Children and Families Bill

Memorandum submitted by the British Association for Adoption & Fostering (BAAF) (CF 82)

BAAF is the UK’s leading charity and membership organisation for both local authorities and the voluntary sector. In 2011/12 we helped find families for over 700 children through our family finding services, we dealt with many thousands  of enquiries from professionals and the public through our UK-wide general enquiries service and we sold over 45,000 books on adoption and fostering. BAAF is a multi-disciplinary organisation for those working in social care, legal and the health professions.

Clause 2 - Repeal of requirement to give due consideration to ethnicity: England

Introduction

The evidence and arguments for the repeal of section 1(5) of the Adoption and Children Act 2002 have been extensively addressed in the pre-legislative scrutiny Report of the House of Lords adoption legislation scrutiny committee. In that report the House of Lords rejected the proposal to delete section 1(5) and recommended that the duty to ‘giving due consideration to a child’s racial origin, culture, religion and language’ remained significant but that if the clause suggested undue balance is given to these four factors, then incorporating the duty into section 1(4) would address the problem. The government have ignored this recommendation despite the weight of the evidence considered by the House of Lords Committee.

The House of Lords report is comprehensive, detailed and proposes a workable solution; it is therefore with some reluctance that BAAF is presenting further written evidence in respect of clause 2. However, the proposed clause in the Bill as introduced is significant and does not provide any workable solution to the problems that do exist.

There are a number of issues:

1. The emphasis in the government’s argument is solely on ethnicity while the clause is concerned with racial origin, culture, religion and language. Ethnicity is not mentioned in the current clause and ethnicity is a concept that is different to the four that are identified. The proposal is therefore to delete something that is not in the current clause.

2. The current clause is expressed as the adoption agency having a duty to give ‘due consideration’ to the issues named. ‘Due consideration’ is an entirely proportionate phrase and cannot be construed as meaning overriding, exclusive or a determining consideration. There are no legal judgements handed down that clarify this phrase as it simply does not lend itself to complex interpretation in practice. The proposed deletion removes exactly what the status of these issues should be – ‘due consideration’.

3. Giving due consideration a child’s racial origin, culture, religion and language is not exclusive to issues of matching but to every aspect of adoption. The current clause is focussed on the placement of the child for adoption but the point of matching is the start of a life-long process. Adoption agencies will be expected to specifically address those issues faced by the child and the adoptive family after placement as they establish various and unavoidable aspects of the child’s identity and history. Where adoption support services are provided at any point in the child’s life through to being an adult, due consideration will need to be given in a variety of ways to the child’s racial origin, culture, religion and language. It is not an issue that in any way is limited to the point of matching but the government’s explanatory notes do not acknowledge this at all. Racial origin, culture, religion and language become embedded into the fabric of adoptive family life whatever that might mean given the similarities and differences between the child and the adopters and how these change over time. It is widely recognised that adoptive families need to have the understanding and resources to manage these issues and insofar as it is possible, agencies must assure themselves at the point of matching that this is likely. The deletion of the clause signifies a deep misunderstanding of the nature of the issues to every adoptive family as they construct their lives together.

4. The evidence made available by the government to support the deletion of the clause is misleading. Children from minority ethnic groups who have adoption as the plan are typically children from mixed ethnicity backgrounds. This reflects the very significant growth in the minority ethnic population in the U.K. in general in recent years. These children defy any simple definition of their ethnicity, culture, religion and language and it is typically multi-dimensional. However, these children leave care through adoption at the same rate as do white children – over recent years at about 14%-15%. The numbers of white children over recent years is approximately 2,700 and mixed ethnicity children, 350-400 each year. While the specific arrangements for matching the mixed ethnicity children are not known, there is no clear evidence that the current clause prevented these children from being matched appropriately and in a timely way. When the figures for Black and Asian children are considered a different picture emerges. The rate of adoption is 3% for Asian children and 4% for Black children. In terms of timescales Black children take on average about one year longer to be adopted than children of other ethnic groups. In terms of number this approximates to about 50 Asian children and 100 Black children per year. The government’s argument for deleting the clause is based on these two groups and Black children in particular. While there is an important and serious issue to be addressed about the position of Asian and Black children, changing the law is extremely unlikely to be a solution and the argument on which it is based is misleading. Even if the government’s expectation is that removing the clause would open the gates to Black and Asian children being more speedily placed with white adopters, for which the evidence does not exist, then the child’s racial origin, culture, religion and language will still need to be given due consideration.

