Children and Families Bill

Memorandum submitted by Pete Bentley (CF 08)

To The Public Bill Committee considering the Children and Families Bill

 

                                                     Overview of the  purpose of  my  suggested amendments

 

To ensure there is no ambiguity between that  part of the CA 1989 which requires a LA to assist parents in parenting  their children and the part which essentially requires a LA to consider  permanency via adoption amongst other legal options.

 

To suggest that once a Court has made an Adoption Order no one should be able  to apply to a Court subsequently for a contact order without the explicit written  consent of the adopters of the child. This would protect   adopters from the anxiety  that a birth parent may apply to the Court for leave to apply for a contact order.

 

Note  The changes being proposed appear to some extent to be 'rushed' . The adoption process is I suggest more complex than sometimes acknowledged by Michael  Gove and Martin Narey . At this present time there are cuts in LA services ( including services to assist birth parents including   Sure-Start provision ( see for example  the speech by Lisa Nandy at second reading). At the very least I suggest the Committee should obtain a view from an independent  QC in respect of  the wording of Clause 1  as to whether it is likely to be successfully challeged under Article 6 / 8 of the ECHR.

 

I have been professionally involved in adoption work for over 30 years , as practitioner, consultant, and Independent Chair of  Adoption Panels.

 

The reference to clauses,  pages and lines are to the clause, page and line numbers of the Bill as tabled at second reading.

 

                                                                     Suggested Amendments  to the Bill  

  Clause 1

 

Page 1 Line 9  :  After 'adoption for C'   insert  ' and have decided  that a placement falling within paragraph (a) of subsection (6) would not be consistent with C's welfare.'

 

Note : It is vitally important in my view to ensure there is a clear separation by the LA between their 'helping parents' function and 'considering a child for adoption' - The Adoption and Children Act 2002 deals with this fundamental issue ( because Adoption, without the agreement of the birth parent , is in the words of at least one member of the judicary  a 'draconian' step) by the need for the LA to obtain a Placement Order from a Court. The birth parents are entitled to 'due process' which in my submission cannot be achieved in an administrative way by a LA - it requires a Court Order and as presently worded I believe that clause 1 will fall foul to Article 6 and 8 challenges.

 

[ The Minister at second reading said ( Col 50) :  The fostering for adoption clause will require local authorities to consider a fostering for adoption placement as soon as they are considering adoption for a child, but local authorities must make the most appropriate placement available, which may well be a kinship care placement.

      The Government recognise the importance of family members in taking care of children who cannot live with their parents, and we are aware that a child brought up by a family member benefits from living with someone they already know and trust, rather than a stranger. We stand by the measures in the existing legislation: the Children Act 1989 requires local authorities to seek first to place children with their wider family, and the Children and Young Persons Act 2008 strengthened that requirement. That is why section 17 was amended in April 2011 to make it easier for local authorities to provide regular and long-term financial payments to families caring for children, where they assess that to be appropriate. That is also why the Department has funded the Family Rights Group by £93,000 a year since 2011 and why it will award it two further years of funding in our voluntary and community sector grants in April to help further the role of family group conferences.]

 

Note : I don't believe Clause 1 as currently drafted reflects the intention of the Minister as quoted above.

 

Page 1 line 12 : delete 'subsections (7) to (9) do not apply to the authority  ' and replace with   'subsections 7(b),7(c),8(a), 8(b) and 9 do not apply to the authority'  

 

I suggest 8(c) is reworded in relation to its effect in respect of Clause 1  to allow for 'regard to be given to C being placed for adoption with a sibling if in C's welfare'  ( rather than 8(c) not applying at all ).

 

Note :The following quote from the Guardian summary of on-line comments ( in relation to adoption reforms, published on March 1st) at

 

http://www.guardian.co.uk/social-care-network/2013/mar/01/adoption-reforms-discussion-roundup

 

caught my eye as I was writing this submission :

 

"It was far better for me to wait in a loving, stable foster placement for that bit longer and to be placed with at least one of my siblings, than for me to have been adopted more swiftly but have lost absolutely everything but my first name."

 

 I suggest 8(d) should not be dis-applied ( dealing as it does with the needs of a child with a disability ).

