of particular relevance to adoption `What works in Family Placement' (Sellick and Thoburn 1996)and `On the Move Again: What works in Creating Stability for Looked After Children' (Jackson and Thomas 1999).
GENERAL COMMENTS ON THE BILL
The publication of this Bill is very welcome. The past twenty-five years have witnessed major changes in policy, practice and the delivery of adoption services and such changes should be mirrored in modern legislation, with appropriate provision for all whose lives are touched by adoption. Adoption is a life-long process and the legislation must reflect this. However, the primary driver for this Bill has been the Government's commitment to improve the adoption systems for the benefit of children which we fully support. Adoption has had a high public profile in recent years but at times the debate has been characterised by a pre-occupation with the needs of adults. We have been concerned by the inaccuracy of some of the information in the public domain and by a tendency to embrace simplistic solutions.
From our own experience and that of other voluntary agencies, we are aware that the majority of children currently being placed for adoption are under five. This raises questions about what is happening to older children who are unable to return home. Some are being adopted and others undoubtedly could be, if more families could be recruited and post-adoption support and adoption allowances were adequately resourced. However, we do not believe that adoption will be an appropriate or realistic option for all of these children, particularly those aged 8/9 +. Some will not want to be adopted as they retain a strong sense of identity as a member of their birth family. For some special guardianship could offer an appropriate alternative. Others may require a level of continued support which is more likely to be available within a fostering context and we are concerned that such children should not be left for years in limbo whilst the ideal of adoption only is pursued. Promoting adoption should not be at the expense of developing and resourcing alternative options for children whose future, at least in the short to medium term, may lie in a different direction.
Where children could and should be adopted, the acid test of this Bill must be: will its provisions help us to make successful lasting placements with positive outcomes for the children concerned? The funding identified for adoption within the Quality Protects programme is welcome but we are not convinced that it will-be sufficient. We are particularly concerned that priority will be given to placing more children, in order to meet performance targets, at the expense of any significant improvement in post-adoption support and the availability of adoption allowances.
We fully support many of the Bill's provision such as:
—Achieving consistency between adoption and the 1989 Children Act, with the child's welfare being paramount and the application of the welfare checklist.
—The requirement to give consideration to the child's religious persuasion, racial origin, cultural and linguistic background.
—The duty to publish a local authority plan for the provision of
adoption services.
—The new provisions for special guardianship which could potentially provide a real alternative option for children for whom adoption will not be appropriate.
We would like to particularly emphasise the importance of the second point above. We are concerned by the way valuing and promoting a child's heritage is sometimes portrayed as an obstacle to adoption, a symptom of `political correctness' rather than a genuine need and entitlement of the child. We believe that a child's heritage is an essential part of who they are and that this needs to be recognised and valued if a child is to grow up with confidence and a sense of self-worth. Children placed for adoption are at the greatest risk of losing their heritage if it is not shared by the adoptive family, as their continuing links with birth family and community are likely to be weaker than foster children, if they exist at all. Our practice experience has demonstrated that black and minority ethnic adopters will come forward if agencies are committed to active and creative recruitment which acknowledges the strengths of these families and values what they have to offer. We believe it is essential that the legislation includes a commitment to addressing children's racial, cultural and linguistic needs.
SPECIFIC ISSUES
We would like to highlight specific areas of the Bill which currently concern us:
Adoption Allowances (Clause 2 (6))
When adoption allowances were introduced in 1983 schemes had to be approved by the Secretary of State but local authorities had more flexibility in devising criteria for their schemes. Some took advantage of this and developed schemes which facilitated an increased number of placements in the 80's and where for some groups of children payment of allowances was nearer the norm than the exception. It also enabled the recruitment of families from certain communities, for example black lone parents. The introduction of the Children Act regulations made schemes more restrictive and the focus has shifted to meeting only additional adoption related costs. In our view allowances should be available to cover the ordinary maintenance costs of a child if this enables people who-are already parents to consider adoption.
Clause 2(6) (page 3 line 19) has a fleeting reference to `financial support' which we feel is a totally inadequate recognition of the role that adoption allowances could play in widening the potential pool of families able to consider adoption.
We have campaigned for some time for a review of the adoption allowance system. We believe that the current system is failing to meet the aim of facilitating adoption for more children. As an agency placing children whom local authorities consider hard to place, we have been dismayed by how few of those children actually qualify for an adoption allowance - 15 out of 52 in 1998/99 and 16 out of 68 in 1999/00. We are unable to advise families what level of financial support they might receive as this varies so much from one local authority to another. If the Government is serious about significantly increasing the number of families coming forward to adopt, this will mean attracting a wider range of families. Recent BAAF research would suggest that parents, single applicants and families on low incomes are underrepresented amongst approved adopters. For all these groups, finance may be a particularly pertinent issue affecting whether they can consider adopting.
Adoption Support Services (Clauses 4 and 5)
The duty for local authorities to provide adoption support services under Clause 5 is very welcome and we would hope that regulations and guidance will provide far more explicit direction to authorities about the type and range of services that should be available. However, the provisions contained in Clause 4 do give rise to considerable concern. The right to an assessment of their needs will be available to children and families but the local authority is then under no obligation to provide any of the services that it may have decided are needed. Any potential adoptive applicant reading this Bill will not be reassured that should they decide to take on the task of parenting a child with very complex needs, they will not be left to cope without any real entitlement to support.
The provisions of the 1976 Adoption Act have clearly proved inadequate in ensuring an adequate level of service is available across the country. All Barnardo's projects offer post-adoption support to the families they work with and much of this work is still funded by voluntary income. As members of the Consortium of Voluntary Adoption Agencies we now charge the post-adoption module for new placements and attempt to negotiate an additional fee if more complex work such-as supervised-contact is, required. However, the income we receive for this area of our work falls far short of the costs involved. Whilst the families we work with know that the project will continue to be there when they need them, they also need to be able to access appropriate services for their child within their local community. For families caring for a child with particularly complex needs, the availability of health, education, child and adolescent mental health services is key. We fully support the need for a multi-disciplinary strategy but would suggest that post-adoption support needs to cover both access to universal services that can meet your child 's needs and the availability of specialist support from people with knowledge and expertise in adoption. We believe that the latter should be available from every adoption agency and local authority, complemented by a network of regional services which can offer independence and specialist areas of expertise.
Families need to be able to exercise some degree of choice about where they receive a service as some will prefer to return to people they know and with whom they have developed a relationship and others may value a totally independent service. Legislation needs to clearly state who is actually responsible for ensuring a service is provided bearing in mind that many families adopt children from local authorities other than the one where they live. Inner-city authorities may place children in more affluent areas of their region and if we are to avoid the legal wrangle that arose over responsibility for care leavers, responsibility for post-adoption needs to be clear In our view funding for adoption support should follow the child.
A written agreement at the time of placement specifying what support will be available, should be current good practice. Children should not be placed for adoption without an assessment of their needs and clearly for some this will indicate that therapeutic services, for example, will be required. However, the system must be flexible and able to respond to emerging need. Some children may disclose abuse years into placement, others may appear well settled only to explode in adolescence, issues around contact may require varying levels of support over time. It would be a profound mistake to assume that demand for services can be predicted and set in stone at the time of placement or adoption. Families need to know that the door is open, that they can return when the need arises and that no one will sit in judgment upon them and deem them to have failed.
Management etc. of Agencies (Clause 10)
We fully support the introduction of an appropriate regulatory framework for adoption agencies. We have found the process of registration and inspection by the Social-Services Inspectorate to be. a valuable and constructive experience. However, we do have concerns about the use of a single regulatory framework for all the services required to register with the Care Commission. We understand that this framework was originally developed for individual care homes and its application to the structure of a national voluntary adoption agency is potentially problematic. A more flexible approval without any undermining of the safeguards for children would be welcomed.
Fees (Clause 11)
We are concerned about sub-section l(a)of Clause 11 which we understand may be used to make regulations on the `inter-agency' fee which funds our services. If such charges were to restrict our ability to recover the costs of adoption through a realistic level of fee, this could have profound and adverse consequences. The voluntary sector already subsidises adoption services to the tune of around f3.5 million per year (1999/2000 Consortium of Voluntary Adoption Agencies Statistics)and provides approximately 20 per cent of placements. Any measures which reduce the income that agencies can generate through fees could result in some agencies ceasing to operate with a resulting loss of resources to children.
Independent Review Mechanism (Clause 12)
We are not against adoptive applicants having the right of independent appeal. However, whilst the detail of the appeal process may be more appropriately addressed in regulations, we believe that in principle the adoption agency should not be required to meet the cost of the process.
In our view the regulatory assessment has underestimated the financial impact on voluntary agencies. The costs of convening an independent panel are likely to be considerably greater than referring a case back to the agency's own panel. For example, a referral back would not necessarily require an extra meeting to be called and the majority of the agency 's panel members are likely to be giving their time free of charge. The costs of running a voluntary agency panel are currently included in the overheads which it recovers through its charges for services. However, a local authority purchasing a placement from a voluntary agency is hardly likely to wish to pay the costs of the adopters' having appealed to the independent review panel, in addition to the usual inter-agency fee. The costs will therefore have to be met from charitable funds -hardly the purpose for which they were donated.
The right of independent review is well-established in the financial services industry but insurance companies, despite having vastly superior resources to any voluntary adoption agency, are not expected to meet the direct costs of an individual policy holder's appeal.
For us as a large national voluntary organisation, this issue is one of principle. For a small voluntary adoption agency, the financial impact may be far more significant.
Access to Information (Clauses 54 and 57)
We are very concerned by the implications of Clause 54 potentially denying an adopted child access to any identifying information about their birth family members without consent. Consent may not be available because a birth parent cannot be found or is unwilling to co-operate with an agency whose adoption plan they contested. Are their children to be denied the most basic information, such as a mother 's name, which the rest of us would take for granted.
We have drafted our own guidance for projects and recognise the fine balance that has to be achieved between the right of the adoptee to know about their origins and the right of the birth family to personal privacy. However, we would question why the birth family should not be identified. Where children do not have continuing direct contact, they may well have photographs of the birth family through their life-story book. If the adopters or child do not have the birth parent 's current address at the time the information is compiled, then regulations could require that this is not included without the birth parent's permission. However, a more general prescription on including any information which might identify the birth family could restrict the adoptee's access to relevant information about their origins. We would be happy to make our guidance available.
We also believe that access to information should be a two-way process and have an agency policy and guidance on assisting birth relatives seeking information and possibly contact with an adopted person. In our view an intermediary service should be in place to provide safeguards. Recent Government guidance was welcome but we would want to see a requirement on all adoption agencies to provide this service.
Under Clause 57(l)the adoption agency is required to provide information to adopters after the making of an adoption order. We cannot understand why the proposed timing for this is not consistent with current practice or the requirement of Regulation 12 (1983 -Adoption Agencies Regulations). Adoptive parents need written information about the child and their background when they are considering whether to proceed with a placement not after the order has been granted. The Department of Health will be aware that, together with a local authority, we were recently sued for allegedly failing to provide full information at the time of a placement, which subsequently disrupted after the adoption order. We were successful in refuting the claim and the case was dismissed but we believe that we could have been legitimately accused of negligence had the information not been provided until after the child was adopted, as required by clause 57.
Whilst we would hope that information would be shared with an adoptee by their adoptive parents, we accept in some cases that this has not happened. We would therefore agree that an adult adoptee should have the right to obtain a copy of the information from the agency.
CASE STUDY `ALAN'
Alan was nine years old when referred to the Project for adoption. His early life was characterised by disruption: alcohol abuse, marital discord and violence were all features of his parents' lifestyle. Alan was the subject of both physical and sexual abuse, and was admitted to care when he was six years old. Two foster placements disrupted as a result of Alan 's aggressive behaviour, and carers also felt very uncomfortable with his sexualised behaviour. Alan was admitted to a Children's Unit. His need for therapeutic help was identified and met. He made excellent use of therapy sessions to begin to act out some of his abusive experiences, and express some of his anger and confusion. The Child Assessment report prepared at the time of referral indicated a child who retained some very significant problems, aggressive behaviour, temper tantrums and inappropriate sexual behaviour towards women. Significantly he was also a child who carers felt very warmly towards and who did form attachments. He made positive relationships both with his therapist and his key worker in the Children's Unit. There was also evidence that through these relationships he was beginning to be able to modify his behaviour.
Alan's placement was acknowledged as being a medium/high risk placement. In the preparation and planning for Alan's adoptive placement it was clear that any adoptive family was going to need considerable support. In conjunction with the local authority a support package was planned and agreed prior to any introductions to prospective adopters; the local authority would continue to pay a fee to Family Placement Services for providing the following post-adoption support:
—Individual casework support for as long as was required;
—Access to support groups;
—Access to training: ``reparenting the sexually abused child'', ``handling difficult behaviour'', ``safe restraint techniques''
—Respite care if requested
Alan would continue to receive individual therapy for at least one year into placement, after which Alan 's therapist would offer consultancy to Alan 's adoptive family. It was vital that all of these elements were agreed to prior to placement. They have proved essential in sustaining what has been an extremely challenging adoptive placement.
Extract from letter from adoptive mother:
``I have realised that Ann & Mary are liable to have emotional problems for many years yet, maybe always. The extent of their loss - of childhood, spontaneity, security, trust etc has only recently hit me, previously I had thought a few years would almost mend it. Now I recognise their problems may well be life-long. As they move into adolescence, I have realised their childhood is lost forever. It's painful and-painful too-to-admit. I have a loss-of mothering, missing out on sharing the joy and wonder that is part of parenthood. And knowing that whatever their intellectual/practical potential is, they are unlikely to achieve it because of all that has happened to them. I guess it is a bit like discovering your child has a chronic illness -there is a sense of loss, anxiety, the knowledge your child has to cope with this forever and facing up to the fact that you have to adapt to it. Quite an emotional upheaval. I don 't know why it has hit me suddenly (having had them 4 years felt significant). . .It surprises me to be so thrown when I had quite a lot of experience [previously as a foster carer]and excellent preparation!
Having faced this I feel much stronger to go on. I am beginning to realise that constant and ongoing love and acceptance are by far the most important things, and whilst we continue to give the girls that, it doesn't matter if we can't always find answers. I recognise my biggest enemies are feelings of frustration - ``there's no way forward'' - and failure - ``I must be getting it wrong''. I have tried to move my goalposts (not easy when you have to do it whilst still refereeing and being bumped by assorted players!!), adjust my expectations of them and accept there may be little reward in mothering them for a long, long time. It has been a struggle, but having done it I have suddenly found I am able to really enjoy the tiny things -a gesture, a few minutes of happy abandonment for them before their eyes blank again, a touch, a smile, a skip. It's feeling good and so much more hopeful.
I feel as though I've been through a long dark tunnel...though there have been dark, angry times Ann and Mary remain my very special and much loved daughters. I shall go on loving them, caring about them and trying to help them - for as long as it takes - probably forever! I just wish I was better at it!''
POSTCRIPT: Since this was written the youngest girl has sadly had to leave the family home. However the adopters still see themselves very much as her parents.
For further information on this paper please contact:
Pat Thompson, Parliamentary Adviser Tel: 0208 498 7740
e-mail: patricia.thompson@barnardos.org.uk
Memorandum from Brent Council
Brent holds adoption records for the National Adoption Society, the Western National Adoption Society and for the London Borough of Brent.
The experience of working with adopted adults who have requested access to their birth records has shown us that information about their birth families has been regarded as essential to their ongoing personal development and mental wellbeing. Those of us who have not been adopted take for granted that we know the names of our parents, and have knowledge of our family histories, family characteristics, and it can be hard for us to put ourselves in the shoes of somebody who has been denied this fundamental right. Every person has a right to know who their parents are -the ones they were born to.
Usually, adopted adults who wish to find out more about their birth relatives are wanting to understand more about themselves. Those who go on to trace their relatives usually do so in a respectful and sensitive way. Some research has shown that some birth relatives do not welcome contact, but many do. In our experience, many birth parents believe that they should leave the right to search up to their children who were adopted.
It is our belief that it would be a retrograde step to deny adopted adults access to their birth records. If we have to trace their birth parents to ask permission, we may find we are too late in many cases. Adoptions go back to 1926, and elderly adopted adults are still approaching us for information, sometimes long after their birth parents have died. Other birth parents may have changed names, or gone to live overseas. It is not always possible to trace birth relatives.
Would it not be better to treat adoptees as responsible adults and allow them access to the information they need, whilst giving them the help and advice to use the information in a responsible and respectful way?
Section 51 (I)and (2)
To act as if the child were born to his adopters is to encourage denial of reality. It is one thing to provide a family but another to pretend the first family did not exist. In our experience this can create problems for the adopted person throughout his life. There are adopters who have denied the existence of the birth family to the point where they have created stories for their adopted children about the pregnancy and birth, as if they had given birth themselves.
Also, if an adopted adult traces his birth family, in our experience this can cause more distress for those adopters who have brought the child up as if he were their own than for those who have openly talked about the adoptee's birth family and have helped and encouraged the need for more information. Adopted people need to be accepted for who they are. They are not fictional characters.
We would urge urgent reconsideration of these proposals.
Jean Milsted, Birth Record Counsellor, and Monash Kessler, Post Adoption Team Manager.
Memorandum from the Centre for Research on the Child and Family, School of Social Work and Psychosocial Studies and the Centre for Family Law and Family Policy, School of Law, University of East Anglia—Professor David Howe, Professor June Thoburn, Dr. Caroline Ball and Dr. Elsbeth Neil
INTRODUCTION
The University of East Anglia is recognised internationally as a leading research centre in the field of child welfare, and family placement in particular. We have over 25 years of experience of undertaking research relevant to adoption, and we continue to be active in this field. This memorandum addresses the single issue of the right of adopted people to obtain a copy of their original birth certificate, a right that will be curtailed by clauses 53-62 and 76 of the Adoption and Children Bill. We argue on the basis of evidence from our own research projects, and those of the wider research community, that the proposed legislation is a retrograde step that is likely to cause harm to the psychological wellbeing of adopted individuals. Furthermore, to our knowledge there is little or no empirical evidence supporting the need for any restriction on adopted peoples' rights, and the law is likely to be unenforceable in practice.
INFORMATION ABOUT A PERSON'S ADOPTION: THE RESEARCH EVIDENCE
The consequences of clauses 53-62 and 76 will be that some adopted people will be denied the most basic of rights: access to information about their own birth. The importance of background information, including identifying details of birth parents, to the psychological wellbeing of adopted people is firmly established by a wealth of research studies. It is now 28 years since the research evidence of John Triseliotis's `In Search of Origins' study was presented to the Houghton Committee, and was subsequently highly influential in according adopted people the rights they currently hold under Section 5 1 of the Adoption Act, 1976. Professor Triseliotis's study identified that for some adopted individuals, knowledge of background information including identifying details of birth parents, is a deeply felt psychological need, and that the absence of such information can lead to consequences ranging from negative feelings of incompleteness, loss and anger, through to severe difficulties in establishing a sense of personal identity. The findings of this early study have been replicated repeatedly in a large number of research projects carried out in the UK and abroad. There is a persuasive consensus in the published literature supporting the position that for many adopted people, access to basic information that all other citizens take for granted i. e. the right to know who you are and where you come from, is crucial to psychological health. The recent study undertaken jointly by Professor David Howe from UEA and Julia Feast from The Children 's Society (Howe and Feast, 2000) has established that the desire to trace birth relatives is not confined the those people who actively search, but is also felt by many, if not the majority, of adopted people who, for various reason, had not sought contact with birth relatives. These research findings suggest that in situations where a veto has been placed on the release of information, some adopted people will be driven to seek out identifying information about their birth parents. A number of individuals may have identifying information about the birth parents, e.g. other birth relatives, foster parents, neighbours. It cannot be expected that these people will maintain this secrecy for the rest of the child's life. Modern adoption is now a much more open process, the spirit of which is to gather and share with adoptive parents as much information as is possible. Procedures have evolved accordingly and are simply not compatible with secrecy. A `pocket' of secrecy within an open system cannot work. There is also the danger that, as has happened in the USA, secrecy will promote the development of a private, profit making industry that will subvert the law by seeking out the identity of birth parents in spite of any veto.
