Education and Adoption Bill

Written evidence submitted by Pete Bentley (EAB 16)

 

I have been professionally involved with adoption for many years initially as an adoption social worker with a Local Authority, then as a consultant employed by the British Association of Adoption and Fostering for 15 tears, an author of independent reports to the courts where the possibility of adoption was involved and currently as the independent chair of a Local Authority adoption panel. I am a registered social worker ( reg no: SW21718).The views expressed are my professional views alone. 

 

Summary: I support the proposed legislation in clause 13 but make some suggested amendments to ensure that adoption is not be singled out for preferential treatment in relation to other forms of permanence . I refer to the judgment in the case of ‘re B-S’ as providing a partial  explanation as to why applications for placement orders have fallen and suggest consideration be given to introducing provisions, not presently in the Bill, aimed to further protect potential adopters from a legal challenge from birth parents when they apply to the Court for an adoption order.  

 

1) I agree with the proposed amendments in respect of broadening the role of regional agencies to encompass all possible avenues to permanence, not just adoption. I also believe that before implementation a proper evaluation of possible 'unintended' consequences should be undertaken by the adoption sector to better inform the wording of the eventual Act - it would be very regrettable if a Bill whose intention is to make the adoption process more efficient turns out to have the opposite effect (particularly if a consequence may be the loss of families currently made available by the V oluntary A doption A gencies). I also support the amendment which proposes substituting the word 'order' for 'direction'.

 

2a) I draw attention to the  reply given by Sir Martin Narey giving evidence on behalf of the Adoption Leadership Board at Q111 in the evidence session of the committee when he stated   ...  'In 1975, there were 24,000 adoptions a year in England. Adoptions have been in long-term decline'.

 

2b) I suggest that the following  quote  from paragraphs  2.2 to 2.4 of the then Prime Minister's consultation paper on a  'review of adoption ' (written in 2000 )  explains the reasons for  the major decrease from  20,000 in the seventies.

 

 The total number of adoptions in England has fallen from around 20,000 per year in 1970 to 4,100 in 1999. This principally reflects the sharp reduction in the number of babies of unmarried mothers given up for adoption, driven by the decrease in stigma associated with illegitimacy and single motherhood, and the increased access to contraception and abortion.....In contrast to the overall number of adoptions, adoptions of children from care have remained relatively stable over the last 30 years, at around 2,000 per year.

 

2c) Should the committee require verification on this could I suggest that the House of Commons Library be asked to comment, or that  evidence be taken from, for example, The British Association of Adoption and Fostering (BAAF)?

 

3a) I also commend the Council of Europe report, published in January 2015 and  entitled 'Social Services in Europe: legislation and practice of the removal of children from their  families in Council of Europe member States', which provides an overview of policy in respect of adoption in other Council of Europe countries. For example it states at para 72 '  England and Wales are really unique in Europe in placing so many children for adoption, in particular in the young age group which is "popular" on the adoption market. 

 

4) In regard to the  major reduction in the number of applications for Placement Orders since the case of ‘Re B-S’ I suggest that the reason may at least be partially explained by  the President of the Family Division s remarks at para's 30,39 and 40 of his judgment : 

 

30. We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt. 

 

39. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.


40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

 

4a) I suggest that the President in 'calling a halt' is arguably implying that  prior to 're B-S'  Placement Order applications had not always  been presented to the Courts with high quality  evidence by Local Authorities and in addition had not been properly scrutinised by children's guardians  and  the Courts.

5) Although not at present part of the Bill it may be appropriate for consideration to be given to including an amendment to Sec 47 of the Adoption and Children Act 2002 to give more protection to potential adopters at the time they apply to the court for an adoption order. However such a provision would of course need to be article 6 and 8 compliant. I will briefly explain my point:

5a) In the case of a child that the Local Authority has a Care Order in respect of, and whom they believe should be placed for adoption, firstly a Court has to make a Placement Order (The intention of the 2002 Act, I would argue, is that it is at the application for a Placement Order stage that the birth parents have their ‘legal’ opportunity to oppose the making of the Order). Then after 'matching' and a decision by the Local Authority that the child should be placed with particular adopters, the child is formally placed. After this stage the birth parents are not allowed in law to apply to the Court to revoke the Placement Order.

 

5b) However, when the adopters formally apply to the Court for an Adoption Order (typically many months after the child is placed with them and after the child has formed attachments to them), the birth parent is able to apply to the Court for leave to oppose the Adoption Order if they can demonstrate both a change in circumstances since the Placement Order was made, and that it is in the interests of the child for leave to be given. If leave is given the birth parent can then go on to oppose the making of the Adoption Order which may or may not be successful. Obviously the very fact of the birth parent applying for leave can be very stressful for the adopters.

 

5 c ) However in the last 6 months or so there have been two cases where a child has been returned to birth family members by the Court following the application for an Adoption Order by the adopters. In both cases there was no criticism of the adopters by the court. Cases like this are rare but prior to these two cases there have apparently been no similar cases since the 2002 Act came into force.

 

5 d ) The two cases are : ’re LG’ ( a child) [2015] EWFC 52 -  where the child after being placed with adopters at the age of 6   months old was removed after being cared for by the adopters for 8 months and 're  A and B'   [ 2014] EWFC 47 (Fam) - where the child was placed with the adopters at 7 months old and removed after being placed with them for 13 months.

 

5 e )  I suggest that the judgments  of  ‘re B’ and ‘re B-S’  have 'opened the door' a little to allow for birth parents to apply for leave to oppose an adoption order at the time the adopters make their application to the court. In particular I suggest that para 74 (vii) and (viii) of the Presidents judgment in re B-S may have significance: 

 

74 vii)  The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

 

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given.

 

5f) My suggested amendment to Sec 47 would be along the lines of only allow ing the Local Authority with the Placement Order ( and not the birth parents ) to oppose an Adoption Order application if that application was made within six months of the child being formally placed under the adoption agency regulations 2005 with the approved adopters. Other proposals may be preferred and the time limit of six months is only a n initial suggestion.

Ref erences :

The Prime Minister s review on adoption (consultation paper) – July 2000

Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member states - - Council of Europe January 2015

Re B [2013 ] UKSC 33

Re B-S [2013] EWCA Civ 1146

Re LG ( a child) [2015] EWFC 52

Re A and B and Rotherham borough council [2014] EWFC 47 ( Fam )

July 2015

Prepared 7th July 2015