 

Clause 2

 

I suggest adopting the solution advocated by the House of Lords Select Committee on adoption legislation for the reasons they give.  ie deleting Section 1(5) of the Adoption Act 2002  but including the words 'religious persuasion, racial origin and cultural and linguistic background' as part of section 1(4)(d) of the 2002 Act.

 

If clause 2 remains as printed then I would suggest there may be a contravention of the  UN Convention on the Rights of the Child , Arcticle 20(3) of which states :   ........ ' due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background'   and  in addition article 30, I suggest,  has relevance .   

 

Clause 3

 

Serious consideration should also be given to deleting the whole of Clause 3 for the reason given by the Ex Minister  Tim Loughton at second reading ( Col 115 ) 

 

Where I take issue with the Government is on recruitment. We desperately need to recruit more prospective adopters. We desperately need voluntary agencies to recruit more adopters, but it is too early to compel local authorities to take away the responsibility for recruiting adopters. It has been only a year since the adoption scorecard came out. They are three-year track records, and they are always retrospective. We need to give local authorities a greater chance to show that they can recruit more adopters and work in partnership with voluntary agencies.

 

If the clause is retained then I suggest :

 

Page 2 lines 30 to 32 : Delete references to 3(b) and 3(c).

 

Note : [ I hope I'm wrong but I believe 3(b) and 3(c) give rise to a suspicion that attempts will be made to privatise some aspects of adoption by subsequent secondary legislation ie avoiding the full scrutiny of parliament. The message 3(c) sends to LA's I suggest could also mean the loss of a great deal of morale amongst many many social workers who are giving an excellent service to potential and future adopters at the present. Great care must be taken not to castigate LA's just because there is a deficiency of adopters without detailed evidence based research on their overall ability, under the legislation , to fulfil the totality of their   adoption functions.]

  

Clause 4

 

Page 3 line 1 to 3  :  Delete the words ' if asked to do so'  and the rest of lines 2 and 3.

 

Note :[ There is at present frequent omission of,  and sometimes  inaccurate, information given  to adopters. The LA will in any case only have to prepare a personal budget if they decide to provide post adoption support services - I suggest if they do decide to provide  then preparing a personal budget should be mandatory. I regret that the Bill does not provide a duty on LA's to provide post adoption services if they have assessed the need for those services.]

 

Clause 6

 

I suggest an amendment requiring the maintaining of two parts of the  Adoption and Children Act Register . One relating to children subject to a Placement Order ( ie that a Court has directed that the child be placed for adoption) and a second part relating to children where  the  LA are 'considering Adoption' for the child under clause 1 of the Act. This would lessen the risk of potential adopters being confused about the exact legal status of a child, in particular as to his or hers  'legal availability' for adoption without risk of a legal challenge..

 

page 5  line 6 :  delete  the whole of (5).

 

Note : If the Government  is intent of making available as fully  as possible details of children waiting to be adopted I consider that the payment opf a fee can only reduce the usefulness of the Register  and may mean that those who can afford the fee  will have access to more information about waiting children than those who can not afford the fee, which I assume is not the intention.   

 

Clause 8

 

Suggest the whole of this Clause be reconsidered to reflect that after making of an adoption order the Adopters have sole responsibility for decisions about who the child has contact with without any form of court oversight or interference. After all if the adopters are not capable of doing this then  the adoption order would not have been made in the first place and maybe a Special Guardianship or Residence Order would have been more appropriate. This would align the legal status of adopters to be the same as  other parents in the community and not mean that they see themselves as in any way inferior to other parents.

 

page 6 line 31: Delete 'one year' and insert ' four  months' 

 

Note :[ to allow for cases where eg a foster carer has cared for the child during their very early years]

 

 page 6  line 40 :  delete the whole of  the wording of (a) and replace with   ' any risk there might be of the proposed application disrupting the child's life in the view of the person  who has applied for the adoption order  or whose favour the adoption order has been made and for whatever reason they believe it to be true.'

 

page 7 line 5 :  delete 'one year' and replace with ' four months' 

 

March 2013

Prepared 6th March 2013