In contrast to the extensive amount of empirical evidence that supports the policy currently in existence, there is a remarkable absence of any research findings that endorse the proposed change in legislation. There is solid evidence that obtaining background information results in benefits for the adopted person. A review of 12 published studies reported that `when a search is completed it usually results in significantly improved psychological changes within the adoptee' (Schechter and Bertocci, 1990). The study by Howe and Feast (2000) looked at the experiences of 472 adopted people who been involved in searches for background information and/or reunions with birth relatives. This study established that seeking and obtaining background information and/or meeting with birth relatives did not undermine relationships within the adoptive family, in fact 60% of people said they subsequently felt more at home in their adoptive family. The majority of adopted people said that they found receiving background information a positive experience. There is also evidence from the Howe and Feast study that the overwhelming majority of birth relatives who were sought by adopted people fully accepted the adopted person's need for information and contact. A further linked study being conducted by John Triseliotis and the Children's Society, has examined directly the responses of birth relatives who were sought out by adopted relatives. Early findings report that 93% of birth relatives found this experience to be positive or very positive (Feast and Triseliotis, personal correspondence).
Here at UEA we have extensive knowledge of the research in this field and we know of no research studies that have indicated any foundation for fearing that retaining adopted peoples ' rights to identifying background information will negatively impact on the welfare of birth relatives. In an era where evidence based practice is a key concept for the government, it is unfortunate, indeed embarrassing, that an effective social policy, copied and aspired to in many other countries, and supported by sound empirical evidence, is planned to be exchanged for a different policy that we know will cause harm, and for which there is no indication of its necessity.
CONCLUSION
We would strongly argue that the proposed adoption bill should retain the rights of adopted people to have access to information about their background, including identifying information about their birth parents. Exceptional situations where allowing the adopted person to exercise this right would seriously endanger a birth relative could continue to be dealt with on an individual basis by the court, as happened in the case of R. v. Registrar General, ex p. Smith, [1991]2 All E. R. 88.
References
Howe, D. and Feast, J. (2000) Adoption, Search and Reunion. London: The Children's Society.
Schechter, M. D. and Bertocci, D. (1990) The meaning of the search. In Brodzinsky, D. M. and Schechter, M. D. (eds.) The Psychology of Adoption. New York: Oxford University Press.
Triseliotis, J. (1973) In Search of Origins. London: Routledge and Kegan Paul.
Letter from Hedi Argent, Independent Adoption Consultant
I am completely bewildered about how or why these clauses have been added to the Bill. There has been ample consultation about every other aspect of it, but now at the last moment, something of vital importance to all adopted people has been slipped in without any basis on evidence from practice.
I have worked with children and families for over thirty years. Most of my work has been in adoption, both in local authority and voluntary agency settings. I was a Guardian ad litem for ten years. Since 1988 I have been an independent adoption consultant, trainer and author.
Since 1975, adopted people have enjoyed the right to be given the information necessary to obtain their original birth certificate and birth-parents have been aware of the possibility that their adopted children might seek to contact them when they are adults. Fears expressed at the time about the potential distress and embarrassment for birth-parents were, I believe, generally unfounded. Approaches to birth-parents have been made in a sensitive way, usually through mediators, and if the outcomes have not always been immediately happy, the great majority of adopted people and their birth-parents have been glad that the doors can be kept open. If there is other than anecdotal evidence of harm done, it has not been made available and would have to be weighed against the mounting evidence from research of the benefits which have accrued from the greater openness provided by the Children Act of 1975.
I hope I may be exempted from sending the required 30 copies of this letter.
Letter from Mrs. Ruth Williams
I am writing to your committee to express my concern that past injustices have not been addressed adequately in the Adoption and Children Bill.
I am a birth mother who gave up my son for adoption in 1965. This was a very painful experience and it seems to give me more grief as time goes by. In 1996 I decided to try and make some effort for reconciliation with my boy by asking the adoption agency to contact him. It took until January 2000 to make contact with him and this had to be done through his adoptive father. My son is now an adult, but apparently the adoptive family have to be notified first in order to show transparency and that there are no ulterior motives. I think that this was very insulting to a 36 years old adult, especially as in this case he was sent a letter in an unsealed envelope enclosed with a letter to his adoptive father. My son soon declined contact and this is still the situation. The adoption agency say that the adoptive parents are normally contacted first in order to try to avoid possible litigation as a consequence of their activities in tracing adopted children.
I would like to ask the committee consider the interminable grief of birth mothers and to try to find some way to acknowledge it. Some of the grief of birth families that were affected by the adoption practices of the 1960s could be helped if it was easier to make contact. Perhaps the committee would state that birth mothers were very courageous and they and their children were very badly treated and let down by the welfare authorities of the day and that reconciliation should be a priority with all agencies.
Letter from Phillida Sawbridge, Director of the London Post-Adoption Centre
I am writing as someone who worked for over 30 years in the field of adoption, ending up as Director of the London Post-Adoption Centre. I have seen this Bill, and while there are many good things in it, I am writing about one proposal that concerns me very much, i.e. the restriction on access to birth records for adopted adults.
When the Children Act 1975 first introduced access to birth records, there was considerable concern that this was retro-active and that the consent of the birth-parents to be identified could not be obtained. In point of fact, both experience and research have shown that only a very small proportion of birth-parents have objected, while the enormous benefit to adopted adults of knowing and understanding their original identity has fully justified this legislation.
If the proposed restrictions are to apply only to post-2001 adoptions, they seem quite unnecessary, since birth-parents can be warned of the rights of their adopted child once s/he reaches 18, which was not the case post-1975, Parents can make it clear in a variety of ways that they do not want contact, but it would be a gross injustice to create a sub-group of adopted people who did not have the same rights as all the rest to information. The majority of adopted adults respect the wishes of birth-parents who do not want contact.
The suggestion is that ``every individual involved in a person's adoption'' should be given the ``right to express their wishes about the sensitive information that identifies them''. The trouble with this is that the adopted child at placement, and later the adult, would have no equivalent right to acquire that information, if withheld, and yet the information concerns them probably more than anyone else involved. If the child's welfare is to be paramount, then this proposal seems to me to be untenable. Perhaps one way of helping the birth-parent feel better about knowing s/he would be identified would be to involve them in the compilation of the package of information to which adopted adults are to have the right. This is anyway basic good practice.
It also worries me that adoption agencies would be given the discretion ``to override a decision to withhold or disclose identifying information''. Basic human rights should not be subject to this kind of possible variation, and agencies should not have to carry the responsibility of deciding when or whether to act in this way. There is ample evidence of how differently agencies view, for instance, the requests of birth-parents for more information about their adopted child, or for intermediary services to contact them, and this kind of variation would doubtless operate in the proposed provision, creating further injustice.
At a time when more open adoption has become the norm, when most of the children being placed are anyway older children, who may well have knowledge and memories of their original families, and after a quarter century of the rights of adopted people to know who they were, and whose genes they carry, this particular proposal seems a very retrograde step, and one I hope will not find a place in the final Act.
Submission from the National Council for One Parent Families
National Council for One Parent Families (NCOPF) welcome the opportunity to give evidence to the Special Standing Committee in respect of the Adoption and Children Bill. Having outlined our position on the needs of birth parents in adoption proceedings in evidence to the Select Committee in May 200 I, we restrict ourselves here to outlining our concerns about the possible impact of clause 106 (Parental Responsibility of the Unmarried Father).
Parental Responsibility
Parental responsibility brings with it automatic standing in all matters affecting a child. Once granted, the non-resident parent has a right to be heard on any issue in relation to the children. Public bodies are required to consult them. They have a right to object if the mother wishes to move house, to change a child's school, to move abroad, to take a child on holiday, to change a child's name or to consider adoption. Schools are required to consult about educational matters, including school trips.
At present, unmarried fathers can acquire parental responsibility for a child either by reaching an agreement with the mother or, where there is no agreement, by application to the court, subject to it being in the interests of the child. It is usually granted where a parent has shown commitment to a child and has a regular pattern of contact. However, the courts get an opportunity to examine these issues and each party can make their case.
Clause 106 of the Adoption and Children Bill grants parental responsibility to any father who becomes registered as the child's father. This right can only be revoked by court order (Clause 106 (4)).
The issues
It is important to encourage contact between fathers and children and to foster positive involvement in their children's lives. In most cases, this is to the advantage of the child's long-term welfare and provides parenting support for lone mothers. The acquisition of parental responsibility may well endorse and encourage such relationships and may even result in more fathers assuming financial responsibility for a child through, for example, child maintenance obligations. Family patterns have changed and it now seems an anachronism that married and unmarried fathers are not on equal footing in law.
However, under the current system, unmarried fathers can acquire parental responsibility through a fairly straightforward procedure. We are concerned that the automatic extension of parental responsibility might carry with it certain unintended consequences, not only for the mother but also for the child. Furthermore, allowing fathers to acquire parental responsibility automatically by joint registration risks confusing two kinds of action. First, the registration of a child 's birth and identifying his or her parents and second, the acceptance and acquisition of responsibility and locus in a number of practical, family arrangements.
Concerns
Creating an increased need for court orders. In 1999, nearly four in ten births were registered outside marriage. Sole registrations, together with joint-registrations by non-cohabiting couples account for 37 per cent of births registered to unmarried parents. In a small but significant proportion of cases, therefore, it may not be safe to assume that both parents are taking practical, day to day responsibility for a child. It is important to ask whether we really want someone who is not involved with a child day to day, or who is not known to the child, to make important decisions, for example, about schooling. Such cases will be few, but the proposed process risks creating more of them.
There are situations where a parent with care needs to be able to get on with bringing up the children without interference from a father who still has parental responsibility. For example, conflict, abuse or violence may have occurred after the child's birth. This can be managed at present only by the parent with care obtaining a residence or other order under section 8 of the Children Act. Such an order allows the parent with care to ask the school, for example, not to deal with the other parent. Our impression, based on calls to our helpline, is that increasingly lone parents do not have access to a solicitor when their relationship breaks down because of cost. If fathers who have never lived with their children are given automatic parental responsibility on registration, more mothers with care will need residence orders or orders under section 8 who are not financially in a situation to go to court.
Potential for confusing family arrangements. It could lead to confusing family arrangements where a natural father on the birth register who has had no contact with a child and a step-father who lives with a child could both have parental responsibility for the same child. In day to day arrangements or in the event of the mother's death, this could lead to conflict and difficulty for all parties and the child concerned.
A risk of discouraging joint registration. There is a very real danger that linking parental responsibility with birth registration could indeed discourage some fathers from jointly registering the birth. The father may fear, for example, the intervention of the Child Support Agency (CSA), or other responsibilities. In over a fifth of cases where unmarried parents jointly register a birth, they are not living together. It is vitally important for most children to know who their parents are even if, regrettably, the father is not later involved in the child's life. Nothing should be done to jeopardise this.
An alternative solution
Increasing awareness of current rights and responsibilities of cohabiting parents and the procedures for acquiring parental responsibility. It is right that the acquisition of parental responsibility by an unmarried father should be easy. However, this is already the case. In practice, getting parental responsibility either by agreement or through the courts is a formality. It is not a difficult procedure and information could be made readily available to parents about how to acquire it.
Currently, the majority of parents are unaware of their legal position in relation to parental responsibility. The current low take-up may be the result of an incorrect assumption by unmarried fathers that they already have parental responsibility. Many parents have no idea about their legal position or about whether or not they have parental responsibility for a child. They are not aware that they do not have formal standing in relation to issues affecting their child. The rights and responsibilities of cohabiting parents and the avenues for establishing parental responsibility should be publicised.
In cases where a birth has been jointly registered, the relevant forms could be sent out to people after a period of time to promote the idea of entering into agreements and to give direct access to the necessary procedures. Information about sources of advice available could also be shared. This would encourage parents to think about what the acquisition of parental responsibility would mean and why they need it. The case for doing this is particularly strong where parents are cohabiting. Fathers who have lived with the mother and child are much more likely to stay in touch with the child should the relationship with the mother break down.
An alternative might be to provide a standard form (or skeleton agreement)at registration, giving parents at least six weeks before confirming that they agree to joint responsibility. We do not expect someone to decide about whether or not to have a child adopted within the first six weeks after birth. The same should apply to parental responsibility. This would allow time for both parents to confirm they agree to joint responsibility by both signing the form. It should be made clear that if they decide not to they could come back to the issue at a later stage using the same form if necessary. They could seek further information and advice in the meantime.
Safeguards if clause 106 is to be implemented
Help with legal costs. Clause 106 pushes the onus onto mothers to apply for residence or other section 8 orders, whereas before the onus was on fathers to acquire responsibility. Mothers must have access to help with legal costs for these proceedings. In this context, we are concerned that the Government has decided to remove automatic passporting for those receiving WFTC/DPTC for certain levels of service funding by the Community Legal Service. From 3 December 2001, a new means-test is to be introduced. Justifying the change the Government said:
``The Government believes that it is right for those who can afford to do so to contribute to towards the cost of their funding. These tax credits are more generous than their predecessors, and research has shown that only 6%of recipients would have qualified for full funding without the passport.''i
NCOPF is concerned that, under the new rules, fewer lone parents on working families tax credit will qualify for help with legal costs. The Standing Committee could perform a useful function in establishing what the Government estimates to be the impact of the policy change on lone parents in receipt of working families' tax credit.
We have already spoken to lone parents who dare not work because their expartner continuously challenges court decisions on the arrangements for the child. In some cases the resident parent is forced to return to court on numerous occasions. If she works full-time the family could find itself in financial difficulties due to repayment of legal charges. We are concerned that there are serious implications for the Government 's welfare to work objectives.
Clear information about the implications of jointly registering the birth. If clause 106 is to be implemented, parents must be given very clear information about the implications of jointly registering the birth. The mother should certainly be able to prevent the father from acquiring parental responsibility in circumstances such as when the pregnancy was caused by rape or incest or where the father had a documented history of violence.
Many lone mothers have contacted us to check that any legislation to this effect should not be retrospective. In some cases they are worried that a father who only has a biological connection with the child may wish to exercise his new rights in an unhelpful way. They will need to be reassured that the legislation is not retrospective.
Notes
i The Lord Chancellor's Department Consultation Response, Community Legal Service—Financial Conditions for Funding by the Legal Services Commission, March 2001
Memorandum from Shelter
Two recent court cases have severely limited the assistance social services authorities are required to provide to homeless families with children in need under the Children Act 1989. Shelter has strong evidence that, as a result of these cases, social services are now routinely offering to take children into care, rather than helping to keep homeless families together by helping to secure accommodation for the family as a whole. This undermines the principles of the Children Act that the needs of the children are paramount and that families should be kept together wherever possible and is causing homeless families to take desperate and inappropriate measures to avoid being separated from their children. We therefore believe that amendments should be included in the Children and Adoption Bill to clarify the responsibilities of social services authorities to provide assistance to homeless families with children in need under the Children Act.
BACKGROUND
Under the Housing Act 1996, local authorities are under a duty to provide accommodation for unintentionally homeless people in priority need. Homeless families with dependent children are included within the priority need definition and will therefore be accommodated by a housing authority as long as they meet the other eligibility criteria under the legislation (broadly speaking that they are resident in the UK and are not deemed to be intentionally homeless).
However, in circumstances where families with children will not be housed by the local housing authority, the Children Act 1989 provides a further safety net. Under sections 17 and 20 of the Act, social services authorities can provide assistance in order to protect the welfare of the children. Section 17 includes powers for social services to provide assistance in securing accommodation by, for example, helping with a deposit or the rent. Accommodation may also be provided, either under section 17 or under section 20, which includes a specific power to secure accommodation.
These powers have provided a particularly important safety net in cases where families are found to be intentionally homeless. Approximately 9,000 households are found to be intentionally homeless each year, the majority of whom are families with children. Decisions about intentionality are notoriously complex. Shelter's experience is that assessments are often harsh (a family who experience unexpected financial difficulty and decide to sell their home to avoid falling into debt, for example) and in many cases inadequate. Our housing aid centres are often successful in overturning them.
The consequences of being found to be intentionally homeless are severe: the household is given only limited time (usually around 28 days) in temporary accommodation and is often barred from the housing register. In these circumstances, their options are likely to be extremely limited. Accommodation in the private rented sector will require a deposit and rent in advance, resources that are beyond the reach of many homeless households.
Sections 17 and 20 of the Children Act have therefore provided an important safety net where families have been found to be intentionally homeless and in other circumstances where children are in need. Indeed, the Code of Guidance that accompanies the homelessness legislation advises local housing authorities to contact social services in any case where a finding of intentional homelessness has been made and there are children involved.
The combination of the duties on local housing authorities under the homelessness legislation and the powers available to social services under the Children Act have up to now provided a satisfactory (although not perfect) safety net for homeless families with children. However, this safety net has been severely undermined by the impact of two recent court cases.
THE COURT CASES
The nature of the obligations on social services authorities under the Children Act has been considered in two recent court cases:
On the application for judicial review by G (11 April 2001), the Court of Appeal found that section 17 of the Children Act merely confers a power for local authorities to provide assistance, rather than a duty. It also found that the duty to provide accommodation under section 20 of the Act is a duty to house the child, not the parent(s) and the child (ie to take the children into care).
The High Court reiterated this judgement in A v London Borough of Lambeth (25 May 2001), a decision confirmed in the Court of Appeal on 5 November. The Court of Appeal ruled that section 17 creates only a general duty to safeguard and promote the welfare of children in need and confirmed that it does not place any duty on authorities to help secure accommodation. Two of the judges (Lord Justice Chadwick and Sir Phillip Otton) held that section 17 was not directed at the provision of accommodation at all and that the only scope available under the Children Act for securing accommodation is under section 20.
What these judgments mean is that there is no requirement at all on social services to provide assistance to help secure accommodation for homeless families with children in need. The only assistance social services are required to offer is to accommodate the children only ie to take them into care. This considerably narrows the legal interpretation of the scope of these powers.
THE EFFECT OF THE JUDGMENTS
These judgments are likely to have a significant impact on homeless families with children in need and result in social services authorities providing assistance in far fewer cases. Where assistance is provided, it is likely to be limited to offering to take the children into care under section 20. This severely undermines the central principles of the Children Act: that the needs of the children are paramount and that families should be kept together wherever possible.
Parents will clearly not want to be separated from their children. In practice therefore, this is likely to mean that, when confronted with an `offer' from social services to take the children into care, families will search desperately for other alternatives, no matter how inadequate or short term, in order to keep the family together.
Shelter has strong evidence that the judgments are already having a significant and widespread effect on the way in which social services authorities are applying the provisions of the Children Act. A number of recent cases dealt with by our housing aid centres are at Annex A. The plight of some of these families was also recently highlighted in an article in The Observer which is at Annex B.
