Children and Famlies Bill

Memorandum submitted by the British Association for Adoption & Fostering (CF 10)

Clause 1 - Fostering For Adoption

Introduction - Best Practice in Promoting the Development of the Child

Child development is deeply embedded in the relationships that the child establishes with their parents. These relationships quickly become highly selective over the first 6 months of the child’s life. The continuity of those relationships should only be disrupted in the most extreme of circumstances although that is precisely what happens when a child is placed in local authority care. It must be a driving principle to minimize the time it takes to re-establish a parenting relationship for the child whether that is with the birth parents, other family members or alternative non-related carers. Ensuring the framework for doing so is timely and on the side of the child is the focus for many aspects of the Bill.

Currently many children wait too long in temporary care where they develop significant parenting relationships with their temporary carers only for these to be disrupted sometimes after many months or years and sometimes where a number of these relationships have been disrupted. The consequences for the child and for their new carers are profound. The reasons for this are usually a combination of complexity of the issues to be resolved by the local authority and the court in respect of the originating reasons the child became looked after – abuse and/or neglect.

Where adoption is the proposed plan for the child, there are particular issues where the issues centre on the legal severance of the child from their birth family – a state act of major significance. It is a central principle of the current law that only the court can authorise the action of a local authority to place a child for adoption without parental consent and that the local authority should not take any action that might anticipate the judgment of the court. This usually results in lengthy sequential planning for the child – temporary foster care placement(s), court decision, family finding, placement and then adoption order.

Reconciling the need for the child to be placed in a timely way and the resolution of the complex issues by the local authority and the court is challenging and it is the latter that has been given priority with the child being expected to carry the developmental burden this imposes.

One solution to this complex issue has been the use of concurrent planning. Here the child is placed with foster carers who are also approved as suitable to adopt. The plan is to pursue the rehabilitation of the child back to the parents, with the foster carers fully supporting that plan. If that plan does not succeed and the court agrees the adoption plan, then the foster carers become the child’s adopters without any disruption to the child. Concurrent planning has been in operation on a very small scale since the late 1990’s. Its potential has been recognised again more recently with a renewed interest in introducing it into common practice. However, it is important not to underestimate the expertise it takes to implement concurrent planning properly.

A second solution has been explored where, because the circumstances of the birth parents are such that the local authority does not have an active rehabilitation plan, the child is placed with foster carers who are also approved as suitable to adopt. Where the court authorises the placement for adoption, the foster carers become the child’s adopters. There are individual examples of such practice especially where the child is the second, third or more of the birth parents and their circumstances evidence no change. As with concurrent planning, it is important not to underestimate the expertise it takes on a system wide basis to implement foster for adoption properly.

The British Association for Adoption and Fostering have supported the government’s proposals to develop both concurrent planning and foster for adoption as it is a strong and appropriate re-alignment of a system that has not sufficiently been on the side of the child. However, BAAF is concerned that clause 1 is not ‘fit for purpose’ as currently drafted. In particular BAAF is concerned that the clause is confusing, if not misleading, in seeming to privilege fostering for adoption placements over all other placements options. It is not necessary for this to be so and our proposed amendments suggest a solution that would retain the proper exploration of all placement options and support the lawful and the effective development of foster for adoption placements.

Option 1 – Delete the clause

The law as currently drafted supports the use of concurrent planning and foster for adopt type placements. As such it could be argued that primary legislation does not need any further amendment. However, there is no doubt that there are continuing issues about whether such placements breach Article 6 and 8 rights and whether they create a fait accompli where the court is faced with a placement that has already become established and indeed decided by the local authority in breach of the principles of the Adoption and Children Act 2002. The resolution of these difficulties rests more in the lawful and proper introduction of these placement options into local practice where stakeholders understand the objectives and principles of the scheme. The clause as proposed in the published Bill does not resolve these issues by itself and as noted above creates other serious problems.

However we believe the proposed clause as written is not fit for purpose and an amendment that establishes an appropriate framework for foster to adopt type placements is necessary. Below we have suggested two possible options which would either replace or amend the clause.

Option 2 – Delete the clause and replace with the following clause

‘The local authority has a duty to consider as a part of the permanency plan for C, placement with carers who could become the child’s permanent carers where this is in C’s best interests.’

This clause has the advantage of giving a specific direction of travel for the local authority in keeping the child’s needs for a permanent placement firmly on the agenda. It also has the advantage of supporting all placement options as set out in Section 22C of the Children act 1989 and the legal options of Special Guardianship, Residence Orders, long term foster care and adoption. Indeed in Special Guardianship, it is the case that such carers may be approved under existing specific regulations as foster carers prior to the making of the Special Guardianship Order.

It may be argued that ‘a duty to consider’ is an option that may be too readily ignored in practice. However, secondary legislation and guidance can specify how this duty must be demonstrated even if the option is discounted as not in C’s best interests.

Option 3 – Amendment to the clause as published

Page 1, line 9

 

After ‘adoption for C’ insert ‘and are satisfied that a placement falling within paragraph (a) of subsection (6) would not be consistent with C’s welfare’

Page 1, line 12

Delete ‘(7) to (9)’ and insert ‘(7)(c), (8)(a) and (9)’.

At second reading the Minister indicated that the Government does not intend to alter the local authority’s duty to give priority to a kinship placement for a child just because it is considering adoption. Clause 1 as currently drafted, however, disapplies subsections (7) to (9) of s 22C of the Children Act 1989 when a local authority ‘are considering adoption’ for a child. Subsection (7) (a) is the section which requires a local authority to give preference to ‘a placement falling within paragraph (a) of subsection (6)’ – i.e. with a person who is a relative, friend or other person connected with the child, and approved as a local authority foster carer. If this is disapplied, the local authority will no longer be required to regard such a placement as a priority, even at the point where adoption is only being ‘considered’ – i.e. possibly long before the time when a decision is made that adoption is the best outcome for a child.

This suggested amendment would clarify that kinship placements should be looked at first, but would still ensure that local authorities considered the possibility of a ‘fostering for adoption’ placement where appropriate. It would also require the local authority still to try to place the child with his or her sibling, if the local authority is looking after the sibling, (by leaving section 22C(8)(c) still effective) and it would remove the very puzzling provision inserted by the Bill by which s22C(8)(d) is negated when the local authority considers a fostering for adoption placement. S22C(8)(d) requires the local authority to ensure that, if the child is disabled, the accommodation they choose is suitable for the child’s particular needs; it is not easy to understand why this requirement should not apply to a fostering for adoption placement as much as to any other.

Summary

The British Association for Adoption and Fostering fully support the further development of placement practice to ensure that in appropriate cases children are placed in a timely way with carers who are or could become their parents. The system as a whole needs to move more firmly towards recognising the position of the child and the fact that he or she must not carry the burden of adult or system inertia or hesitancy. But it must do so in a way that is fair and just and retains the confidence of society as a whole. The currently published clause does not do this but we believe that the three options proposed could in slightly different ways do exactly that.

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March 2013

Prepared 6th March 2013