5. The government does accept that racial origin, culture, religion and language will still play a part in placement planning and agencies are not being banned from considering it. But the message in the deletion of subsection 1(5) is confusing and misleading and is unlikely to produce a solution to the problems that do exist. A solution in primary legislation is proposed by the House of Lords scrutiny committee in making appropriate amendments to subsection 1(4). If that amendment was enacted, this should ensure that due consideration to a child’s racial origin, culture, religion and language continue to be recognised as playing a proportionate part in what are life-changing decisions for the child and their adopters.

Amendment

Adoption and Children Act 2002 Subsection 1(4) (d)

the child’s age, sex, background and any of the child’s characteristics including their racial origin, culture, religion or language which the court or agency considers relevant,

Clause 3 - Recruitment, assessment and approval of prospective adopters

Introduction

The proposal to give the Secretary of State reserve powers to require a single, group of or all local authorities to make arrangements for other adoption agencies to perform one or more of their duties to recruitment, assess or approve prospective adopters is a major and radical change to existing arrangements.

It is accepted that that there is a serious mismatch in the number of adopters recruited and approved as suitable and the number of children who have adoption as the plan. This problem exists both in terms of absolute numbers with a year by year shortfall of 500-600 adopters with a further 2,000 adopters required for children who are currently waiting to be placed. There is also a shortfall of adopters who are suitable to adopt children with disabilities, older children, children from minority ethnic backgrounds and children in sibling groups.

An analysis of current arrangements identifies a lack of incentive for local authorities to address a national recruitment crisis. Current structural arrangements plus economic factors tend to focus on each local authority addressing its own particular recruitment and assessment issues in relation to the children it has responsibility for or anticipates it will have responsibility for. This picture is mediated by long standing Consortia arrangements in most areas where issues of supply and demand are addressed across local authority boundaries and this often includes the voluntary adoption sector. However, these arrangements do vary and are variously effective.

There have been a number of initiatives over the last year to address these serious issues. These include the introduction of adoption scorecards, the commissioning of adoption diagnostics for local authorities with a poor level of performance, a review of and proposals to streamline the adopter approval process, the adoption improvement grant. The unexpected introduction of Clause 3 into the Bill has also resulted in an urgent review by the Association of Directors of Children’s Services, the Local Government Association and the Society of Local Authority Chief Executives (SOLACE) to explore the actions that must be taken to address this national crisis. The sector as a whole recognises the importance of this and the voluntary adoption sector has made a very significant contribution to this in committing itself to increasing the number of adopters approved by its members.

The clause itself has been experienced as a very big stick to wave over the sector, one that does not itself recognise the significant efforts and commitment of the sector to find urgent solutions. As a solution itself, it is extremely difficult to identify its positive contribution. At the core of recruitment, preparation, assessment and approval is a social work workforce with the commitment, knowledge, and expertise to undertake the challenges of adoption work. Other attempts to change the structural arrangements for delivering social work have had very mixed results – the piloting of independent social work practices is one example. The current arrangements embed one adoption function – adopter recruitment and approval – alongside other adoption functions – children’s care planning, matching and support and more generally other services for children such as foster care. High degrees of working together are essential to timely, effective and efficient service delivery. This is the challenge accepted by the sector as a whole. The wholesale disruption of this by inventing different organisational arrangements is an experiment that has a very weak evidence base as current crises in large public sector organisations demonstrate. Larger and different is not itself a self-evident solution. The de-moralising, confusing and disruptive effect along the way is only too clear to see. And ultimately this is an experiment with children’s lives.