THE CURRENT POSITION
This issue was first raised in the House of Commons by Karen Buck MP during standing committee on the Homelessness Bill. It was also raised by several peers in the second reading debate in the House of Lords on 12 November. During that debate, the Housing Minister, Lord Falconer said:
``The Government take this matter very seriously and are giving it careful consideration. It has become clear to me that we need further evidence of how the provisions of the existing Act work in practice. I intend to meet representatives of local government and social services very shortly to obtain that information, and I shall report to the House in due course.'' [Official Report, 12 November 2001, col. 373]
The issue was raised again in the House of Commons in an adjournment debate by Karen Buck MP on 21 November 2001. In response the Parliamentary Under Secretary of Health, Hazel Blears MP, said:
``We will consider the judgments very carefully, especially the judgment of 5 November, in terms of the powers under section 17. We will then decide whether any action needs to be taken and, if so, what would be most appropriate ...... We want to study the judgment and to examine what effect it is having in the field. We want to find out whether local authorities are deciding to change their practices ...... It is far better if families with vulnerable children in need can be assisted to find long-term sustainable solutions, rather than provided with short-term unsatisfactory ones.'' [Official Report, 21 Nov 2001, col. 121WH]
WHAT NEEDS TO BE DONE
Shelter believes that to reverse the effect of these judgements and to restore the safety net for homeless families with children, sections 17 and 20 of the Children Act should be amended to make it clear that social services have a duty to provide assistance to children in need and, explicitly, that this assistance should be to help to secure accommodation for the children and the family together. This would be consistent with the principles that the needs of the children are paramount and that families should be kept together wherever possible.
A change in the law is necessary because the judgments have construed such a narrow definition on the duties and powers available under sections 17 and 20. Strengthened guidance will not be sufficient to override the impact of the judgments. Indeed, in the Court of Appeal in R v Lambeth Borough Council ex parte A, Lord Justice Laws stated:
``The guidance is not a legal resource for the construction of the statute''.
Our understanding is that amendments to the Children Act would be outside the scope of the Homelessness Bill. We therefore hope that amendments can be included in the Children and Adoption Bill. Our suggested amendments are at Annex C.
ANNEX A: RECENT CASES DEALT WITH BY SHELTER'S HOUSING AID CENTRES
The cases below represent a snapshot of the type of responses our housing aid centres are coming across following the court cases. We are currently engaged in gathering further evidence and cases. We would like to emphasise that in none of the cases below was there any apparent child protection issue involved. The ability of the parents to care for their children was not been in question. The only problem was that the family were homeless. In nearly every case, we have lost contact with the family concerned following the offer to take the children into care.
A family with three children aged 6, 10 and 13 years old. There were no health or child protection issues. The household were found to be intentionally homeless because of rent arrears and stayed with in-laws until they were asked to leave. They approached the homeless persons unit who refused to assist. The family slept on the streets for a night. They returned to the homeless persons unit who then referred them to social services. Social services said no help could be provided for the family as a whole and offered to take the children into care. Shelter contacted the social services department to arrange for an assessment under the Children Act. The parents called back the next day to advise that they had been refused any additional assistance. At this point, we lost contact with the family.
A woman with mental health problems stemming from sexual abuse as a child brought her assured shorthold tenancy to an end because she could no longer afford the rent. She has two children, aged 15 and 10. The youngest has learning difficulties and is attending a special needs school.
The family approached the local authority for assistance under the homelessness legislation and was placed in hostel accommodation for a month. They were found to be intentionally homeless, a decision which was upheld on review. They then applied to the social services authority for assistance under the Children Act. Their response was to offer to provide accommodation for the children only, once the hostel accommodation came to an end. The woman refused the offer.
The housing department have sought possession of the family's hostel accommodation. With representation from Shelter, the possession order has been delayed for six weeks. We are now preparing Judicial Review proceedings against the social services authority in the hope of changing their decision before the family are evicted from the hostel. Although the opinion of the health authority community care team is that the mother is vulnerable and in need of ongoing support, and that her condition is being exacerbated by the uncertainty over her housing and fear that her children will be taken into care, the recent court decisions mean that the prospects of such action succeeding are weak.
A family with two children aged 6 and 3 months were refused assistance by the housing department. They stayed secretly in a friend's room in a single person's homeless hostel. The hostel found out and asked them to leave. They sought advice from Shelterline who arranged for them to be referred to social services for an assessment under the Children Act. Social services responded by offering to take the children into care. Although the mother was still breastfeeding her 3 month old baby, they told the Shelterline adviser that separating the children from their parents was not against their best interests and no further assistance was offered.
A family with four children aged 9, 12, 14 and 16 were found to be intentionally homeless due to rent arrears from a private tenancy. Three of the children have disabilities. A review of the decision was requested and the local authority paid for bed and breakfast accommodation for the family while the review was carried out. The review found in the authority's favour. Shelter referred the case to social services for an assessment under the Children Act. Social services offered to take the children into care. The parents refused the offer. Neither the social services department nor Shelter have been able to contact the family since.
ANNEX C: SUGGESTED AMENDMENTS TO SECTIONS 17 AND 20 OF THE CHILDREN ACT 1989
In section 17 of the Children Act 1989 (provision of services for children and their families) after subsection (6) there is inserted—
``(6A) In any case where a local authority have, in assessing whether a child is a child in need, determined that he requires accommodation they shall provide that child (or a member of his family) with such assistance as shall reasonably be required to enable that need to be met.
(6B) Assistance required under subsection (6A) above may include—
(i) assistance by way of advice to the child or to a person having parental responsibility for him;
(ii) assistance by means of cash payments or loans to a person whom the local authority reasonably believe to be able to provide accommodation to the child (and to any person who might reasonably be expected to reside with him); and
(iii) the provision of accommodation.''.
Amendment to section 20
In Section 20 (1) of the Children Act 1989 (provision of accommodation for children), after ``need'' insert
``(which may, in a case for which subsection (1) (c) below applies, include accommodation provided for the child and another person or persons)''.
Memorandum from ASIST (Adoption Support in Society Today)
This is the first opportunity to reform Adoption Law in a generation and it is unlikely that there will be another chance for major change for a further 20-30 years, so it is important that the new legislation has real teeth and does in fact work to provide improved adoption services for the benefit of children.
Support in Society Today (ASIST) welcomes the initiative of the Adoption and Children Bill and particularly its main aims:
—To give paramount consideration to the welfare of the child
—To provide security and permanence for children
—To reduce delays in the adoption system
—To improve the performance of the adoption service
—To promote greater use of adoption
—To encourage more people to apply to adopt
—To offer an independent review to prospective adopters turned down by an adoption panel
—To provide adoption support services.
PART I of this memorandum makes general comments on the Bill and PART II makes recommendations for the inclusion of additional clauses concerning the adoption of babies, provision of services for relinquishing mothers and pre-birth counselling.
PART I
It has been recognised during the consultation process that the provision of adoption services nationally ranges from adequate to virtually non-existent. In order to surmount the entrenched bad practice in some social services departments and the fact that a number of local authorities do not agree with adoption in principle it is recommended:
Watchdog: There should be an independent watchdog to reassure the public that standards in adoption practice are improved. There is little confidence that social service departments will operate an effective self-regulatory system.
Training/re-training of designated social workers with a more affirmative attitude towards adoption.
Delays
One of ASIST's main concerns centres on clauses in the Bill which could hinder the implementation of its aims. It states in the introduction to the Bill `Any delay is likely to prejudice the child's welfare' and measures meant to speed things up in providing permanence and security for children, must not in practice become further layers of bureaucracy, or devices for delay.
Adopters
How will new time deadlines for adopters be operated? Will prospective adopters be turned away at an early stage in order to meet government waiting time criteria? Potentially good adopters may be overlooked and children will have to wait longer in care for a suitable match to be approved. It is better for adopters to wait than the children.
Adopters to have more continuity in the assessment process and to be kept informed of progress.
Adopters to be given access to complete life history files of their children.
Where do adopters/prospective adopters turn if they are not getting the support or information they need?
Matching
Matching is important, but if a suitable match cannot be found it should not take precedence over the opportunity to provide permanence with an adoptive family who may not be a ``perfect match''.
PART II
Adoption is not just about children in the care system and a glaring omission from the bill is any reference to baby adoption. The number of women choosing adoption will never be very high nationally but so few women opt for, or even think about adoption, because there is such a dire lack of information and support for them and a negative attitude towards adoption in society generally.
Many local authorities say, ``baby adoption is not part of their ethos'' and they have lost the necessary expertise to handle baby adoptions. They will have a much-increased workload to implement the Bill so it would seem appropriate to remove baby adoption from their remit.
The situation is quite different for women voluntarily relinquishing their babies to adoption of children from care. Funding should be made available for an improved baby adoption service and specialist, independent adoption agencies, should undertake it.
There should be obligatory counselling and information about adoption for women with unplanned pregnancies, delivered through professionals and organisations which are the first point of contact. The number of infants being adopted from care suggests that Social Workers, and other professionals, are over-optimistic about teenagers' ability to parent.
A national support service to be set up for women who want to consider adoption offering:
Care and support through the pregnancy
Care and support through the relinquishing process
Care after relinquishing.
National Curriculum
Information about baby adoption to be built into the National Curriculum. Physical Social and Health Education syllabus (Key Stages 3 and 4) sections on ``Sex Education'' and ``Psychological Aspects of Health Education.'' So young people already have some facts about adoption before they have to make a choice.
ASIST would welcome the opportunity to be consulted on the setting up of a separate baby adoption service and pre-birth counselling.
For further information contact
Hilary Howe: 4 The Paddock, Killams Lane, Taunton, Somerset TA1 3YA
Phone 01823 253026 Fax: 01823 324708 E-mail: hil-howe@fish.co.uk
Letter from Mrs. Frances Coller, B.A. Econ. , C.Q.S.W., Accredited Practice Teacher
I am writing to you as an individual who has worked in the field of post adoption for 6 years, as a manager, and previously in Social Work since 1975.
I would like to make some general comments about the Bill and then address in particular clauses 52-78 (pages 33-44 of guidance notes).
a) My experience has taught me that postadoption services need to promote removal of secrecy and stigma from adoption, and work towards openness and honesty. In particular the history and whole identity of the adopted person, including their family of origin needs to be acknowledged in order for the adopted person to integrate the various parts of their past into a whole and achieve positive mental health. To deny adopted adults a legal right to obtain identifying information regarding their birth records would be a very retrograde step and overturns all the lessons learnt from adoption practice over the past 20+ years. The Prime Ministers Review proposed a move towards greater openness but this is not followed through in the proposed Bill.
b) Secondly my experience has taught me that ``adoption is a lifelong process''. It is irrefutable that the needs of all parties to adoption change over time as each passes through different life stages. For example at the time an adoption order is made there may be a particular view regarding the child's need for contact or links with the birth family. However this may change as the child gets older, as the adoptive parents relationship with the child develops or the birth parents circumstances change. Hence the Adoption Standards acknowledge the need for there to be a plan for contact and for there to be provision for this to be reviewed. It is therefore inconsistent to consider that a contesting or relinquishing birth parent should make a decision around the time the adoption order is granted regarding ``protected information'' which is recorded and may well prevent that child, as an adult, accessing information regarding his/her origins. The Bill in my view is inconsistent with the philosophy behind the Adoption Standards.
c) I have extensive experience of supporting birth parents who are contesting or have contested the adoption of their child. Independent support for birth relatives is advocated under the new Adoption Standards. My experience in this field demonstrates that, given such support, birth relatives can achieve major shifts in their attitude towards the adoption and act as a resource for the child in providing background and ongoing information over the years.
I would have hoped to see the Adoption Bill reinforcing this approach rather than giving birth parents the right to withhold information (``Protected Information'').
d) Information from Court Records
The Prime Ministers Review indicated that provision should be made for courts to release information for adopted adults in cases where no other records survive. In my capacity as Service Manager at After Adoption I have recently been involved with the Manchester Care Centre subcommittee on Adoption (led by Judge Martin Allweiss) in delivering a protocol to guide Local Courts in this area, and would be happy to forward a copy of this protocol. However the new Adoption Bill would not seem to support this more open approach to accessing records.
e) Regarding post adoption support there needs to be greater clarity about the duty to provide a service following an assessment and clarification of whose responsibility this is i.e. the placing authority or the authority of residence.
f) My experience in working with adoptive parents and adopted children demonstrates that issues often arise about how and when to share difficult information regarding the birth family with the adopted child. However this is generally a question of timing and offering appropriate support to the adopters: my experience demonstrates that children benefit from being given truthful information about their family of origin at an appropriate stage in their development and in the context of a loving, supportive relationship with their adoptive parents. The question is how and when to share difficult information not whether to do so, and I would suggest that the withholding of information from adopters disempowers them as parents and is likely to have an adverse effect, ultimately, as the childs emotional development.
g) With regards to information to be shared with adopted adults, The Bill indicates that a general guide would be similar information to that currently shared by adoption agencies with adoptive families. This is helpful. However I would have major concerns if there were a shift away from sharing identifying information with adopters.
h) Crucially, there is no reference in the Bill to provision of Intermediary Services for birth relatives, promoted as good practice in the Department of Health Publication of August 2000. There has been no publicity on resources. I view this as a major omission.
In relation to specific clauses I would wish to make the following points:
Guidance Ref 134 Clause 52
I am concerned at this provision for an adoption order to be overturned it the birth parents marry and feel this could cause insecurity for adoptive parents and is open to abuse by birth parents.
Guidance Ref 136 Clauses 53-62
Please see above points a, b, f, g.
Guidance Ref 137
If sharing records becomes the responsibility of theagency, I would hope the Registrar General continues to hold backup information in the event that the agency records are lost or destroyed—many such instances have occurred in the past.
Guidance Ref 138
See points b, c and f above.
If an agreement is in force is should be open to renegotiation as time passes. This may involve the agency in tracing one or more parties. (See f).
Guidance Ref 140
As adopted person under 18 years should, in my opinion, be able to request information about his/her family of origin if he/she has the consent of the adoptive parent(s) or in exceptional circumstances without their consent.
It is unclear whether an agency may overturn the birth relatives request for protected information to be withheld.
Guidance Ref 144 Clause 54
Regarding protected information, see point a, b and c above.
I would suggest birth relatives be given a right to have their views regarding identifying information to be recorded, but these would notnecessarily be acted upon.
Guidance Ref 145 Clause 55
I feel it is important that adoptive parents be provided with Identifying
information regarding the birth family. See point (f) above.
Guidance Ref 147 Clause 57-58
At this point in time it is unclear what information the adopted person may be able to obtain from the court when he/she reaches 18 years,although this will not contain ``protected information''. See point (d) above.
Guidance Ref 150 Clause 60 Counselling
I would prefer the word ``counselling'' to be replaced by ``support'' as many adopted people are resistant to the idea that they need to be ``counselled'' in relation to a ``problem''
Thank you for consideration of the above points.
Memorandum from the Irish Adopted People's Association
Please accept our submission to assist the committee to enact ``best practice legislation''. Unfortunately we only became aware that the proposed legislation would so adversely affect adopted people in such a fundamental way today and have not had the opportunity to study the document in the detail that it deserves. If possible we would like to provide a more detailed document to the Committee at a later date.
In the very short time available to us we decided to concentrate on proposed Section 49 only.
We are of the view that this section represents an unacceptable retrograde step for adopted people and will prove to be poor legislation. We sincerely appeal to you to completely delete it and replace it with a new section to provide for the establishment of a ``Contact Veto Register''. The introduction of such a register has proved to work more effectively in other jurisdictions than the proposed section.
It is quite clear that Section 47 & 48 gives the adopted person very clear information rights but they are completely circumvented by Section 49.
``49. - (1) Neither an adoption agency nor a court is to give any information by virtue of section 47 or 48 without the agreement of any person (other than the adopted person) who can be identified from that information.''
Issues for legislators to consider when approaching this seemingly simple section:
How can/will agreement be achieved?
The practical implications of this measure.
1. The adopted person seeks his/her file.
2. Adoption Agency/Court staff retrieve the file (What qualifications/status staff is acceptable to make such a legally based determination?).
3. Adoption Agency/Court staff assess who can be identified from that information.(What process will be involved that is acceptable to all).
4. The adopted person is informed that staff member X has declared that persons 1, 2 and 3 can be identified from the file and therefore cannot release such information without the agreement from said persons 1, 2 & 3. (What right of appeal does the adopted person have? To whom does he/she appeal? Are exceptional grounds accounted for?)
5. The adopted person requests whom to seek agreement to the release of information on their behalf? Adoption Agency/Court staff or Court appointed staff, or does the adopted person employ their own staff?
6. Presumably the Adoption Agency/Court staff or Court appointed staff are requested to seek agreement from 1 2 & 3 to release the information - how? A standardised form witnessed by a notary? Verbally? If the person sought refuses to cooperate but does not make it clear whether or not they want information released - who decides? Through what process? What right of appeal exists?
7. Tracing people from details that can be as old as 50/60 years can be extremely time consuming, difficult and costly. Social Workers are not appropriately trained for such extensive investigations which can include cross-continental travel. If such persons are found to be living in, for example, Argentina - what happens?
8. Will a funding cap be placed on individual traces? If so, who decides?
9. Will time limits be applied to the amount of time allowed to conclude such traces?
10. If time limits are set and are not met - will the information sought be released?
11. If persons are located what next?
12. How will they be contacted?
13. Will they be contacted via telephone? If so, who makes the call? What content should there be?
14. Will they be sent a letter? If so what should that letter contain? What if the person is illiterate? What if they are blind?
15. Will an Adoption Agency/Court representative call to the person's home? (Which may cause distress to the person and their family and be considered an invasion of privacy). If so, what range will be acceptable - London, Paris, Munich, Toronto? Who decides the range, if any?
16. Will an Adoption Agency/Court representative call to the persons place of work? (Which may cause distress to the person be considered an invasion of privacy). If so, what range will be acceptable - London, Paris, Dublin, New York? Who decides the range, if any?
17. Should they be required to attend a meeting in an adoption agency office? Court? Council Office?
18. How many Adoption Agency/Court staff should be present at any such meetings?
19. Should the Adoption Agency/Court be obliged to have a legal representative present at such meetings?
20. Will persons requested to attend such meetings be advised that they can avail of free legal aid? Or will they have provide their own legal representation.
21. What happens where a person is located but:
A. Is found to be senile or otherwise not in command of his/her faculties? Will medical opinion be sought to dispense with their consent?
B. Is deceased? If deceased will the requirement for agreement be passed on to the next of kin?
C. Cannot be located?
The questions go on and on. This section in reality will create an unimaginable amount of extra bureaucracy. Costs could only be guessed at. The main beneficiaries of this section are the adoption agencies who will, if it is passed, have legal recourse to obtain endless funding from the DOH to enable themselves to fulfil these obligations. This section is an adoption agency's paradise i.e. ``We need more and more money to fulfil our legislative obligations.''
Are the DOH and Local Councils likely to quadruple existing funding of adoption agencies to fulfil their obligations under this proposed legislation? Doubtful! Does the High Court require its time to be tied up in more adoption cases?
Why not take the simple yet more effective approach of introducing a ``Contact Veto Register''? This is recognised among the adoption community internationally as best practice and is already in place in New South Wales and British Columbia. It is also to be enacted in early 2002 by the Irish Government, who are desperately trying to move away from this extremely costly, cumbersome and invasive way of providing adoption services.
In closing, we urge you again to reject Section 49 of this Bill on behalf of both British and Irish adopted people. Due to the freedom of travel between Ireland and the UK, many Irish-born people were adopted into UK families. These people, who had no choice or say in their adoptions, will find themselves suffering under the proposed retrograde provisions of Section 49, even as their Irish fellow adopted people come to enjoy best practice in the near future.
