APPENDIX 8: LETTER TO THE CHAIRMAN
FROM THE PARLIAMENTARY UNDER SECRETARY OF STATE FOR CHILDREN AND
FAMILIES DATED 12 FEBRUARY 2013
Adoption Legislation: Fostering for Adoption
Thank you for meeting me on 5 February to discuss
the adoption clauses in the Children and Families Bill. I thought
a letter might be helpful to follow up our discussion and to address
your concerns in regard to Clause 1 in the Bill.
When we met last week you raised concerns about what
the proposed duty on local authorities to consider a "Fostering
for Adoption" placement might mean in terms of the Convention
rights of both birth parents and children and whether it would
mean that local authorities will cease efforts to work with birth
families if they are considering this type of placement. I thought
it might be helpful to clarify the expectations that would be
placed on local authorities in relation to the work with birth
families where the authority is considering a "Fostering
for Adoption" placement.
I think it is important to recognise that the proposed
duty must be read in the context of the wider requirements of
section 22C of the Children Act 1989, and not in isolation. As
you know, section 22C sets out the duties of a local authority
in respect of accommodating looked-after children. Under this
section, local authorities must make arrangements for the child
to live with his or her parents (or one of the other people mentioned
in section 22C (3), unless that is not reasonably practicable
and consistent with the child's welfare. This means that a local
authority's priority, when a child is looked-after, must be to
try to rehabilitate the child with their birth family by supporting
the family in overcoming the challenges that led to the child
becoming looked-after in the first place. "Fostering for
Adoption" does not change this.
The local authority may be attempting to rehabilitate
the child with their birth family while at the same time considering
other forms of long-term care, should that rehabilitation be unsuccessful.
The fact that the local authority are considering other forms
of long-term care does not mean that they should stop their efforts
to reunite the child with the birth family while this remains
a possibility.
If the local authority considers that adoption might
be a likely option for a particular child, based on the evidence
available and their assessment, then the duty will require the
authority to consider a placement with foster carers who are also
approved prospective adopters. Because the duty will "bite"
before the adoption decision has been made by the agency decision
maker, and before the court has considered whether to make a placement
order, the duty does not require the local authority to place
the child in that particular placement, only to consider such
a placement. The child could be placed in such a placement while
rehabilitation is underway, which is also a feature in concurrent
planning placements.
In deciding whether a "Fostering for Adoption"
placement is appropriate for a particular child, the local authority
will first need to decide that it is not reasonably practicable
and consistent with the child's welfare to live with birth family,
then the local authority must go on to consider all the other
options, and has to decide which of those other options is the
most appropriate placement for the child. Section 22 C(5) of the
Act requires them to place the child in 'the most appropriate
placement available', and section 22 will apply in relation to
the decision about which placement is most appropriate, and will—as
at present—require the authority to safeguard and promote
the child's welfare.
Local authorities must also act in accordance with
the European Convention on Human Rights in relation to any case
of a looked-after child including where they were considering
adoption as a possible option. Where rehabilitation with the birth
parents remains an option local authorities will need to ensure
they comply with the Convention rights of both the parents and
the child.
I should also point out that we are not making any
changes to the law in relation to the making of placement orders
or adoption orders. So it will still be the case, as now, that
a child cannot be placed for adoption unless the birth parents
give their consent, or the court has made a placement order. Birth
parents will still have the same rights to be heard when the court
is considering an application for a placement order.
I agree with you that illustrative guidance would
be helpful and my officials are considering how best to provide
this. I hope you will find the information in this letter helpful
and I look forward to reading the report of your committee.
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