BAAF believes solutions to the recruitment crisis is currently being actively pursued by the sector and Clause 3 is at best an irrelevant and at worst a damaging distraction

Amendment

Delete Clause 3

Clause 4 - Adoption support services: personal budgets

Introduction – The core place of support in adoption

There has been long standing recognition that the placement for adoption and the making of an Adoption Order do not resolve once and for all the issues that led up to adoption becoming the plan. Adoption is a life long issue that impacts on the child, the child as an adult, the adoptive parents, adopted and non-adopted siblings and other birth family members. This is acknowledged in the Adoption and Children Act 2002 where the range of services the local authority is responsible for providing is specified in section 2(6) and then in Regulation 3 of the Adoption Support Agencies Regulations of 2005. Entitlement to an assessment for whom and for what service is detailed in the Adoption Statutory Guidance, Chapter 9, paragraph 7 and the framework set out in that paragraph is detailed and comprehensive. The prescribed services are identified as:

1. Services to enable discussion of matters relating to adoption

2. Assistance in relation to arrangements for contact

3. Therapeutic services

4. Services to ensure the continuation of adoptive relationship

5. Services to assist in cases of disruption

6. Counselling, advice and information

7. Financial support

The assessment for adoption support services is set out in section 4 of the Adoption and Children Act 2002. Subsection 1 sets out the duty to undertake that assessment. Subsection 4 establishes that having undertaken that assessment, the local authority must decide whether to provide the assessed service(s). Subsection 4 is identified as providing an opt-out for local authorities and creating serious difficulties for those assessed in getting the support they need. It must be noted that while this gap between assessment and provision is enshrined in primary legalisation, secondary legislation does not accept or envisage such a simple ‘opt out’. For more detailed exploration of this issue see BAAF’s written evidence set out in response to clause 5.

The evidence set out in the government’s policy analysis in support of this provision argues that ‘good quality support during and after adoption is valued by parents and can have a real impact’. It is difficult to argue with this although the evidence is rather thin. There are numerous issues in identifying what support is needed, when it is needed, what makes for good quality and what effectiveness might look like. Some of this results from the very large number of people who are affected by adoption at different points in their lives. This includes those immediately affected – the adopted child and the adoptive parents – and that is how the policy statement is framed. But there are others including the birth parents, siblings placed elsewhere, birth children in the adopted family etc. etc. And these change over time. The child will become an adult and may quickly want birth records counselling and all that may follow from this, or they may delay this until later in adulthood or indeed never. Adoption creates a immediate family network but that network extends and includes a large number of people who may need to access support in addressing important issues that result from adoption over the course of their lives. While it is understandable that there should be significant emphasis on ensuring the adoptive family has access to the resources and services it needs to ensure the stability and quality of the placement, any policy development and legislative change must ensure that it continues to be applicable and effective for all those who are already identified in the existing legislative framework as falling within its scope.

One of the key issues in the provision of effective support is the range of services that might be required. This includes the services provided to maintain contact whether this is intermediary services to support letterbox contact, services to maintain direct contact especially with siblings but that may include a range of other people, intermediary services for adopted adults and their birth parents, financial or practical support including house extensions and modifications, cars or respite care.

Lastly there are questions of effectiveness. Although there are often strongly held views about effectiveness of provision, the evidence base is weak. Some of this results from the wide range of provision that falls within adoption support, some from limited understanding of the nature of the problems to be addressed and some from a limited understanding of what might help. There are rarely single causes to problems with a single solution but multiple causations that interact over time. Considerable investment has been made in recent years in the development of parenting programmes funded by government and these include those developed by the Oregon Social Learning Centre and implemented by the National Implementation Team at the Maudsley Hospital, Fostering Changes also developed at the Maudsley and Effective Adoptive Parenting at the Institute of Psychiatry. While the first two focussed initially on children in foster care, they have more recently been developed to include children in adoptive families. Effectiveness is core to each of these programmes. However, as substantial as the investment in these programmes have been, they are by no means the only available programmes and there are many others with a different emphasis and conceptual framework with comparable claims to effectiveness. Similar issues arise in relation to other forms of intervention whether it is therapy with children, therapy with the whole family or group work with adopted children or adoptive parents. There is not a coherent, well-established, evidence base of interventions or the provision of services in adoption support. That is not to say such services are not available, indeed there is and has been a considerable investment in the provision of such services but it is widely recognised that it is not enough given the challenge of adoption. In further development of policy in adoption support, it is essential that this does not rely on an over-simplistic analysis of the current problems

The government’s policy argument is that a significant part of the problem with adoption support is the lack of ‘choice and control over the provision of adoption support services’ and feelings of stigma that adoptive parents feel when asking for help. Personal budgets are identified as a solution with the policy document arguing that ‘Adding some control for adoptive parents, so that they feel less subject to decisions made by others, can only help to improve this situation’. This is a weak and poorly formulated argument.