Memorandum from Monica Bradbury
I write in an independent capacity as an individual with both personal and professional experience of adoption, working with two of the leading post-adoption organisations in the UK. It is with regret that I feel compelled to preface my comments on the Bill, and in particular on the new provisions laid down in Clauses 53-62, with a strong objection to the very late stage at which these new provisions have been introduced and to the timing. The 28 day period for presentation of evidence actually falls within the consultation period on the DoH Draft National Adoption Standards and Practice Guidance, with adoption agencies, organisations and interested parties working hard to respond fully by 30 November.
The limited time-scale for presentation of evidence also makes it impossible to give due consideration to other aspects of the Bill, and other key changes, if one is to respond in full to the DoH invitation to comment on whether the right balance has been struck in the new provisions. Indeed, it is difficult to take at face value that
``the Government would welcome views on whether they strike the right balance''
when so many interested parties who might wish to comment will be unaware of the surprising turn that has been taken. The short timescale and the restricted availability of/access to the various items of documentation needed, in order to be able to attempt to understand what is being proposed, also strongly disadvantage anyone not enjoying access to IT facilities - reinforcing the digital divide again.
Scanning earlier draft versions of the proposed new legislation and evidence presented after the 1st reading of the Bill, I am at pains to grasp the basis on which the new provisions are being put forward. They seem, to me, to be at variance with much of what has been learned in recent decades from working with adopted adults and birth parents, and from a substantial body of research. In other countries where access to adoption files is closed or restricted, tens of thousands of adopted people (and birth relatives!) are still putting huge efforts into campaigning and lobbying for access to information they believe to be theirs by right. Indeed any restriction in access to birth records would seem on the face of it to flaunt the spirit of the individual right to identity laid down in the Convention on Human Rights, even if ways have been found to justify the provisions as being in line with the letter of the Convention.
If we move in the direction of restricting access rather than widening it, deciding who should and should not have right of access and, in different circumstances, which pieces of information might be withheld, do we not run the risk of accepting the unacceptable and condoning the obstruction of the individual's right to have knowledge of his or her genetic origins? It seems vitally important that this right is not further eroded by the provisions of the new Bill, as this would serve to strengthen the arguments of those still in favour of maintaining anonymous donation of sperm for IVF, and any other engineered procedures where genetic origins might be obscured. Surely it is time to move forward and fully recognise this knowledge as an inalienable right, and to consider with great caution moves which lead us backwards - in the direction of facilitating anonymous birth (``sous X'') which is still practised in France, and is an option recently made available in Hungary as part of a project aiming to reduce the number of abandoned babies. These are enormously difficult issues to debate, and I find it questionable that the needs and wishes of a tiny minority appear to have been given precedence over the needs and, indeed, the rights of the majority in the drafting of the new provisions.
CLAUSE 4
While the expansion of the right to assessment for adoption support services to a wider group of participants in adoption is a welcome step (assuming the nature of the assessment - yet to be clarified - is appropriate and is made by suitably qualified workers), my reading of the Bill and explanatory notes leaves me uncertain as to whether these persons also have a RIGHT to RECEIVE the services they may be assessed to need. It is unclear who will finance and deliver the support services. Clause 4 (4) ``... they (agencies) must then decide whether to provide any such services to that person''.
Clarification of where the responsibility lies for the provision and delivery of the services to the range of people with a right to assessment would be welcome.
CLAUSE 8: REGISTRATION OF ADOPTION SUPPORT SERVICES
It is not possible to glean from the provisions of the Bill and Notes the form such registration might take. Clearly it is desirable for the delivery of this delicate and specialist work to be regulated. I trust that any procedures imposed will provide for workers with many years of experience within the nationally recognised independent post-adoption organisations to be registered without unnecessary obstruction and/or financial burden to continue to exercise their professions.
There may be a need to spell out any differentiation the government wishes to make between what it refers to in the Bill as ``adoption support services'', and what are currently called ``post-adoption services''.
(Cross ref. with Clause 60) It should also be recognised that the term ``counselling'' has been, and continues to be, used to cover a wide variety of interventions. What has always been referred to in the adoption field as ``Section 51 counselling'' has until now been required to be done by social workers, the majority of whom are not trained or qualified ``counsellors''. This distinction has become desirable, necessary even, of latter years with the growth of the profession of counselling, but for the most part there is no distinction made and ``counselling'' is offered by all sorts of professional workers in the field of adoption, in many different circumstances. (Please refer to this paragraph in considering Clause 60.)
With regard to the registration of adoption support services, and to counselling, it will be important to recognise that large numbers of people affected by adoption wish to receive professional, and often longer-term counselling, over and above anything that can be offered by dedicated post-adoption organisations. Individuals must remain free to access this from any qualified counsellor with good understanding of post-adoption issues, who must - in turn - remain free to offer this service (Clause 60 also refers).
CLAUSE 52: REVOCATION OF ADOPTION ON LEGITIMATION
I was unable to understand the intention of this clause, and in discussion with a number of other individuals we were unable to agree on its meaning. I wonder how the provisions of the Bill will be put into practice when they are, not just in this instance, so inaccessible and complicated to understand and, in some cases, open to various interpretations?
As a general comment, while I appreciate that this is legislation and therefore framed in ``legalese'', I fail to see the advantage of such convoluted language that really is not very accessible. There are also so many exceptions and seemingly contradictory clauses, with frequent references to regulations as yet to become available, that one is often led to feel confused about the intention of particular provisions.
CLAUSES 53-62: DISCLOSURE OF INFORMATION ABOUT A PERSON'S ADOPTION
My preamble has highlighted some of the objections I have to the whole tenet of these new provisions. Further, if as is stated in the explanatory notes
``Many of the provisions on the disclosure of information provide powers for the making of regulations to enable the necessary detail to be set out in secondary legislation''
is it reasonable to elicit views and comments on provisions, the detail of which is yet to be determined? If the introduction of this raft of new provisions has been allowed to enter the process at this late stage, ensuring a limited exposure and curtailing full debate, how can we trust that ``the adoption world'' will be adequately consulted on any such secondary legislation?
In commenting on specific aspects of the new provisions in these clauses, I will also make reference to the DoH Key Changes memo, Annex A. (Unfortunately, this memo does not deal with the substance of each Clause of the Bill in chronological order.)
PT 15 (DOH)
—states an objective of ensuring consistency of access to information for adopted people—this seems contradictory, given that there are suggestions about withholding specific information and agencies having discretion to override such decisions to withhold;
—gives adoption agencies discretion ... to override a decision to withhold/disclose identifying information. In giving agencies this discretion, which cannot but contain an element of subjectivity, are we not returning to a lottery system such as that currently in place, where some agencies offer access to an adopted person's complete file and others are still very selective in what they disclose?
PT 16A(II) (DOH)
Standard package of information is disclosed to adopters as soon as possible after the adoption order. Surely this is too late. We seem to be moving back towards a more closed system. What happened to the sprit of openness and the opportunity for contact in adoption, to adopters and birth parents meeting one another? I have frequently spoken to adopters from whom information known to the agency was withheld at the time of the adoption, and who feel that they have been deliberately misled, both with regard to their expectations of life as an adoptive family and, specifically, about the early experiences and the likely future needs of the child/ren they have adopted.
CLAUSE 60 - COUNSELLING
See paragraph above, under Clause 8 on registration.
PT 16B (DOH)
Identifying info disclosed PROVIDED birth parents have not objected (Clause 61). There may, perhaps, be a very occasional instance where such disclosure might need to be withheld, BUT these very particular instances should be accommodated by a specific sub-clause or in regulations, NOT written into the provisions of the Bill as an option, albeit only available in prescribed circumstances.
Rather than denying adopted people the right to the information per se, there could be the option of a veto on contact - from either side. There would need to be a mechanism by which the veto could be reviewed.
PT 16C (CLAUSE 59(2 & 3))
This provides for disclosure to birth parents and others of identifying information where consent has been given by the person who would be identified. This, at least, is a welcome change.
There appears however to be no mechanism for reviewing decisions made by birth relatives, adopted people or adopters. A decision made, for example, by an adopted person at 18, will not necessarily be the same decision they would choose to make at a later age. I hope that the legislation does give specific recognition, somewhere, to this truth. Decisions made in adoption, as in any other walk of life, do change as people's lives evolve.
I wish to add a plea, at this point, for a provision pertaining to access to information by birth parents that will apply to birth parents whose children have been adopted since the 1926 Act and up to the present. Last autumn the DoH published guidelines on Intermediary Services for Birth Relatives, a document running to 90 pages, delivered after lengthy and wide-ranging consultation. We had assumed that this guidance would be enshrined in subsequent legislation, making the provision of such services a duty rather than a discretionary option. I have been unable to locate any such provision in the Bill and trust that you will take steps to ensure that it is there.
16D (CLAUSE 61 (1)(A))
DoH memo gives as an ``exceptional circumstance'' the situation where an adopted person has asked for identifying information, the birth relative has objected but the interests of the adopted person's health and welfare are such that he should have the identifying information. I see nothing exceptional in such a circumstance - both long-standing practice and recent research have shown that it IS in the interests of an adopted person's health - physical, emotional and psychological - and welfare to be given identifying information if s/he has requested it.
PT 17 (DOH)
``Many adoptions are now made on an open basis ... often the child knows from an early stage that s/he has been adopted''.
This reads as if it is only in open adoptions that a child is likely to know s/he is adopted, and suggests that we might still be in an era of closed, secret adoption where many people were told of their adoptive status on reaching 18, or discovered it even later in adult life. For many years now it has been widely accepted that the earlier a child knows of their adoption the better. I raise this point having read somewhere in the Bill, and being unable as I write to identify where, that such knowledge or information should be made available to an adopted person before their 18th birthday. If indeed my memory serves me correctly, any such statement would be well revised to the effect that this would take place, preferably, at a far earlier time.
There are a few further points I wish to raise that do not fall within the ``new'' provisions, and I apologise that there is not now time to identify the corresponding Clauses. (May I make clear that, because of the time restriction, there are whole sections of the Bill that remain uncharted territory to me! An absence of comment should not therefore be construed as tacit agreement with the provisions.) I hope the members of the Special Standing Committee will read through these last points and bear them in mind when the relevant Clauses are being considered, or in the case that no such clauses exist, will seek to redress any omissions that may have been made from the Bill.
THE NATIONAL CONTACT REGISTER
Charges should be standardised - at present the charging structure disadvantages birth relatives.
RESOURCES
It must be recognised that many, if not all of the provisions have significant resource implications. To give just one relatively minor administrative example, if local authorities are to be in sole charge of highly confidential adoption documentation, there must be safeguards put in place to ensure that they are equipped to carry out this function, and that records are securely stored. The practice of destroying original files and storing all records on microfiche should be discontinued.
It is time that a requirement was put in place for birth parents to be informed of the death of an adopted child, and for adopters to be informed of the death of a birth parent. Imagine the distress of a birth parent who endeavours to find information about their adult son or daughter, only to discover that s/he died many years previously and did not survive into adulthood, or of an adopted person tracing a birth relative only to fnd they have died long ago.
The obstacles placed in the way of siblings tracing one another also need to be removed. Brothers and sisters should have a right to know of one another's existence and to locate one another if they so wish.
Memorandum from The Christian Institute
The Christian Institute exists to promote the Christian faith and education throughout the United Kingdom. Our work is supported by 9,000 individuals across the Christian denominations including 1,600 Church leaders. Our public policy work has included research in the fields of family policy, divorce reform, religious liberties and education.
The Institute has a research project into adoption which is nearing completion. The project has considered the outcomes for children raised in single parent, step-families and same-sex couple households. Staff involved in the project include a Clinical Research Fellow working at the Institute.
Next year the Institute will publish a book reviewing the research evidence on same-sex parenting. This will be the largest review of the published research ever published in Europe.
The Government has strongly endorsed adoption and wishes to see many more children in care placed for adoption. We strongly agree with this approach.
We are saddened that many local authorities and other influential bodies within social work have dragged their feet on adoption. We were pleased to see that the Prime Minister also shared this concern:
``Too often in the past adoption has been seen as a last resort...Too many local authorities have performed poorly in helping children out of care and into adoption. Too many prospective parents have been confused, or put off, by the process of applying to adopt, and the time the whole procedure takes.''
The Government's intention behind the Adoption Bill is to encourage adoption. But we believe that the provision of special guardianship orders will be used to frustrate that intention. We fear that those local authorities which have not fully embraced adoption as they should, will use the special guardianship orders in preference to adoption.
There is a real danger that Clause 110 will be used as an anti-adoption measure and circumvent the present law which provides that only married couples or single people can adopt children.
WHO CAN BE A `SPECIAL GUARDIAN'?
Special guardianship orders, as laid out in the Bill, are, in effect, a combination of fostering with parental responsibility and rights.
The accompanying Explanatory Notes to the Bill states:
``The intention is that the special guardian has clear responsibility for all the day to day decisions about caring for the child or young person and for taking decisions about his upbringing. But the order retains the basic legal link with the birth parents, unlike adoption.''
There are six types of people who can apply for an order:
1. any guardian of the child;
2. anyone who holds a residence order with respect to the child, or has the consent of all those in whose favour a residence order is in force;
3. anyone with whom the child has lived for three out of the last five years;
4. where the child is in the care of a local authority, anyone with the authority's consent;
5. in any other case, anyone who has the consent of all those with parental responsibility for the child;
6. anyone else, including the child, who has the leave of the court to apply.
Categories 1, 2 and 5 above are perfectly reasonable. They cover people who already have some form of official responsibility for the child.
If a child is looked after by grandparents for a long time whilst his mother is suffering from a long-term and serious illness, then the parents could apply for an order to be made granting special guardianship to the grand-parents. It would then give the child some medium-term assurance, but allow him to return to his mother if she recovers.
If the mother of the child in the above example were the only parent alive and she were not legally competent to apply for an order, it would be open for the grand-parents to apply for an order to be made in their favour (under category 3 above) after the child had lived with them for a 3 year period.
UPGRADING TO SPECIAL GUARDIANSHIP
Under category 3 anyone with whom the child has lived for 3 out of the past 5 years can apply for an order. This would clearly include many foster parents.
In effect a foster parent could ``upgrade'' to become a special guardian. We accept that in some cases this would be entirely appropriate. But we have three serious reservations.
First, special guardianship could exacerbate the trend for fostering to be used by local authorities which have a bias against adoption. Long-term fostering with the prospect held out to foster parents of an ``upgrade'' to special guardianship could be used to bypass adoption.
Second, many potential adopters have hesitations about whether the young person they propose to adopt may turn out to be too difficult for them to handle. In exceptional cases where there are special circumstances fostering can be used as a prelude to adoption. With the new court order social work practice could tend towards accepting fostering only as a prelude to special guardianship.
There is also the danger that such an arrangement could become the rule rather than the exception. Six month to one year foster placements could be routinely used as a ``try before you buy''.
The third reservation we have is that the special guardianship order could be used to validate a foster placement which would never have been accepted as an adoption. For example if a child were placed with a same-sex couple for fostering by a local authority, the same-sex couple could not jointly adopt, but they could become special guardians.
UNDERMINING THE GROUNDS FOR ADOPTION
Similar concerns apply with categories 4 and 6.
Under category 4 anyone can apply for an order with the authority's consent if the child is in the care of a local authority. If the local authority has a bias against adoption, this opens up a clear route for adoption to be avoided.
With category 6 anyone can apply for an order, including the child, provided they have the leave of the court. Courts can receive advice which is also much less positive about adoption than is appropriate in many cases. If this happens the court could well make out a special guardianship order when adoption would have been better.
Since special guardianship is clearly intended to be a long-term arrangement there is the potential to undermine fundamentally the grounds for adoption which the government has stated that it does not wish to change.
We accept that special guardianship could have an important place for family relatives (uncles, aunts and grandparents). Saving this exception we believe that special guardianship orders like adoption should only be granted to married couples, or in rarer cases, single people.
Under the Bill special guardianship is open to unmarried couples, including same-sex couples. By definition this last option will deny young people a male and female role model. The law will create `gay guardianships'.
``GAY GUARDIANSHIPS''
Few working in the field of adoption could be unaware of the growing pressure for homosexual adoption. For many years the British Association for Adoption and Fostering (BAAF) have supported adoption by homosexuals. Yet BAAF's own research shows that 95 per cent of adoptions are by married couples: with only 5 per cent are by single people. This study used data from 80 per cent of local authorities.
Homosexual couples cannot jointly adopt, but there have been a tiny number of cases where a single person has adopted yet it was known to the court that they were part of a homosexual couple. But according to consistent press reports, in 1998 a study by Cardiff University researchers found that only 3 adoption placements in that year were to homosexuals.
The Government's own statistics show that only 0.2 per cent of households are headed by a same-sex couple. Moreover, all reliable evidence shows that homosexual parenting is bad for children.
THE EVIDENCE ON HOMOSEXUAL PARENTING
Many claims have been made about the homosexual parenting. Some researchers claim that same-sex parenting is at least as good as parenting by married couples. Some even say that it is superior.
The published ``research'' is in fact little more than anecdotal testimony in the clear majority of the studies. The bulk of the studies fall well below any acceptable standards for clinical research. Yet clinical research should be the level of rigor required since the claims concern the future of young people's lives.
Recent reviews have thrown light on the inadequacies of the research. The largest review ever carried out was published this year. Lerner and Nagai considered 49 studies.
Of the 49 studies examined:
—only 1 fully controlled its results to allow for other variables
—only 1 had a large enough sample for full statistical tests to be carried out
—only 4 compared lesbian parents with married parents
—21 did not even compare homosexual parents with heterosexual parents at all
—29 posited a hypothesis that cannot be tested
Lerner and Nagai therefore concluded that no study was academically rigorous.
All the reliable research evidence shows that children generally do best when raised by their married parents. For example, data from the 1988 National Health Interview Survey on Child Health in the USA, involving over 17,000 children, found that children with their original parents had fewer behaviour problems than children from broken homes (in terms of anti-social behaviour, anxiety and depression, headstrong behaviour, hyperactivity, dependency, peer conflict and social withdrawal). Ninety-eight per cent of those parents were married to each other.
In their book A Generation at Risk- Growing up in an Era of Family Upheaval Paul Amato and Alan Booth carried out an extensive long-term study of over 2,000 people and by the end of their exhaustive research were compelled to say that
``the rise in marital disruption[has]been detrimental to children''.
SECOND BEST FOR CHILDREN
The Health Secretary said on the Second Reading of the Bill:
``At present, children have only one choice of legal permanence outside the care system: mainstream adoption. The Bill introduces a further choice: new special guardianship orders. They give permanence to the child, by giving day-to-day responsibility for his or her care to the special guardian without severing all legal ties with the birth family. That new flexibility will give new opportunities to children who have been bypassed by the current adoption laws.'' (Hansard, House of Commons, 29 Oct 2001, col. 656)
Special guardianship orders are not permanent in the way that adoption is. A court can revoke a special guardianship order at any time. Whilst we accept the orders can have a legitimate use, there is a real danger that they will become ``adoption-lite''.
A special guardianship order is temporary and can be varied or discharged by a court. It does not provide the level of certainly that children need. It would undermine most of the other worthy provisions in the Bill, providing a means of bypassing adoption.
Only adoption is life long. Adoption works out because the adoptive parents and the adoptee set out to make it work. Seeing adoption as permanent is a positive help to working through the difficulties.
Where adoptions fail often the root of the problem is the multiple placements and disruption that a young person has experienced within the care system prior to adoption.
CONCLUSION
There is massive potential for special guardianship orders to be used to sideline adoption.
Under the Bill the door is wide open for homosexual couples to become guardians.
Given that only five per cent of adoptions are by single people, and that few doubt children need a male and a female role model, we question why there is such a clamour to allow unmarried couples to adopt?
Cohabitation has dramatically increased in our society, but it is still recognized by demographers an essentially temporary state leading in most cases to either marriage or break-up. People who live together very commonly marry once they have a child. A cohabitation lasts on average for just less than two years.
The research shows that promoting adoption by unmarried couples cannot be in the best interests of the child. Its advocates seem to be driven by an ideological motivation. Curiously, although only 3 adoptions a year are by homosexuals, local authorities are systematically recruiting gay foster parents.
The provision for gay guardianship orders is an attempt to bypass the existing law. The provision for special guardianship could be used to fundamentally undermine adoption.
Memorandum from the Adoption Research and Counselling Service
We do not support any proposed changes to the Bill which may result in the removal or erosion of the right of adoptive people to access all of their birth certificate information.
In Western Australia, a major review of adoption legislation led to the Adoption Act 1994 which recognises the rights of adopted persons and birth parents to access birth records and adoption information.
The Act extends from the premise that adoption should not be a secret process. It acknowledges that an adopted person has two sets of family history—adoptive and birth. When we operate adoption as a secret process we fail to take into account the fundamental rights of people to establish and know their personal identity and history. Such a treatment of adoption also fails to accept the psychological implications of relinquishment for birthmothers.
Present practice in this state reflects the following research, social and clinical findings:
—Birth parents and adopted persons often have a need for information about each other - it facilitates adopted persons to resolve issues around identity formation and to understand their relinquishment. It answers basic questions about physical and medical background. Information supports birth parents to resolve their feelings of grief and loss
—It is often very important for adopted persons and birth parents to have an opportunity to reunite - to support awareness of history, identity formation, resolve issues of separation, grief and loss.
—Knowledge of birth family origins can often strengthen and support the adoptive family
—Most people seeking information do not wish to intrude or disrupt other people's lives or family relationships. In fact the vast majority generally proceed through a third party or mediation process.
The inclusion of such legislation reflects the ethos implied in Australia's signing of the United Nations Convention - International Covenant on Civil and Political Rights. Essentially, information vetoes contravene the principle of the inalienable human right to information about origins.
We accept that right for all other citizens - why should adopted persons and birth parents not have the same rights of contact with another person that are accorded to any other citizen?
We believe it would be a retrograde step to make changes to the Bill which may result in the removal or erosion of the right of adoptive people to access all of their birth certificate information.
Evidence from the Law Society
The Law Society strongly welcomes the introduction of the Adoption and Children Bill and the opportunity to revise the legal framework for adoption in England and Wales.
As such the Law Society's evidence concentrates on the proposed legal process relating to adoption and special guardianship orders. In particular, the Society hopes that the government will provide to the Special Standing Committee a strong indication of the likely content of the detail of the reform to be contained in regulations.
1. CONSIDERATIONS APPLYING TO THE EXERCISE OF POWERS
We welcome the inclusion of the welfare checklist to all adoption cases, reflecting the Children Act 1989; the giving of greater emphasis to the relevant child's religion, race, culture and language in view of the terms of Section 22 of the Children Act; and that the child's welfare must be the court or adoption agency's paramount consideration in coming to a decision about the adoption of a child, again aligning adoption law with the Children Act.
However, we have particular concerns arising from clause 1 regarding the child's wishes and feelings, and dispensing with parental consent:
a) Child's wishes and feelings
Adoption is irrevocable and the most serious order that can be made in respect of any child and their birth family. In most cases adoption involves termination of direct contact between the child and his/her birth family and severs all legal rights and links with the child's birth family.
Clause 1(4)(a) does provide that the court or adoption agency must have regard to the child's ascertainable wishes and feelings (considered in the light of the child's age and understanding). However, despite the intention of the Bill to put the needs of children at the heart of the adoption process, it is disappointing that the child's voice is not given more prominence in the wording of the Bill.
The Society trusts that the Special Standing Committee will have in mind both Article 6 of the European Convention on Human Rights and Article 12 of the UN Convention on the Rights of the Child when considering the issue of the rights and representation of the child. Article 12 provides that `State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.'
The Society believes that it is essential that the wishes and feelings of the child are given the fullest possible weight (in accordance with the age and understanding of the child to ensure that the child's maturity as opposed to merely his or her chronological age is considered in judging the weight to be given to those views). Legislation should provide a clear mechanism to ensure that, in all cases, as in care proceedings, the child's view is fully and properly represented to the court, independently of the adoption agency, the applicants and the birth parents, where necessary.
Adoptions should proceed with sufficient and thorough investigation by the adoption agency and the court. A children's guardian should be appointed to investigate the child's welfare in every adoption case with an independent check of Social Work practice. If there is a problem with the proposed adoption for the child then the children's guardian would become aware of it and could alert the court as appropriate. Every child would have an `independent voice' through their guardian.
The Bill should be amended to provide that placement proceedings, which will be closely linked to care proceedings, and adoption proceedings be specified proceedings under Section 41 of the Children Act 1989. In specified proceedings the court appoints an officer of the Children and Family Court Advisory and Support Service (CAFCASS) for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his/ her interests.
This would ensure that the child's wishes and feelings would be independently reported to the court (as opposed to by the adoption agency, birth family or applicants) in order to ensure proper investigation and presentation of the child's views and welfare, for the purposes of properly discharging the court's duties under clause 1. Whether or not the Bill is amended in this regard, it will be imperative that CAFCASS has adequate numbers of sufficiently experienced children's guardians with expertise in adoption matters to ascertain the wishes of children and advise on their best interests.
The explanatory notes accompanying the Bill indicate that the Rules of Procedure will provide that the child shall automatically be a party to proceedings in placement order cases, and shall be able to apply to the court for leave to be made a party to adoption proceedings. We would welcome consultation on the rules at the earliest opportunity which may assist to address the Society's concerns, and to discuss with the Lord Chancellor's Department in more detail the rights of the children, their wishes and feelings and their representation in placement and adoption proceedings.
In Scotland the Adoption (Scotland) Act 1978 provides that an adoption order or an order freeing a child for adoption cannot be made in respect of a child aged 12 or over unless the child consents. The 1996 proposed Adoption Bill included the Adoption Law Review recommendation that children over the age of 12 must give consent to adoption unless they are incapable of doing so before an adoption order is made. There are clearly forceful arguments both for and against requiring a child of a certain age to consent to adoption which would need to be carefully considered and balanced. Clause 103 of the earlier Bill provided that a child must be notified of an application for an adoption order where he/she has attained the age of 12 implying party status for those children. This provision does not appear in clause 126 of this Bill. It would be helpful if the government could explain the omission and the reasons for this change in the new Bill, and its current thinking on the issue of consent of older children.
b) Dispensing with parental consent
Adoption is the most fundamental interference with the right to family life from the point of view of the child's birth family, clearly falling within Article 8 of the European Convention. The effect of clauses 1(8)(c) and 50(1) is that the child's welfare should be the paramount consideration even in decisions about dispensing with parental consent to adoption. The Society believes that there needs to be a clearly defined threshold to be crossed before parental consent can be dispensed with.
Whilst the position of the child's relatives and the child's relationship with them is taken into account in clause 1(4)(f), the Bill makes no differentiation between cases where the child's parents consent to adoption and cases where they do not.
Whilst the Society recognises that the unreasonableness criterion in the present legislation has proved difficult to interpret and apply, the Society is concerned that the proposed test in relation to dispensing with parental consent is too broad and gives too little encouragement to consider alternative options.
We suggest that the test to be applied should be that the court must be satisfied that the advantages to the child of adoption are so significantly greater than the advantages to the child of any alternative order that could be made as to justify overriding the wishes of the parent. This reflects the test devised by the Adoption Law Review after wide consultation and is widely supported by organisations across the adoption field.
The Society welcomes the changes to the Bill in relation to the making of placement orders, aligning these cases with care proceedings under the Children Act, with intervention only where the grounds of significant harm to the child are, or have previously been established. However, we would strongly urge the Standing Committee to reconsider the Bill's current approach to overriding the parents' wishes on the making of adoption orders in order to ensure Human Rights Act compliance.
2. AVOIDING DELAY
The Society notes clauses 1(3) and 104 in relation to avoiding delay. We would be particularly interested to contribute to consultation on case management rules. In relation to both courts and adoption agencies there must be sufficient resources to avoid delay, but care needs to be taken to ensure that the avoidance of delay does not lead to viable alternatives to adoption being ignored.
3. PLACEMENT FOR ADOPTION AND ADOPTION ORDERS
The Society welcomes the abolition of freeing orders because of the possibility of European incompatibility, the highly unsatisfactory legal status given to children subject to such orders and their lack of flexibility to meet current circumstances.
However, the provisions for placement for adoption are extremely complex, and although they have been somewhat improved since the earlier Bill, will require further consideration and consultation during the passage of the Bill, in order to ensure that they will work with sufficient procedural safeguards for children and their families.
The Society has particular concerns about the clauses highlighted below:
a) Clause 23 Revoking placement orders
It should be possible to make an application to revoke a placement order during the first 12 months of the order being made. There could be a change in circumstances during the period before the child is placed which would justify revoking the order on the basis that it is no longer in the child's interests. The leave requirement should be an adequate safeguard.
A placement order should be revisited by the court, with the possibility of revocation, if an adoption order is not made within a specified time following the making of the placement order. Clauses 20(4) and 23 fail to adequately address this issue. Under the Bill a child could be subject to a placement order, with no placement or adoption, until automatic revocation when they are 18.
b) Clause 24 Parental responsibility
This clause provides that parental responsibility is given to the adoption agency when a child is placed for adoption with parental agreement, when the agency has been authorised by the parents to place the child for adoption or while a placement order is in force; and to the prospective adopters while the child is with them, subject to any restrictions on the exercise of parental responsibility imposed by the agency.
This would result in parental responsibility being held by the agency, the prospective adopters and any parent or guardian with parental responsibility. Not only is this confusing, we believe that it is undesirable, in the circumstances envisaged by clause 24, that there should be no scrutiny by the court. Parental responsibility is not conferred in other circumstances (save for in the case of parental responsibility agreements) without such scrutiny. The court should ensure the rights of the child and the birth parents are protected. There should be independent welfare advice on the child made available to the court at this stage.
We also do not understand why, if parental responsibility was to be conferred on prospective adopters in the circumstances envisaged, the ability of the local authority to restrict the exercise of parental responsibility in clause 24(4) should not reflect that in section 33(4) of the Children Act 1989. This provides that while a care order is in force the local authority may not restrict the extent to which a parent or guardian may meet his/her responsibility to the child unless the authority is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.
c) Clause 25 Contact
The Society is happy with this clause in principle, but will wish to discuss further the practicalities of how children will make an application for contact under this provision.
d) Consequences of placement
The Society seeks clarification of whether a parent or guardian of the child may apply for other section 8 orders, other than contact which is dealt with in clause 25.
Clause 28
The Society would question whether a placement order, which simply confers upon an adoption agency the ability to place a child for adoption, should supersede a care order and whether local authority obligations to implement and review a care plan should cease.
The Bill fails to fully address the legal consequences of the revoking of a placement order in terms of the revival of orders immediately in place prior the placement order and what will happen to the relevant child. The position in law of, for example, children subject to a residence order or a supervision order, or long accommodated children subject to no order immediately before the placement order; and their needs and who will have responsibility and care for them after revocation needs to be fully thought through.
e) Clause 29(6) General prohibitions on removal
The Society seeks clarification of the reasons for excluding section 20(8) of the 1989 Children Act from these provisions.
f) Clause 41 Preliminaries to adoption
This clause creates a discrepancy with the Children Act. Under the Bill local authority foster parents in non-agency cases can apply for an adoption order if the child has lived with them for a year, or within a shorter period if the court gives leave. Foster parents however cannot apply for leave to apply for a residence order under Section 9 of the Children Act unless the local authority consents; they are a relative of the child or the child has lived with them for 3 years (to be amended to one by clause 108) with no court discretion. The Society considers that there should be consistency in order that foster parents can apply for leave to apply for a residence order within a shorter period if the court gives leave.
g) Clause 47 Adoption by unmarried couples
The Society believes that limiting adoption to married couples and single people obscures the valuable contribution which unmarried people in cohabiting relationships make to the adoption of some children, often those with special needs. It also fails to take account of the reality of modern family relationships. There should be no discrimination against unmarried couples and same sex couples wishing to adopt. At present such adoptions take place on the basis that one of the couple adopts the child. The other person is often given a joint residence order which confers parental responsibility. There is no reason why joint adoption should not be possible.
h) Clause 50 Parental consent to adoption (also see dispensing with parental consent above)
Any consent given by a mother to an adoption order is ineffective if given within 6 weeks of the child's birth. It seems illogical for a similar provision not to apply in relation to a mother's giving of consent in relation to placement for adoption. Under the current Bill such a consent would be valid and we believe that the mother would be committing an offence if she subsequently changed her mind and attempted to remove the child.
The Society believes that it should be possible to apply to the court for leave to withdraw any consent to the placement of a child for adoption or an advance consent to adoption, with leave of the court.
It is impossible for the large majority of parents to state that their consent is given `freely, unconditionally,...'. Clause 50(5) is therefore problematic and may lead to unnecessarily contested cases. The wording must recognise that parents may understand that adoption is the best permanent arrangement for their child, but this does not mean that they wish to or wish to be seen to `give up' their child. We support the BAAF's recommendation that the phrase `without improper duress or inducement' be inserted in place of the current wording. For the avoidance of doubt, we consider that the words `and with full understanding of what is involved' do not require amendment.
The Society considers that all fathers should generally be included in the adoption process unless exceptional circumstances apply, and that, in the interests of due process and justice, unmarried fathers should not be marginalised. We are particularly alarmed by clauses 50(8) and (9) which have the combined effect that an unmarried father obtaining parental responsibility after the mother has consented to placement is to be treated as also having given consent at the same time. This raises issues around Articles 6 and 8 of the European Convention and the Human Rights Act. As stated earlier, adoption is by its very nature hugely disruptive of family life and, as a result, under European jurisprudence the interests of both parents must be respected. The European Court has previously found no justification for legislation which allowed the mother of a child to place that child for adoption without the father's knowledge or consent. Moreover, adoption determines `civil rights and obligations' and therefore the fair trial requirements of Article 6(1) apply to adoption proceedings.
4. SPECIAL GUARDIANSHIP ORDERS
The Society broadly welcomes these provisions which widen the options of permanency for children and non-severance of the child's legal connection with their birth family, particularly the new provision for financial support of children while in the care of their `special guardians'.
Unlike the earlier Bill, this Bill does not provide for proceedings where there is any question of the making, varying or discharging of a special guardianship order to be specified proceedings under section 41 of the Children Act. The Society asks that the reasoning behind this change be set out by the government for the Committee. The Society considers that the making of such an order strongly interferes with family life and that Article 8 of the European Convention is highly relevant. A special guardian acquires residence and parental responsibility to the exclusion of any other person with parental responsibility including birth parents with parental responsibility. The Society does not therefore agree that these orders are akin to private law children orders. The Society believes that the child must have a voice independent of that of the local authority and the birth family.
The Society suggests that 14 A(9) under clause 110 (1) should be amended to provide that where the court is considering making a special guardianship order of its own motion it must ask the local authority to investigate the matter and prepare a report dealing with the matters set out in 14 A (8).
Under Clause 110 (1) 14 D (6) a birth parent cannot apply to vary or discharge a special guardianship order until at least one year has elapsed since the order was made. This seems illogical since any person with a residence order, for example, a step parent or grandparent could do so within a year.
The Society seeks clarification as to whether it is intended that other persons with parental responsibility will be able to apply as of right for section 8 orders while a special guardianship order is in force.
5. CARE PLANS
The Society may wish to make representations on clause 112 further to the outcome of the pending relevant House of Lords case, Re W v. B; Re W, regarding the division of responsibility between the courts and local authorities.
For further information, please contact:
Shona Ferrier, Parliamentary Advisor
Tel: 020 7320 9546,
email: shona.ferrier@lawsociety.org.uk
Rachel Rogers, Policy Advisor
Tel: 020 7320 5815,
email: rachael.rogers@lawsociety.org.uk
Letter from A. N. P. Speight, consultant paediatrician, North Durham Health Care NHS Trust
I am a consultant paediatrician with a long standing interest in/experience of child abuse and the emotional needs of children.
I acknowledge that the issues covered by this Bill are complex and it is difficult to generalise. I welcome the proposal to increase the prospects for access for ``innocent'' parents usually fathers.
However, I am very concerned that even before this new Bill the courts are already ``getting it wrong'' by making a presumption that access is beneficial in circumstances where it clearly is not, and is against the child 's wishes and interests.
Last week I saw a 10 year old girl whose asthma has worsened to a dangerous extent due to the threat of court-imposed access to a father guilty of longstanding marital violence. She feels betrayed by the Court Welfare Officer in whom she confided, and mother 's first lawyer adopted a laissez-faire approach by second-guessing the court 's likely judgement and conceding the issue without a struggle.
Could I urge the committee to re-state in the strongest possible terms that the guiding principle for the courts should be ``the best interests of the child''. The short and medium term view of this should dominate thinking, as children's emotional needs for security are urgent. The child's wishes should be given much greater weight and once ascertained should hardly ever be over-ridden by the courts.
Memorandum from the National Children's Bureau (NCB)
NCB warmly welcomes the publication of the Adoption and Children Bill and many of its proposals—in particular, the belated provision to bring adoption legislation in line with the Children Act. Though this Bill has been long awaited, enactment will lead to some complex changes which need careful consideration; and the Committee will have to weigh the interests of the various individuals and agencies involved in the process to ensure that the best interests of the child always come first. In fact, the Government has stated that this a `child centred bill' which seeks to ensure that the child's interests are paramount. This intention, however, may be undermined by the measures outlined below, as well as the fact that much of the detail (and its potential impact on practice) is unknown to us and will only emerge within Regulations.
ADOPTION SUPPORT SERVICES
Clauses 4 to 5
NCB regards post adoption support as crucial in meeting the objectives of the Bill and ensuring that more families come forward to meet the very specialist needs of the children who currently wait for families. There is an assumption in the Government's plans that there are families out there who understand about these complexities and want to come forward and have the skills to care for these children. However, we believe that it is not the recruitment processes which prevent families from proposing to become adopters; adoptive families will only come forward for children with complex needs and for sibling groups if they know that they will be supported in their task. The best recruiters are other adoptive families; if they are seen to be lacking access to the support they need, others will not come forward.
The right to access to support services must be strengthened and extended to include health and education services if the right placements for children are to be found, and sustained. This is especially relevant in relation to adoption from care, since many of the children will have special needs and/or behavioural problems, as well a fraught family history.
NCB believes that this right to support must be extended not only to the new guardianship orders but also residence orders currently made under the Children Act 1989. It is important to learn from the experience of the relative non-take up of residence orders; carers have been reluctant to take full responsibility for children without an assurance of support from the local authority. This is not just about financial support. Carers want help with issues like managing contact arrangements as well as the safety net of support services at later stages of the child 's development.
UNMARRIED COUPLES ADOPTING CHILDREN
Clauses 48 to 49
NCB believes that children should be able to be adopted by both parents where they are not married. Children are very able to detect an inequality in a relationship; where only one parent is their adopted parent, a situation becomes ripe for conflict. If the Government's intention is to increase the number of potential adopters and encourage more to come forward for the children described, this antique provision limits the pool for reasons completely unrelated to the needs of the child. Social workers are able to assess the likely permanence and strengths of relationships and do this within all assessments. Clearly some relationships break down but this also occurs within marriage. The importance of ensuring continuing relationships for the child with both `parents' remains vital and this has to be undertaken within the present legislation concerning unmarried couples.