In the written evidence submitted to clause 5, BAAF argues that the regulatory framework that determines how an assessment for adoption support is to be undertaken is based on individual interviews in most cases, a written report which is then subject to consultation with the person on whom the report was written including the right to make representations within specified timescales. It is difficult to see that this is envisaged as anything other than participatory and co-operative especially when it is supplemented by the professional framework of the person undertaking the assessment. It would be assumed that within this assessment process, significant consideration would be given by the assessor to any anxiety the person being assessed might have of being blamed or held to account for the problem being assessed. If the existing framework is seen to be ineffective, and there is nothing to suggest that in itself it should be, then nothing in this clause seeks to change or improve it. It would also continue to be the basis for any new system that would result from the passing of clause 4 into legislation.

It is commonly identified that the point at which the provision of support breaks down is following an assessment when there is no duty to provide the services identified in the assessment. There is a strong argument that the duty to assess must be accompanied by a duty to provide. That is certainly the case in relation to the provision of health services although that is usually subject to significant control by the assessing health professional and the controls that are exercised on them by their professional frameworks or commissioners of services or the National Institute of Health and Clinical Excellence. However, clause 4 does nothing to address the issue of the gap between assessment and provision as it will only come into force where the local authority had agreed to provide adoption support services following an assessment. The clause if anything is misleading in its attempt to address the most serious issue in adoption support – the provision of support as a statutory duty with the accompanying availability of the resources to enable this. The effect of the clause is likely to be minimal and should not be read as a reassuring positive development to the problems that currently exist.

Personal Budgets

The development of a framework of personal budgets may have some merit to it that should be explored. It may be that those affected by adoption and requiring support do have a view about service providers beyond those that local authorities typically access or have service contracts with. There may a benefit to them of being able to exercise that choice resulting from the application of the process as set out in Clause 4. However, there are a number of important questions that need to be addressed:

1. What kinds of adopted related issues lend themselves to the provision of personal budgets?

2. What happens to contact arrangements over time if the adopter decides to use an allocated budget for contact to effectively stop contact?

3. What happens to the agency budget to provide regular groups for adopted children if a small number of adopters decide to use their part of the budget for an alternative form of individual provision?

4. What happens to an independent adoption support service provider if the local authority that contracts with that provider finds that adopters that would typically be referred, use their personal budget to access alternative services? Would that service provider survive?

5. What happens in complex cases where a number of services are required to coordinate the provision – the local authority, the child’s school, child and adolescent mental health services?

6. What happens if adopters focus on the child’s difficulties in using their budget when it may be more effective for them to focus on their parenting skills?

7. What happens if adopter’s access services which are not evidence based, unsafe or inappropriate in relation to the needs of the child?

8. What happens if adopters’ commission services and find that these services have not met their needs?

These and other questions need to be answered. They are fundamental to the design of core and critical services on which the future of adopted children, adopters and others are highly dependant. Personal budgets are an untested experiment on those people. There are undoubtedly significant issues to be addressed in the further development of effective and timely adoption support services but an experiment needs to be carefully constructed and fully evaluated if significant damage is not be caused along the way.

If the clause is passed in its current form, it assumes the experiment has proved to be effective when it has not. It is therefore prosed that the powers to introduce personal budgets should only be come into law as a reserve power until the proposal has been fully evaluated.

Amendment

The Secretary of State may give directions requiring local authorities in England to make arrangements to implement personal budgets for the provision of adoption support as set out in Clause 4.

Special Guardianship

Children who are made subject to Special Guardianship are exactly the same group of children who have adoption as the plan. The development of special guardianship as family placement policy has always recognised that. The Adoption and Children Act 2002 amended the Children Act 1989 to introduce section 14F which sets out a parallel duty on local authorities to assess for special guardianship support. A parallel set of regulations and statutory guidance means that all the issues identified above can be found in relation to special guardianship support with appropriate modifications given the specific differences. It is not acceptable, as the Bill does in clause 4, to introduce a difference that separates adoption from special guardianship when the children are the same children.

Amendment

To introduce a clause into the Children and Families Bill that amends section 14 of the Children Act to include a reserve power for the Secretary of State requiring local authorities in England to make arrangements to implement personal budgets for the provision of special guardianship support in exactly the same way as the clause does for adoption.

April 2013

Prepared 19th April 2013