DISCLOSURE OF INFORMATION ABOUT A PERSON'S ADOPTION
Clauses 53 to 62
NCB considers that an adopted child's right to know about him/herself is twofold:
—S/He has a right to know that s/he has been adopted—a facet of the right to respect for a private or family life under Article 8 of the European Convention on Human Rights; and
—S/He has a right to know who s/he is, and where s/he comes from—a right that most of us take for granted. Children need a sense of identity, and identity is intimately linked to an understanding of family origin and a sense of family history.
Sect. 26 of the Children Act 1975 gave adopted adults the right to have access to information from their birth records. Yet Clauses 53 to 62, and Clause 76, of the Adoption and Children Bill reverse the adopted adult 's right to information which has been available for 26 years. The Dept of Health has referred to these measures as safeguards for a minority of birth relatives who wish to keep their identity secret; and they assume that adoption agencies will, in the majority of cases, provide identifying information upon request in addition to the `standard package' of information about the person's adoption and background. We believe that these extremely complex provisions are too prescriptive and may lead agencies to restrict access to identifying information with no just cause.
The case law upon which these safeguards are based refer to an adult diagnosed as suffering from a personality disorder who was considered a potential danger to his birth mother; he appealed against the Registrar General 's refusal to disclose information for a copy of his birth certificate, and lost. We do not believe that an exceptional circumstance—and a case in which the woman concerned remained unidentified—should deny the majority of people the right to information about themselves.
We know that successful adoptions are dependent on open information concerning the child1, and the developing and maturing child having their questions answered by their adoptive parents. Secrecy in any family is very difficult to handle.
Within the current provisions of the Bill, the child will not have an entitlement to this information, so his understanding of his family history and identity will be limited. If the Government's intention is to increase the numbers of adoption from care, it must reconsider its position and recognise the child's need and right to know about himself, and to access information about the family which he can and will remember. Children adopted from care already possess a copy of their birth certificate as part of their life story work.
Most children will enter adoptive families having been prepared for adoption, and social work practice has evolved to ensure that children have this personal history available to them when they are able to integrate it. Part of this work will have involved helping the child to understand the reasons for his/her adoption. This is part and parcel of preparing the child for adoption and enabling him/her to express informed views and wishes. The Bill rightly places an emphasis on the child's views and wishes being considered but then fails to consider what this might mean in practice. The importance of direct work to help children to understand what has happened to them cannot be underestimated, and this requires access to information which in our view is part of their right and heritage. The work will always be led by the child—their questions and their wish to know—but it is important that the child knows that this information is there for them when they want it. It should be remembered that however difficult the history of the child, knowing the truth is more bearable than not knowing and the fantasising which can undermine an excellent adoptive placement.
SPECIAL GUARDIANSHIP ORDERS
Clause 110
NCB welcomes the provision of `guardianship' but warns that should not be seen as a second class adoption service, responsive only to the needs of certain categories of children or young people such as older children or children from specific ethnic or cultural groups. It should be an option for individual children which will meet their assessed needs where no other order will do so. We would also like some clarity about the difference between the new guardianship order and the existing residence order.
Clarification of the combined effect of being looked after and the immigration status of unaccompanied asylum seeking children must be considered at an early stage of this Bill. Some local authorities have large numbers of unaccompanied asylum seeking children in their looked after population. Will they be eligible to be looked after by a `special guardian'? We hope the Government will avoid the experience of implementing the Children (Leaving Care) Act 2000 and preclude a repeat of the situation where the publication of the guidance was held up because of unresolved issues relating to the eligibility of unaccompanied asylum seeking children.
Alison Williams
Principal Officer, Children in Public Care
National Children's Bureau
Note:
1 Howe, D., and Feast, J. (2000) Adoption, search and reunion: the long term experience of adopted adults. London: The Children 's Society.
Memorandum from British Agencies for Adoption and Fostering
1.l This memorandum is in addition to a separate memorandum submitted by BAAF. This current memorandum has been written after consultation with members of BAAF's Research Group Advisory Committee. Some members of this committee were extremely concerned about the issues outlined below, and have informed BAAF as to their views in these matters. The BAAF research group committee members are academic researchers and research practitioners who have extensive experience and knowledge about adoption. Because of the very brief consultation period available, the committee has not had time to fully debate the contents of this memorandum. However, the members mentioned in section 5 below have all expressed agreement with the contents of this memorandum.
1.2 This memorandum addresses two issues: the right of adopted people to obtain a copy of their original birth certificate, a right that will be curtailed by clauses 53-62 and 76 of the Adoption and Children Bill; and the issue of the provision of intermediary services to birth relatives, We believe very strongly that adoption is a lifelong process and are fully supportive of the statement in clause 1 (2):
``The paramount consideration of the court or adoption agency must be the child's welfare throughout his life''.
However as the Adoption and Children Bill stands, in respect of the above issues it fails to do this.
2. THE RIGHTS OF ADOPTED PEOPLE TO ACCESS BIRTH INFORMATION
2.1 We are dismayed to discover that clauses 53-62 and 76 propose fundamental changes to the way in which adopted people are currently able to access essential information about themselves, their identity, and their birth origins. We argue that the proposed legislation is a retrograde step as we know of little or no empirical evidence suggesting the need to curtail adopted people's rights in this manner.
2.2 The consequences of clauses 53-62 and 76 will be that some adopted people will be denied the most basic of rights: access to information about their own birth. Should third parties be allowed to veto the release of identifying information, in some cases adopted people will be unable to obtain a copy of their original birth certificate, and hence will be denied a right that is taken for granted for all other people in society. Adopted people currently have these rights under Section 5 1 of the Adoption Act, 1976, and we would argue that curtailing these existing rights is a very serious matter that would only be justified if there were convincing evidence that it was necessary to do so. We know of no such evidence. The consensus in the research literature is that the current law is working well and that it has been to the benefit of adopted people.
2.3 In contrast, there is an absence of any research findings that endorse the proposed change in legislation. We know of no research studies that have indicated any foundation for fearing that retaining adopted peoples' rights to identifying background information will negatively impact on the welfare of birth relatives. We would argue that the existing policy is effective, indeed it is a policy aspired to in other countries, and there is no empirical support for a change in policy.
2.4 These provisions are new and the Department of Health is interested to ascertain whether they strike the right balance. It is our view that they do not and that further, within the balance of rights of all parties involved in the adoption process, they are disproportionate to the evidence from research and practice that informed the Houghton Committee 's recommendations and that have been developed since. These clauses are inordinately complex and provide for an extremely prescriptive framework, which will almost certainly result in a return to secretive and restrictive adoption practice. The Committee needs to consider the likely effect of these provisions and weigh this against any evidence and research into adverse effects of the current provisions. As stated before we are unaware of such evidence.
2.5 The Secretary of State for Health has made a statement as required by the Human Rights Act 1998 that this Bill is compatible with the European Convention on Human Rights. We believe that these new provisions and in particular clause 58, represent a breach with the convention right enshrined in Article 8 which includes the right to access to information about a person 's own identity. This principle is also enshrined within Article 9 of the United Nations Convention on the Rights of the Child. It seems incomprehensible that a Bill that is supposed to ensure that the welfare of the child is given paramount consideration throughout his or her life, should propose curtailing an adopted person's rights in this way.
2.6 In its memorandum to the Committee, the Department of Health refers to the case of R v. Registrar General, ex parte Smith as evidence of the need to change the law on the issue of access to information. Far from providing evidence in support of the proposals before the Committee we feel that this case demonstrates how well the current system is working and further that the decision by the Court of Appeal in this particular case was the right one. If the new provisions were enforced the Government would seem to be making a blanket provision that will affect all adopted people both directly and indirectly on the basis of a handful of cases that are best dealt with in the courts. We would draw the Committee 's attention to the case of M S Gunn-Russo who won her challenge to the decision of the Nugent Care Society to refuse her access to its relevant records about her adoption in July this year.
3. INTERMEDIARY SERVICES FOR BIRTH RELATIVES
3.1 It is now over a decade since the adoption review first began. Professionals in the adoption world have been looking forward to adoption legislation, which would meet the lifelong needs of all adults who have been affected by adoption, in particular those birth mothers who felt they had no choice but to relinquish their babies for adoption when the social climate was such that single parenthood was frowned upon.
3.2 The Government has made a commitment to overhaul and modernise current adoption legislation. It is crucial therefore that adoption legislation takes a lifelong perspective: unless the provision of intermediary services are acknowledged in a legislative framework then this will not be achieved. For many years now some adoption agencies and local authorities have provided intermediary services for birth relatives, but it is a lottery. There needs to be a statutory duty on local authorities and adoption agencies to provide intermediary services.
The Department of Health has already issued practice guidance about this area of work for those agencies choosing to provide this service. The Children's Society research (Howe & Feast, 2000, Adoption, Search and Reunion) provides evidence of the benefits and positive outcomes for non-searching adopted people and their birth and adoptive relatives and confirms the need to provide intermediary services for birth relatives. Whilst it is important that adoption legislation meets the needs of children today it must also meet the needs of all adults who have been affected by adoption in the past and who continue to experience the life long issues it raises.
4. CONCLUSION
4.1 We would strongly argue that the proposed adoption bill should retain the rights of adopted people to have access to information about their background, including identifying information about their birth parents. Exceptional situations where allowing the adopted person to exercise this right would seriously endanger a birth relative could continue to be dealt with on an individual basis by the court, as happened in the case of R. v. Registrar General, ex p. Smith, [1991] 2 All E. R. 88.
4.2 It is unlikely that there will be another opportunity in the near future to modernise adoption legislation to reflect the attitude of contemporary society. It is crucial that the Adoption and Children bill comprehensively legislates for the services required that will truly meet the needs of all people, both children and adults, affected by adoption.
5. Members of BAAF's Research Group Advisory Committee who have advised on this memorandum
Julia Feast, The Children's Society
Christine Groothues, University of London
Barry Luckock, University of Sussex
Dr Elsbeth Neil, The University of East Anglia
Gillian Schofield, University of East Anglia
Dr Peter Selman, University of Newcastle
Dr Nigel Thomas, University of Wales, Swansea
Professor John Triseliotis, University of Strathclyde
Memorandum from After Adoption Yorkshire
After Adoption Yorkshire (AAY) offers independent post adoption support to all parties involved in adoption.
Last year AAY received 750 new requests for a service; one third of these were from birth parents.
ACCESS TO INFORMATION
We have major concerns about the proposal to deny right of access to the original birth certificate to the adopted adult if the birth parent/s do not wish for this. Our concerns arise from our reading of the relevant research in this area but also Corn our experience of providing post adoption services:
1. Removal of the right that currently exists will result in very real difficulties for some adult adopted people who are involved in searching for origins information. Findings from research, including the most recent major study of the experiences of nearly 500 adopted people `Adoption Search and Reunion—The long term experience of adopted adults' by Feast and Howe (2000), consistently show the need for adopted people to be able to access their full records, including identifying information about their birth relatives. It is interesting to note that significant numbers of people who embark on the search believing that they will only want minimal information go on to seek face to face contact.
2. Being a birth parent/relative of an adopted person involves a life-long loss experience. Many birth parents do not feel that they had a choice in the decision to part with a child for adoption. However it is also true to say that few if any adopted people had a choice in whether or not they were adopted. It is therefore wrong for there to be any move that removes any further choices from them, especially ones which would result in them denied access to identifying information about their origins.
3. In adoption there are many different perspectives and views to consider. Some adopted adults have life long identity and rejection issues in relation to their adoption. We consider that paramount consideration needs to be given to the adopted person while making sure that good quality support and counselling services are available to all parties involved in the adoption experience.
4. It is important to recognise that many people's initial reaction to a contact from their adopted child is not the same as their considered response. Post adoption services have developed considerable skill in assisting with the whole process of making contact and then managing the ongoing reactions as the contact unfolds. Providing that such skilled services are available for those birth parents who need this, it is our experience that the vast majority of birth parents welcome the fact that their birth child is seeking information, and perhaps contact, with them.
5. In our view, the overwhelming response of most birth parents to this proposed change to the law would be that it should not be allowed to proceed. We are of the opinion that the vast majority of birth parents believe that the right of adopted adults to have their original birth certificate with no power of veto from anyone should be maintained.
6. I enclose letters from some of the birth parents who use our services who wish to submit their evidence.
Position of birth relatives
7. The adoption and Children's bill is not offering appropriate rights to a service for birth relatives. The right to Intermediary services for birth parents should be enshrined in legislation rather than left to regulations. Adopted adults are clear about their wish to know when a birth relative wishes to make contact with them, whether or not they choose to take up the contact.
8. Adoption is a complex process and even more so when it is in the context of public care. All parties require skilled help at the reunion stage of the process. To prevent individuals from using underground methods that cannot be monitored and mediated their needs to be a regulated process and procedure for facilitating birth relative initiated contact .
Jody Sheppard on behalf of After Adoption Yorkshire
LETTER FROM MRS. MARGARET RHODES, BA, MA, CertEd, DipAdEd, MIL, DipTrans
Dear Sir
I write in connection with the proposed inclusion in the Bill of a provision which would prevent adopted children having access to their original birth certificates in cases where birth parents do not wish for this to happen.
I speak as a birth mother whose daughter, given in adoption, has been able under the present law to obtain her original birth certificate and make contact with me.
The experience has been very difficult for me and there have been many times in the past when I have almost wished that she had not done so. Over the seven years which have elapsed, however, since the initial contact, I have come to value the knowledge I have gained about her life and find that it has a healing power.
More importantly, however, I believe that it would have been very damaging for my daughter if information about her original family had been denied to her. All expert psychological advice along with the findings from research and the opinions of professionals working in the field of adoption would support the view that human beings need to know who they are and where they come from. However good the adoptive home there appears to be a need for human beings to know their origins which is of such importance that it should properly be termed a ``human right''. Adoptees are the people to be consulted on the matter for they are the ones who know how it feels to have others in control of their lives: it would be a retrograde step to take from them even more control.
The feelings of birth parents are quite understandable. They, too, often feel that for them there was no choice in the matter of whether or not their children were placed for adoption. Birth mothers frequently feel ``used'' by others and society in general -as indeed they often have been. They were also misled in many cases about the effect which having their children placed for adoption would have on them in later life (although I do not wish to suggest that there was malicious intent in the advice given to them). After the adoption they lose all their legal rights in terms of the child and their loss is of mammoth proportions—like losing a child through death—possibly worse.
It has to be said, however, that they were adults (albeit sometimes very young adults) when they were faced with such a painful experience—but the children have felt themselves to be ``abandoned'' by their natural parents (and it would appear that it is almost impossible to prevent their sense of abandonment) whilst still at an early age and have had to deal with the experience as children. The possibility of psychological damage is evident.
Parents in ``normal'' situations sometimes find themselves faced with the task of bringing up an ``unwanted'' child. The children may have been conceived in very unfortunate circumstances—possibly ones in which the mother had no choice or control. She is expected to face up to her parental responsibilities in spite of the extent of possible abuse. Birth parents have parental responsibilities of a moral nature even when legal rights have been withdrawn. The interests of the ``child'' must come first.
Letter from Janet Hilton
Dear Mr Davies,
Re: Section 58 (6)
With reference to Section 58 (6) I felt the need to write to you to express my concerns about this proposed change. In my view this would be a negative step to take.
As a birth mother I believe that adoptees do have a right to information from their records. It is also essential that there are good and accessible post adoption counselling and intermediary services available.
Once contact has been made, through an intermediary, the birth family member has the option whether to take this further or not.
Letter from Clare Baldwin
The Governments new Adoption Bill has put forward the proposal to deny adopted adults access to their original birth name. I would like to put forward my views on this issue:
I was adopted at the age of five months, and grew up in a loving and secure adoptive family. I adapted to my new circumstances relatively well, although in common with many adopted people, was very aware that I was somewhat different to the rest of the family. I am physically different, with a different build, and different hair and eye colour, and am not like the rest of my family either temperamentally or in my particular abilities and talents. At times I found this situation difficult to deal with, as it made me feel somewhat alienated and isolated from those around me.
I was told that I was adopted from a very early age, and as instructed by Social Workers at the time, my parents told me that I was special and chosen, and reassured me that I was a part of their family. As I grew up I realised that this was simply not true as I had once been part of another family, and I had not been chosen by my parents—they had wanted another child, any child, and I had been relinquished by my birth mother. There was nothing natural or normal about this process.
When I was 25 years old I needed a passport, so decided to find my birth certificate. What I found was a short version, with no parents names. I felt as if my past had been forcibly wiped out, and that I was being denied access to an important part of me, and one which every one else takes for granted.
Some years later I had to have Section 51 counselling in order to gain access to my birth records. In every other respect I am responsible and in control of my life, yet this information, which is about me, and the circumstances of my birth, were denied to me as a right. I had to go through the Section 51 process with a Social Worker, as if my past was a problem that society feels it has a right to regulate.
I regard the sharing of information about origins as an important human right. It is one which most people can take for granted—they know who they are and where they came from. A vital part of my heritage, and my genetic and medical history is missing. It is essential that adopted adults have the right to the knowledge of their identities, as without this we are left floating, without a sense of where we came from, or who we are.
My own experience tells me that the past is consistently reenacted in the present. Behaviour, attitudes about self, trust and security are fundamentally tied up in our feelings about where we came from, and who we are. Why should adopted adults be penalised by the circumstances of our birth. We had no control or choices at the start of our lives, but as adults we are able to have some small amount of control in satisfying the intense need to know about ourselves. This proposal would remove this choice, and once again any control.
During my time of attending an adopted adults support group I have met many adopted adults, and know of no one who feels that their right to know should be acted upon blindly. We are fiercely protective of our adoptive parents and of the potential to uncover past hurts that our birth parents may carry. We do not wish to hurt anyone, and are acutely aware of the sensitivity of the situation. Our motive is to find ourselves, and in doing so potentially ease the pain of the situation.
I can understand that for some birth parents the fear of uncovering past hurts may be acute. Many birth mothers feel they were victims of a system that made them relinquish their children to others. However, this does not alter the fact that we are those children, and that adoption has had a profound and enduring effect on our lives, which in many cases can be alleviated by the information and knowledge of our past. Like birth parents, we carry the anger and pain of the situation, but I would argue that this would only be increased by enforcing the retrograde step proposed by the Adoption Bill.
Adoption causes enough loss for those involved, to deny adopted adults the right to attempt to rectify some of this loss, is unreasonable and unfair.
Memorandum from Margaret Phelps, Section 51 Counsellor
I am writing to you in relation to the above clauses.
Since 1975 the Children Act has enabled adopted adults (those over 18 years)to apply for their birth records through a procedure administrated by the Office of National Statistics. This has enabled large numbers of adoptees to obtain a copy of their original birth certificate. This process had been operating in Scotland for a good many years, and gave the opportunity to draw on Scotland's experience.
My concern is that with the proposed section 76 protected information i.e. ``that the identity of birth parents, and the information which would enable adopted people to obtain their original birth certificate, must not be disclosed under this clause if the birth parents have lodged an objection to its disclosure.'' It would appear that this completely alters the current position where by adopted adults may apply for their birth certificates.
I have been working with adopted adults since 1979, and for the last ten years with NCH, I have witnessed the positive affect that applying for birth records has had on adopted adults. They feel much more complete knowing more about themselves and it seems a basic right to be able to know the name which was given to them when their birth was registered.
It is not clear who has informed the proposed change as from my experience the present process is supported by the majority of birth relatives and adoptees alike. It is surprising that a Bill which seeks to make the welfare of the child throughout his life the paramount consideration should propose curtailing an adoptees right in this way. Over the last twenty years legislation in relation to children and adoption has encouraged a move from secrecy to a more enlightened and honest approach.
I would strongly urge you to reconsider this proposal and have further discussion with adopted adults.
Please do contact me if I can be of further assistance.
Written evidence from the National Association of Guardian ad Litem and Reporting Officers (NAGALRO)
NAGALRO welcomes the Adoption and Children Bill but would wish to draw your attention to the following areas of concern.
BRIEFING PAPER ADOPTION AND CHILDREN BILL
This briefing should be read in conjunction with NAGALRO'S response to the white paper and BAAF's briefing notes.
1. The Voice of the Child and the Welfare Checklist Clause 1
The Bill aligns adoption law with the relevant provisions of the Children Act 1989 to ensure that the child's welfare is the paramount consideration in decisions relating to adoption.
We welcome (4a) that provides the court or adoption agency to have regard to ascertaining the child 's wishes and feelings regarding the decision.
While welcoming this development, in situations where dispensing with parental consent is under consideration, we believe there should be a threshold test which would need to be met before parents lose their legal relationship with their child.
We have concerns about targets as we believe this could result in agencies rushing into placing children for adoption when the best plan taking note of the child's wishes could be to work with the birth family enabling them to care for the child.
2. Special Guardianship Clause 14
Adoption provides security and permanence to children, and at present the majority of children placed for adoption are under 5 years of age. Older children also are placed for adoption and this option should always be considered. However although for some children the new provision of special guardianship may be appropriate. There will continue to be a group of other children, many of them older, who will continue to need a high level of support and professional involvement within a foster placement.
With this proviso we welcome the proposal in Section 14 to introduce special guardians but continue to have some concerns about the funding of financial support. In many cases the lack of funding could deter foster carers or extended family members from being willing or able to take on the extra responsibilities of this role without additional financial support. There would also need to be a duty for the Local Authority to provide support for the education of a young person in a similar way as exists at present for care leavers.
3. National Adoption Register Clause 115
We welcome the provision for a National Register of children awaiting adoption and prospective adopters. It will be more effective if there are not cross charging arrangements that will deter some local authorities from making use of it, as happens now with interagency placements.
There is unlikely to be a match between all prospective adopters and children needing families. Adoption agencies should be able to prioritise assessment of families who are likely to meet the needs of harder to place children.
4. Adoption Support Services Clause 3
The Bill places a duty on local authorities to provide adoption support services. We are concerned that whilst children and families have a right to be assessed by the local authorities, there is no obligation to provide the service. This could result in families undergoing protracted assessments, an acknowledgement and statement of need made, but no service provision offered. Potential adoptive applicants need to know they can count on support services being available across the country. The duty to provide a multidisciplinary strategy is required to respond to the complex needs of many of the children who will be deemed suitable for adoption. We welcome the recognition of the need for pre as well as post adoption support. However, we do believe there should be adequate funding particularly in relation to adoption allowances.
We welcome the duty to extend adoption services to natural parents, former guardians and to adopted persons. We regret that there is no commitment to a statutory intermediary service for birth family members seeking contact with adopted adults. The Department of Health has recently produced guidelines for undertaking this area of work and we believe it should be placed on a statutory footing. Moreover we are concerned about the restrictive nature of the standards which fall far short for the guidelines.
5. Placement Orders Clause 20
The Bill makes provision for the new measure of placement for adoption with consent and placement orders to replace the existing provision in the Adoption Act 1976 for freeing orders. The legislation nowhere makes clear what role the Children's Guardian will have if an application is made for a placement order. There needs to be clear provision for a statement of the child's wishes and feelings to be made known at this stage, by a Children's Guardian -otherwise how will the child 's wishes and feelings be known?
There is also the need to clarify the role of the Children's Guardian in care proceedings where a placement order is part of the care plan, following the making of an order. There would be a need for the prospective applicants to be seen, and for the child 's wishes and feelings about the placement to be made known as part of the commentary on the local authority's care plan.
There is also concern about the potential for delay in linking and placing a child before a court hearing is obtained.
We are also concerned about interim parental responsibility being held by prospective adopters as there are situations of placement disruption, which could lead to complicated legal proceedings with the potential of a three or four party dispute.
6. Access to information Clause 53-62 and 76
Over the years the acknowledgement of the adopted person's need to have information about the reasons and circumstances leading to their adoption has been acknowledged. The Explanatory Notes (paragraph 148)refers to a ``new right ''for an adopted adult to receive from the adoption agency information collected by the agency, in accordance with regulations, prior to the adoption. However, the information disclosed under this provision must not include identifying information about other people -so called ``protected information'' or ``section 76 information''. That is to say that the identity of their birth parents, and the information which would enable adopted people to obtain their original birth certificates, must not be disclosed under this clause if the birth parents have lodged an objection to its disclosure. This fundamentally alters the current position, in force since the Children Act of 1975, by which adopted adults enjoy the right to be given information necessary for them to obtain a copy of their original birth certificate.
7. Adoption Allowances
Clause 3(8)B makes some reference to `financial support'. If the Bill wishes to widen the pool of families who are willing to consider adopting it is essential that there is a review of the adoption allowance system and we would recommend that national rates were introduced. Many low-income families might come forward if there was an allowance that covered the day to day maintenance of a child. The system must be more than discretionary and must be a national policy.
8. Acquisition of parental responsibility by step-parent (Clause 107)
This is a positive addition and provides a alternative to adoption and thus not severing the child's link with the birth parents. We would wish to seek reassurance that, where the child had sufficient understanding, the court is aware of the child's wishes and feelings when considering any application for this order.
9. Summary
NAGALRO welcomes many of the provisions in the Bill as a way of facilitating earlier adoption placements for the many children, for whom adoption is the most appropriate plan, and who still wait far too long. However, the voice of the child, the rights of parents in relation to the consent issue, and the need for any legislation to be fully supported by sufficient resources to implement the provisions, must be incorporated into the final legislation.
Memorandum from Joy Rees, Margaret Phelps and Janet Benwell, Post Adoption Workers, Surrey County Council Social Services
We are a group of adoption workers, all with over 20 years experience in the field of adoption. For the last 10 years we have worked for Surrey County Council, as Post Adoption Specialists, and feel well qualified to comment on the proposals contained in the above Bill. Our experience comes from working with all parties involved in the adoption process—adopted parents, adopted children and adults, and birth relatives. Last year, for instance, we dealt with almost a thousand Post Adoption referrals.
We are particularly concerned about the clause referring to `protected information' or `section 76 information'. i.e. that `the identity of birth parents, and the information which would enable adopted people to obtain their original birth certificates, must not be disclosed under this clause if the birth parents have lodged an objection to its disclosure'. This fundamentally alters the current position, in force since the Children Act of 1975, by which adopted adults enjoy the right to be given information necessary for them to obtain a copy of their original birth certificate.
We really are at a loss to know why this has been proposed. What/Who has informed this decision? This proposal seems to totally ignore all of the research findings which led to the change in law in 1975, which gave adopted adults the right to such information—Changes instigated and welcomed by the majority of birth relatives and adopees alike. It seems extraordinary that a Bill which seeks to make the welfare of the child throughout his or her life the paramount consideration, should propose curtailing an adoptee's right in this way.
The rationale behind this proposal seems inexplicable. It is a totally retrograde step, seems to be a basic infringement of human rights and will create a very unjust two tier system. Over the last 20 years, legislation in relation to children and adoption has encouraged a move away from secrecy to more openness and honesty. This proposal directly contradicts what is now universally acknowledged as good practice.
We strongly urge you to reconsider this proposal, and if we can be of further assistance please do not hesitate to contact us.
Supplementary evidence from the Family Rights Group on placement orders, contact and
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.
SUPPLEMENTARY EVIDENCE
In addition to our earlier submissions, and following discussion with other agencies, we outline below further recommendations regarding placement orders, contact and parental consent. These proposals aims to provide greater simplicity and fairness to all parties than the provisions in the current bill, and also to address some of the concerns raised by both BAAF and by Professor June Thoburn on the potential incompatibility between the Children act and this Bill, in particular:
—The dilemma which a local authority faces when a relinquishing mother consents to the adoption placement and obstructs the local authority from ascertaining the views of the father without PR and the wider family (BAAF);
—The restrictions on a parent's right to remove an accommodated child whom they have consented to being placed for adoption; which conflicts with the principle in the 1989 Act that a parent may request the return of their children from accommodation without notice (BAAF);
—The creation of a new legal status for a third group of children who are authorised to be placed for adoption but may never be placed, leaving these children with a sense that ``nobody wanted to adopt me'' (Professor Thoburn).
We propose that the scheme for authorising placements for adoption should be revised as follows:
1. That a placement order should be made in all cases before a child can be placed for adoption, even if the parents consent, and that in consequence the provision to place a child by consent in Clause 18 be removed. This will ensure that:
—The welfare checklist in Clause 1 will be applied in respect of all children before they are placed for adoption, and as a result that
Issues relating to the wider family (including fathers without parental responsibility) are considered in cases where each parent with PR consents to the child being placed for adoption.
2. That Clause 20(2) should be amended as follows:
``The court may not make a placement order in respect of a child unless
a) Each parent consents, or
b) The child is subject to a care order; or
c) The court is satisfied that the conditions in s31 (2) of the 1989 Act are met in which case the court may make a care order at the same time as a placement order''.
1. That once an accommodated child is subject to a placement order, the parent will no longer have the right to remove the child from the accommodation/placement with the adopters unless the local authority agree or the placement order is revoked by the court. This will obviate the need for the complex variations on the right of parents of accommodated children to remove them, if they withdraw their consent, as currently set out in Clauses 30 and 31;
2. That a child who is the subject of a placement order will continue to be looked after in care or accommodation, despite being placed for adoption, unless/until an adoption order is made;
3. That Clause 1 should be amended to include a new subclause, which places a duty on the court to consider contact arrangements both at placement order and adoption order stage. This will underpin the court's application of Clause 1(4)(f). The current provision in Clause 26(4) could then be deleted, as the court's consideration of the contact arrangements would be part and parcel of its consideration of all the child's welfare needs, as envisaged in Clause 1.
4. That this subclause should include an additional requirement to consider the views of any persons who are not parties to the proceedings but with whom the child has had a significant relationship.
5. That any provision for contact with a child placed for adoption made by the court should be made under the Children Act 1989. The separate scheme currently created by Clauses 25 and 26 should be removed on the basis that it creates unnecessary complexity, and duplication, for no apparent advantage.
We have already discussed our concerns regarding the mechanism and grounds for dispensing parental consent in our earlier submission. We wish to reiterate here our key concerns, which we would urge the Committee to consider:
—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 and 8 of the European Convention and is therefore open to challenge under the Human Rights Act 1998, and
—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.
Memorandum from Dr. Peter Selman, Chairman, Network for Intercountry Adoption (NICA); Trustee, British Association for Adoption and Fostering (BAAF)
I had hoped to give oral evidence to the Committee on Tuesday November 20th, following an invitation from Mr James Davis, but was unable to attend the re-arranged meeting on November 21st, due to prior appointments in Newcastle. Naomi Angell was able to attend on behalf of NICA and I would like to endorse her comments to the Committee as representative of the views of NICA.
However, I hope the Committee will accept this written evidence and apologise for its last-minute arrival. The evidence is derived from my own experience and research, although informed by my role as chair of NICA and my discussions with members. My evidence covers a number of points in the Bill, with special reference to intercountry adoption, but I have added some further general comments based on research I have carried out in relation to non-relinquishing birth mothers and access to birth records.
I have started with a brief reference to the Network for Intercountry Adoption [NICA] of which I have been chairman for the past six years. Thereafter my evidence relates to three areas.
—The need to encourage the development by accredited bodies of mediation or linking activities in intercountry adoption (Section 3)
—Other issues relating to intercountry adoption (Section 4)
—The right of adopted persons to obtain information about their birth origins (Section 5)
THE NETWORK FOR INTERCOUNTRY ADOPTION [NICA]
This organisation developed from a body previously entitled the British Advisory Board for Intercountry adoption [BABICA] founded by Margaret Bennet of the International Bar association [IBA] in 1991. Its membership is currently over 30 and includes representatives from local authorities, voluntary adoption agencies, BAAF, CICA, parents groups e.g. AFAA, advisory bodies e.g. OAH and OASIS, plus a number of concerned individuals including those adopted from abroad. Representatives of the Department of Health are invited to attend and have done so regularly over the past five years. Terms of reference may be found in Appendix One to this memorandum.
3. THE NEED FOR ACCREDITED BODIES TO UNDERTAKE ``MEDIATION'' AND LINKING ACTIVITIES BETWEEN RECEIVING STATES AND STATES OF ORIGIN
This submission is based on work I have been doing over the past ten years with accredited bodies in Europe, which has convinced me that there is an important role for non-government organisations in relation to intercountry adoption, providing that they are authorised and supervised by the Central Authority of their state. Their role is of particular importance in relation to activities following the assessment and approval of prospective adoptive parents, which is already being undertaken by four voluntary organisations in the UK.
The key activities of accredited organisations at this stage of the intercountry adoption process have been well summarised in the evidence presented to the Committee by the Overseas Adoption Helpline (OAH):
1. Assisting applicants after approval to make appropriate links with agencies in the overseas country
2. Working together with the agency/body in the overseas country at the stage when the approved family is matched and introduced to a waiting child
3. Supporting applicants through the legal process in the overseas country through to the child's arrival in the UK
4. Linking with the overseas country in providing post placement/post adoption services.
My evidence is concerned in particular with the first three stages of this process, but we have become increasingly concerned at the lack of provision for ensuring that states of origin receive adequate follow-up reports on children placed and this is an important part of the activities of many of the agencies in Northern Europe. A more detailed argument for the importance of accredited agencies, based on a paper presented at the Overseas Adoption Helpline's international seminar on Intercountry Adoption from the perspective of States of origin (London, October 2000) is presented in Appendix Two to my evidence.
The central argument is that an accredited body can provide ``a concrete personalized link, case by case, between the State of origin and the receiving State, between the child and the adopting family, between the local level and the governmental level'' (ISS 2000). Such bodies can provide support for prospective adopters, ensure adequate background information is available for adopted children when they reach adulthood, maintain links with individual states of Origin, oversee the provision of reports back to these countries and provide post-adoption support for adopting families (Sterky 2000). Strong support for such bodies in receiving States has been expressed to me by officials and agencies in Korea, China, India and the Philippines (see e.g. Damadoran 2000).
The potential for such a development already exists in the UK in the form of the four voluntary organizations already approved for intercountry adoption work—see e.g. Hesslegrave in Selman (2000)—and I understand that at least one of these—PACT (Parents & Children Together) is keen to extend its activities in this direction, but it is unclear whether current legislation—Section 10 of the 1999 Adoption (Intercountry Aspects) Act, which inserts a new subsection 6a and 6b into the 1976 Adoption Act—would allow approval to an organization that was concerned only with intercountry adoption (or with linking activities for intercountry adoption following assessment by one of the existing approved agencies). I would, therefore, suggest a further amendment to make it clear that an agency could be approved for work in intercountry adoption alone, if it could satisfy ``the general requirements for an adoption agency'' (1999 Act Explanatory notes page 9) without this requiring that they also be involved in domestic adoption.
4. OTHER AREAS CONCERN RELATING TO INTERCOUNTRY ADOPTION
Another area of concern is the role of the proposed Central Authorities in the UK. In most European countries this is concentrated on formal links to central authorities in the States of origin with far greater delegation to other bodies in relation to the linking processes described above (just as the UK currently delegates assessment to approved agencies)—and in some cases to central bodies providing information and exercising regulatory powers. In the absence of this, there seems to be a need to provide an independent appeal for prospective adopters against decisions by the central authority and for the activities of the central authority to be subject to standards as is the case for local authorities and other approved agencies.
The Adoption Support provision ( e.g. clauses 4 and 8) are welcome but there should be clarification of the duties of the bodies involved to provide such services as well as making an assessment. The designation of additional bodies such as OAH as adoption support agencies is recommended, where their remit clearly goes beyond the provision of information.
A revised ``designated list'' (Clause 83) is urgently needed.
The proposals for ``special guardianship'' (clause 110) are welcome and may prove of great value in relation to children from overseas who are in need of a permanent and secure home in the UK—including but not limited to unaccompanied asylum seeking children.
The possibility of an entry in the Adopted Children Register (Schedule 1.3.1) for children adopted from abroad is welcome and should be extended to those who have already been adopted. There is need for further work on the possibility of absorbing these into an Adoption Contact Register. The issue of access to information for overseas adopted persons is critical and still not adequately resolved. My comments on access to information in Section 5 below are primarily of concern to domestic adoption, but should not be taken to indicate that the right to information should not apply also to those adopted from overseas.
5. DISCLOSURE OF INFORMATION ABOUT A PERSON'S ADOPTION
For some years, I have been monitoring the statistics on access to birth records under s 51 of the 1976 Adoption Act and this has shown that the right to apply for their original birth certificate is one which is likely to be taken up by many adopted persons, especially those adopted by non-relatives. My current estimate is that about 40 per cent of those adopted by non-relatives are likely to search for their birth records through formal channels during their life time. This point is endorsed by Ruper Rushbrooke's recent study for the Office of National Statistics published in a recent issue of Population Trends.
The proposal to change the process of applying for disclosure of information has been added since the previous draft of the Bill and I am unsure what has led to this and in particular to the proposal for a ``veto'' which could deny top the adopted person access to identifying information. I do feel that this is a retrograde step and one which should only have been taken after wide consultation with all concerned.
As a member of the BAAF Research group I endorse the Group's evidence which articulates clearly the case for not taking this step. I should however, like to elaborate my own concerns and suggest that this is an area where consultation with other countries with experience of such a veto might have been useful.
Evidence for the positive impact of the right to information is provided in the British studies cited by the BAAF Research Group and also in a recent article by Ulrich Muller and Barbara Perry in Adoption Quarterly 4(3) 2001 entitled ``Adopted Persons' Search for Contact with their Birth Parents; Adoptee-Birth Parent Contact'', which reviewed 10 research studies in the US and Canada dating from 1980 to 1998 and concluded ``contact with their birth parents appears to have a beneficial effect on adoptees''. Any restriction of the possibility of gaining background information, including identifying details of birth parents, is potentially damaging as well as being a denial to adoptees of basic rights established in law for the past twenty-five years.
The most striking example of the use of a veto in legislation is that of New Zealand, where the right for birth parents to request a veto on identifying information was included in the Adult Adoption Information Act 1985. However, it is important to note that this was permitted only for adoptions taking place before March 1986, when the legislation came into force. Birth mothers whose child was adopted after that date have no right to place a veto. It is also important to note that in New Zealand birth mothers themselves may ask for information about their child if (s)he is over 20, although there is then a right of veto by the adopted person. Many of us would like to see a similar right for birth relatives in this country as a support to the right to place their names on the Adoption Contact Register.
In the three years following the New Zealand Act (1986-9), 10,676 adoptees applied for their records—and 2,464 birth parents sought information. 4,179 vetoes were registered (three-quarters by birth parents). Mullender (1981) estimated that about 6 per cent of adopted persons seeking information about their birth meet a veto and this can be a bitter blow to people who have built up high expectations about understanding their origins—and in some cases it can lead to a feeling of rejection and hopelessness.
Concerns over the impact of ``searching'' on birth relatives, especially birth mothers, were raised during parliamentary debates on the 1975 Children Act and the decision to require those people adopted before 1976 to meet with a counsellor before receiving their birth records reflects that concern, especially for birth parents who relinquished their child at a time when secrecy and anonymity prevailed.
As I understand it, the new provisions would only apply to those persons adopted after this Act is implemented. Nevertheless, the proposed new legislation ignores all the evidence of the success of the current law and would mean that the next generation of adopted adults will not have the rights which were enshrined in legislation—without any requirement for counselling—for those adopted over the last twenty five years.
Existing birth parents will not have a right of ``veto'' and it seems unnecessary to give this to future birth parents, even if it is justified as a ``safeguard'', when we are moving to a more open model of adoption. If this section of the Bill is implemented we will move to a pattern similar to that found in the United States where moves towards more ``open'' adoption are accompanied by a resistance to the granting of rights of access to information about origins. Evidence from that country is that adopted persons still search, employing private agencies where necessary, so that privacy is not guaranteed. Safeguards can still be provided through the courts in exceptional circumstances.
I would have hoped that the new legislation could have built on the success of section 51 and extended the right to information to birth parents and to cared-for children as well. I hope that it is not too late to retrieve this position and return to that proposed in the earlier version of the Bill. The Department of Health's justification for this change seems to me to be weak and lacking in any supportive evidence.
This section does, however, raise the issue of rights to information for those adopted from abroad and I would like to repeat my point made in section 4 that it is vital to ensure that information about background is obtained for all those adopted from overseas; that this is then located securely so that it can be accessed when they reach age 18; and that consideration be given to the inclusion on the Adopted Persons Register of those adopted from overseas, before the Act where there is sufficient information, and to allowing for the use of the Adoption Contact Register by those adopted from abroad—or for the creation of a similar mechanism more closely tuned to the needs of such adoptees.
APPENDIX ONE
is an independent group composed of those who have an interest in and/or experience of intercountry adoption
The membership shall be as wide-ranging as possible in order to encompass a diversity of experience and professional discipline.
Membership shall be open to those who:
—have such interest or experience and are committed to the paramountcy of the child's interests in intercountry adoption
—recognise and adhere to the existing legal requirements and seek to promote good practice for intercountry adoption
There will be an annual fee for membership, to cover costs of mailings and photocopying of information for distribution.
The aims of the groups shall be:
1. To promote the paramountcy of the child's interests in all matters relating to intercountry adoption
2. To promote the exchange of information and to encourage research.
3. To propose and pursue improved standards and services in intercountry adoption
4. To ensure that an agreed ethical base underpins all intercountry adoption
Meetings will be held at least three times a year.
THE ETHICAL BASE UNDERPINNING INTERCOUNTRY ADOPTION
Recognizing that children ``should grow up in a family environment, in an atmosphere of happiness, love and understanding'', NICA is committed to ensuring that intercountry adoption is only carried out ``in the best interests of the child and with respect for his or her fundamental rights as recognized in international law'' [article 1a of Hague Convention] and endorses the ethical base outlined below:
—Intercountry adoption should be pursued to the benefit of children having full regard to their rights and interests
—the child's state of abandonment or relinquishment must be genuine and duly recognised as such
—intercountry adoption should only be the plan for any child when there is no possibility of the child being provided family life in his or her country of origin
—intercountry adoption should be recognised as a matter of legitimate public concern and, as a result, it should only take place within systems which afford official scrutiny
—equivalent standards and practices should be applied in intercountry adoption and domestic adoption
—the needs and interests of children adopted from overseas should be given equal consideration to that given to the needs and interests of children who are born and adopted in the UK
—intercountry adoption systems should acknowledge a child's sense of time and that unnecessary delays are almost always detrimental to a child
—all prospective intercountry adopters in the UK should have access to necessary information, preparation, support and other services throughout the adoption process and after adoption.
Prepared on behalf of NICA by Gill Haworth, Peter Selman and Roger Shead, January 1999
APPENDIX TWO
This appendix is based on a workshop presentation at the OAH conference on Intercountry Adoption; the Perspective of the States of Origin, London 12-13 October 2000.
Introduction
Links between sending and receiving countries can be made in various ways—by individual prospective adopters seeking out birth mothers; through attorneys in both countries; through central authorities in both countries: through other public authorities: through accredited bodies—usually non-governmental organisations or through combinations of any of the above—e.g. accredited body to central authority.
The Hague Convention [Article 22 (2)] allows for individuals (e.g. lawyers) to mediate in ICA, provided they have been approved by the Central Authority—but States of origin may indicate that they do not wish to allow adoptions other than through public authorities or accredited bodies.
The use of attorneys in mediation is widespread—without the safeguards of approval—in the USA and many States of origin. The UK has made it clear that it does not wish to follow this pattern. The solution offered is to require applicants to obtain authority from the Dept of Health before proceeding with an adoption, but not to say that it is still unsatisfactory that prospective adoptive parents, however well prepared and however carefully assessed, should be able to go to a State of origin and negotiate an adoption themselves or be expected to do the remaining linking stages with an authorised organisation in the State of origin.
The case for accredited bodies in mediation
The case for accredited NGOs has been argued in various ways:
In his Report on Intercountry Adoption [1990], Hans van Loon, who is now Secretary General of the Hague Conference, argues that ``agency to agency'' adoptions offer the best prospect of avoiding irregularities—e.g. by having representatives in States of origin and direct contact with accredited bodies there—and the role of Central Authorities in receiving States should be to ensure that such organisations are regulated and maintain the highest standards. Article 9 of the Convention needs clarification here to avoid a situation where prospective adopters can opt to negotiate directly with the sending country.
The International Social Service [ISS] has made recommendations which are particularly clear on this point, stating that they are:
``. . . in favour of involvement of accredited bodies, particularly in receiving States, since they provide a concrete personalised link, case by case, between the State of origin and the receiving State, between the child and the adopting family, between the local level and the governmental level.''
The responsibility for exchanging information about the child and the prospective adoptive parents and taking appropriate measures ``to facilitate, follow and expedite proceedings'' (Article 9b of the Hague Convention) would of course remain with the Central Authority, but would be delegated to accredited bodies, just as home studies are delegated to local authorities and other approved adoption agencies.
EurAdopt believes that non-profit voluntary organisations are best placed to provide mediation in intercountry adoption and safeguard the best interests of the child. Most have greater opportunities than public authorities to visit countries of origin on a regular basis and ensure that prospective adopters can be given up-to-date information on the conditions in those countries....monitor the financial side of adoption.....deal with the questions and worries of applicants while they are waiting for a child. This is better than if applicants are free to directly contact the adoption authorities in the country of origin, when the costs fall on the poorer administrations there.
However, agencies have to face their own dilemmas. There are in particular three areas where the practical adherence to the ethical rules and the principles in (e.g.) the Hague Convention is difficult.
—``reasonable'' fees or salaries to lawyers and co-workers,
—avoidance of unnecessary delays in the adoption process
—financial assistance to other child welfare or development schemes.
The risk for commercialisation of intercountry adoptions in an agency system is clear.
Models of mediation for intercountry adoption in the UK
The UK is unusual in having no mediating agencies and leaving all the linking work to be done by prospective adopters and central government—albeit often with help from advice groups like OAH and OASIS or parents' groups such as AFAA. I believe that the evidence given in the previous section indicates that this is a weakness in our system. Even if the need to develop a linking organisation is recognized, the question remains of what sort of agency(ies) would be most appropriate for the UK. Some possible models are indicated below:
A new agency dedicated to ICA alone but doing all stages from home studies and preparation groups through linking activities with authorities and agencies in States of origin and travel arrangements to post-adoption follow-up—as in Australia or for many US agencies. This seems to be outside current legislation and regulations.
—A dedicated ICA agency, which does linking activities but not the home studies (which would remain with LASSDs or other approved agencies)—the pattern in the Netherlands and Scandinavia. Current legislation seems to require that such an agency be approved also for domestic adoption.
—An established voluntary adoption agency, which extends its remit to ICA, initially through home studies, but then in ``intermediation'' and post-adoption activities:—PACT, Norwood and Childlink have already taken the first step. There would seem to be no barriers to the existing agencies extending their role in ICA to include mediation activities.
—A ``big'' voluntary with regional offices—and ideally some existing international links—e.g. Barnados or one of the religious organisations—taking on ICA as an additional activity. Such agencies would have to be approved for adoption including intercountry adoption, but would potentially have structure to facilitate a national service with international links.
—A series of smaller country-specific organisations arising directly from parents' groups. This facilitates the expertise in respect of particular countries, but can make it hard to create and maintain standards and makes such agencies very vulnerable to changes in the availability of children.
—A consortium of LASSDs offering home studies and linking activities on a regional basis—or indeed one LASSD ( e.g. Hampshire) with a well-established ICA service and specialised panel, offering a service to a wider geographical area—or at least an extended service, incorporating mediation, for its own applicants.
For the UK the most promising model may be that which builds on the work of those voluntary organisations which are already approved for work in both domestic and intercountry adoption. There are currently four of these and their main involvement is in the provision of preparation groups and in the assessment of prospective adopters. I would like to see some of these extend their work to the ``linking'' stage of the intercountry adoption process. However, there may be a case for the accreditation of a body which is dedicated to work with intercountry adoption and which may concentrate mainly on mediation, accepting referrals from LA and voluntary organisations which have approved prospective adopters following a home study. It is unclear whether Section 10 of the 1999 Adoption (Intercountry Aspects) Act would allow an agency to be approved only for intercountry adoptions.
Lessons from other countries:
The view of central authorities in most State of origin seems clear—that they prefer a system which uses accredited agencies in both sending and receiving countries to arrange individual adoptions, as long as those agencies are properly authorized and regulated. In the US today the quality of agencies is highly varied and there is no system of accreditation as will be needed when the US ratifies the Hague Convention. A growing number of British couples are turning to these agencies for help in identifying children and arranging necessary papers etc. Many of these agencies also carry out or arrange home studies for prospective adopters.
The ``Scandinavian'' model is rather different. Home studies are usually done by the equivalent of our LASSDs, but linking work is typically done by NGOs licensed by the central authority. In Norway and Finland this is the only way that ICA may be done. In Sweden ``independent'' adoptions are allowed in exceptional cases if approved by NIA, the Swedish National Board for Intercountry Adoption, and provided that a home study has been carried out.
Figure One below shows the structure of services in three European countries following the Scandinavian model. In addition to the presence of mediating agencies in all three countries, there are two further differences which should be noted:
—The existence of central bodies which are distinct from the responsible ministry. In the case of Sweden this body, the Swedish National Board for Intercountry Adoption (NIA), has been designated as the central authority.
In the Netherlands Bureau VIA has an important role in providing information and running the excellent preparation courses which all prospective intercountry adopters are required to take before they proceed to a home study assessment.
FURTHER READING ON MEDIATION International Social Service (2000) Evaluation/Implementation of the Hague Convention of the 29th May 1993 Evidence presented to the Special Commission of November/December 2000 on the practical operation of the Hague Convention of 1993 Selman P. (ed) (2000) Intercountry Adoption: developments, trends and perspectives. London: BAAF: especially— Section IV on experiences from other countries: Chapter 19; Andersson G ``Intercountry adoption in Sweden: the perspective of the Adoption Centre in its 30th year Chapter 20; Duinkerken A ``Awareness required; the information and preparation course on intercountry adoption in the Netherlands Chapter 21; Sterky K ``Maintaining Standards; the role of EurAdopt Chapter 22; Damadoran A ``Child Adoption in India; an overview'' Selman P. (1998) ``Intercountry Adoption in Europe after the Hague Convention'' in R. Sykes and P. Alcock (eds) ) Developments in European Social Policy: Convergence and Diversity, London: Policy Press Selman P. & White J. (1994) ``The role of `accredited bodies' in intercountry adoption'' Adoption & Fostering 18-2 pp 7-13 Selman P. (1993) ``Services for intercountry adoption in the UK: some lessons from Europe.'' Adoption & Fostering 17-3 pp 14-19 Selman P. (1991) ``Inter-country Adoption: What can Britain learn from the experience of other European countries?'' in Room G. (ed) Towards a European Welfare State?, Bristol: S.A.U.S. pp 151-186 Van Loon H. (1990) Report on Intercountry Adoption, The Hague: The Hague Conference. Memorandum from Judy Durey As a British Australian and adopted person who is in contact with both sides of my birth family in the UK, a professional working in the area of adoption and a committee member of ARCS (Adoption, Research and Counselling Service) WA, I would like to voice my concerns about the new Adoption and Children Bill and raise the following points: 1) The Bill will in effect, by restricting information, take away the absolute right of adopted people to access all of their records. World wide trends are moving towards openness not away from it. This has resulted in two major shifts in Western Australian adoption legislation. One has been the recognition of the child's birthparents and early access to adoption records. 2) The WA Adoption Act 1994 promotes the notion that adoption should not be a secret process and acknowledges the reality that adoptees have two sets of parents with two sets of backgrounds. I read no mention here in the Bill of adoptees being brought up within a normative model of that knowledge. 3) Open Adoption came into being in WA at the beginning of 1995. Both parties now sign an Adoption Plan and agree to the degree of openness and contact that that child will have with their birth parents throughout their upbringing. Ongoing counselling is available to adoptive families and birth parents. 4) In WA the birth parent(s) has direct input into who the adoptive parents will be. I am concerned as to who will put together the `register' matching up potential adoptees with adoptive parents in the UK, and whether birth parents have any decision making power in choosing the adoptive family. 5) Where children are removed from the birth parents in a crisis situation without their consent, there appears to be no time frame put in place before an adoption can be arranged. I feel this is very problematic given that adoption is a legal severance form the birth family It is obviously important for the child to be out of harm and in a secure environment, but a relationship existed which can not simply be terminated with the signing of legally binding papers. 6) I am currently researching the complicated process of embodying `new' fundamental information about identity into a felt sense of self, where there has previously been a lack of knowledge and long term separation from the family of origin. I believe that adopted people where possible should have information at an early age and some form of contact even if in extreme cases this is under supervision This knowledge, where possible should be built upon in a positive way as they grow up. I think that the most important thing is that children are brought up in safe loving environments within the full knowledge of who they are, and that counselling is made available to help all parties at all times. Memorandum from Professor Sonia Jackson AcSS, Professorial Fellow, Thomas Coram Research Unit, Institute of Education, University of London My interest in the Bill arises from my experience as a clinical child psychologist and local authority social worker, from 25 years teaching and social work with children and families in universities, and from directing and participating in numerous research and development projects concerned with children in public care. This has given me the opportunity to meet a wide range of looked after children and young people. I am a Trustee of the Who Cares? Trust and of `Our Place', a local voluntary organization providing post-adoption support, and was until recently Chair of Children in Wales. I have only commented on those sections of the Bill where I have specialist knowledge. Earlier this year I published a book with Nigel Thomas: What Works in Creating Stability for Looked After Children (Barnardo's, 2001), in which we concluded, on the basis of a comprehensive research review, that adoption is the only form of substitute care that can be relied on to provide stability and continuity for children who cannot live with their birth families. Of course that does not mean that it is the solution for all children, but in most cases it is the best option. CHILDREN ADOPTED FROM CARE For many years, before the Prime Minister's Review, there was a great reluctance among social workers to place children for adoption and it was seldom considered even in cases where the child had been severely abused or neglected by birth parents and there was no realistic chance of rehabilitation. Children were placed in supposedly long-term foster homes which almost invariably broke down in adolescence, if not before, usually resulting in a further series of unsuccessful placements and the very poor post-care outcomes that are now widely recognised. Even successful foster placements end at 18, whereas most young people continue to turn to their parents for help and support well into their 20s. I therefore greatly welcome those provisions in the Bill which will make it easier for local authorities to place children for adoption, reduce delay and enable more people to offer permanent homes to those who would otherwise spend their childhood in care. This is not just a matter of practical measures, such as the national register and the duty of local authorities to provide adoption services. Most importantly, the Bill brings adoption in line with the Children Act 1989 by making the child's best interest paramount. This will help social workers and social service managers when they have to make the painful decision to seek a placement order against a parent's wishes. They are often under great pressure from other professionals, for instance doctors and psychiatrists, to consider the impact on the parent's mental health or her motivation to seek treatment for drug or alcohol addiction. It cannot be in the child's interest to be kept, sometimes for years, in a state of limbo, in the hope that the parent's condition will improve. PROVISION OF ADOPTION SERVICES BY LOCAL AUTHORITIES The low proportion of children adopted from care (5%) and the long delays in the process are partly due to claims on social workers' time of more immediately pressing matters, such as dealing with allegations of abuse or the urgent need to find a foster placement. For this reason I believe it is essential for the adoption service to be managed and staffed as a separate unit, if necessary in a consortium with neighbouring authorities. Moreover a dedicated service is likely to attract the highly skilled and experienced staff who will be needed, including those from professions other than social work. Adoption by foster carers of children they have already looked after have the most successful outcomes for older children. However some local authorities discourage adoption by foster parents because it means losing the placement, and in other cases the possibility is never suggested to the foster carers. At present the process is unnecessarily drawn out (half take more than three years to complete). The reduction in the time before foster parents may apply is welcome but a much more positive approach to foster parent adoptions is the best hope of meeting the government's target in the immediate future. There should be a duty for local authorities to make contingency plans for adoption, preferably with the existing carers, in every case where it seems unlikely that a child will be able to return to the birth family. POST-ADOPTION SUPPORT All research demonstrates the need for support to continue after the Adoption Order, especially but not only when children are adopted who have had many adverse experiences in their birth families and in care. It is very unfortunate that the Bill does not place a duty on local authorities to provide support services, only to assess need. We know from other contexts that this is highly likely to introduce delay and to divert staff time and energy into assessment instead of providing help. The people in the best position to assess the need for support are the adoptive families themselves, and it is essential for the help to be provided at the point they ask for it, not several months later when they may have already given up. There should be a right to adoption support, not simply to assessment. The additional resources required need to be set against the enormous emotional and financial cost of adoption breakdown. SUPPORT FOR EDUCATION Post-adoption support should be a duty of the whole authority and other public bodies, not only social services (in line with the Children Act). In particular Clause 4, subsection 9 needs strengthening to place a duty on schools and the education service to give special consideration to the needs of adopted children. Older children adopted from care are very likely to have experienced problems in school and may come with stigmatizing labels which make them vulnerable to exclusion or have learning problems due to missed schooling. Most adopted children eventually do well at school but they may need preferential treatment in the early stages. Not being able to attend mainstream school is one of the main factors in placement breakdown because of the strain on the parents. PROVISION OF INFORMATION A major cause of difficulty and sometimes breakdown in the period between placement and the making of an adoption order is that inadequate information is given to the prospective adopters before they make the decision to offer the child a home. There may even be a temptation to hold back important information until after the placement is secured. Clause 57 should be amended so that the adopting family is given the fullest possible information about the child's history at the point of matching so that they can make an informed decision. It is far too late to wait until after the adoption order has been made. ACCESS TO BIRTH CERTIFICATES In common with all my colleagues in voluntary organizations and in the research community I am dismayed by the proposal to end the right of adopted adults to obtain their original birth certificates at the age of 18. I have never come across a single case where this has caused difficulties, or where the adopted person has expressed hostility towards their birth parents. In the cases where a reunion has occurred it has often brought great joy to both parties. However the person concerned does not necessarily want to search for their birth parent but is mainly seeking a clearer sense of their own identity. It would be an extremely retrograde step to remove their right to see their birth certificate by introducing unnecessary bureaucratic safeguards. CHILDREN'S PARTICIPATION IN DECISION-MAKING There is very little in the Bill to strengthen children's right to be involved in decisions which affect their lives (in accordance with the United Nations Convention on the Rights of the Child). It does not appear to give young people the chance to ask to be adopted or give them access to the adoption register (Clause 115). I have met many young people who have told me that they wanted to be adopted and asked their social worker to help them but nothing was done. I would like to see a clause in the Bill which makes it mandatory for local authorities to comply with a young person's request to be placed for adoption and make every effort to find a placement, recognising that this may not always be possible.
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