Adoption: Pre-Legislative Scrutiny - Adoption Legislation Contents


CHAPTER 2: Placement of Looked After Children With Prospective Adopters

8.  The Government's Action Plan for Adoption: Tackling Delay, published in March 2012, set out the Government's aims of ensuring early permanence for children for whom adoption is the plan:

"Our aim is to help children find loving permanent homes as early as possible and to minimise the damage caused by disruption to children of moving between the placements. This means that wherever a local authority has decided that adoption is the plan for a child, they should aim to place that child as early as possible with the carers who are likely to become their adoptive parents. This can never pre-empt a court's decision that a child should be adopted, but it means that whether or not the child is adopted, they should suffer less trauma from disruption".[7]

9.  The risks of harm caused by delay and moving the child from one foster placement to another are well documented. Professor Julie Selwyn's written evidence to us explained that as a result of successive moves in foster care children are likely to be "highly stressed and become avoidant, not able/wanting to make relationships". They may also develop "externalising behaviour such as being aggressive, loud, lying, and difficult to manage". Mental health problems may be triggered by moves in foster care. The effects of these experiences are often life-long, with one study finding that "instability in care often leads to a downward spiral: worsening emotional and behavioural difficulties, further instability, poor educational results, unemployment and a lifetime of poverty.[8] The aim of minimising the disruption caused by moves between placements is therefore one that we fully support.

10.  The Government's first draft clause amends section 22C (Ways in which looked after children are to be accommodated and maintained) of the Children Act 1989 by adding three new clauses: 9A, 9B and 9C, and making a series of consequential amendments to section 22C. Appendix 4 contains a Keeling schedule for section 22C.[9]

What is the legislation seeking to achieve?

11.  In a written ministerial statement on 7 November,[10] the Minister explained that the draft legislation fulfilled the commitments made in the Action Plan for Adoption. In particular the Government was committed to reducing the time children have to wait for an adoptive placement. They would do this by requiring local authorities to place children as early as possible where adoption was in the child's best interests. In a letter to us on the same day the Minister explained that the draft clauses were designed to:

"create a new duty on local authorities to give preference to a 'Fostering for Adoption' placement. This would apply when they have decided that a child should be placed for adoption with particular prospective adopters but where there is no authority to place the child for adoption. This would be where the court has yet to make a decision on an application for a placement order. The placement would be a foster placement, only changing to an adoptive placement if a placement order is made".[11]

12.  The principal aims of the draft clauses, therefore, are to reduce delay in placing children with their prospective adoptive families, and to minimise the damage caused by moving between placements.

HOW DOES FOSTERING FOR ADOPTION DIFFER FROM CONCURRENT PLANNING?

13.  The Government gave their support to concurrent planning in their Action Plan for Adoption, highlighting the benefits of giving children a stable loving home as early as possible, and letting adults rather than children carry the risk of placement breakdown. They stated that they would like the principles behind concurrent planning to be used more widely, and for children as well as infants. But what are the differences between concurrent planning and fostering for adoption as proposed by the draft clauses?

14.  The Minister, Edward Timpson MP, summed up the differences as follows:

"Concurrent planning, by the very word suggests there are two plans. So you have the plan that you are considering on one parallel, which is rehabilitation to the birth family, and the other plan, which is a permanency decision that is outside the birth family … However, as regards fostering for adoption, there is one plan. The decision has been made that the right long-term placement for that child is adoption, so the circumstances are very different".[12]

15.  The key distinction therefore between the two approaches is the stage in the decision-making process at which the move to a prospective permanent placement takes place. In concurrent planning a child is moved to a foster placement with carers who are also approved prospective adopters before a decision on whether the child should be adopted has been made. In practice, this can mean that a child is placed in a concurrent placement on entering care or very soon after entry into care. If it is decided that the child should be adopted, the foster carers will already have developed a bond with the child, and there will be no need for the child to be moved again as the foster carers are already approved prospective adopters who have been matched with that child.

16.  In fostering for adoption, the move to a placement with foster carers who are also approved prospective adopters takes place after the decision by the local authority that the child should be placed for adoption has been made. In practice, this tends to be some time after care proceedings have been issued and the child will have been in a temporary placement (or placements) up until that decision is made. The child would then be moved to carers who are also prospective adopters prior to a placement order being granted.

17.  Other differences between the two approaches arise from the different stages in the decision-making process at which the move to the foster care placement takes place. Because a child under the concurrent planning model is moved before any decision regarding adoption has been made, the local authority continues to work actively towards rehabilitation with the birth family. Under the fostering for adoption approach there is no work undertaken with the birth parents because the child is moved after the decision on adoption has been taken by the local authority.

18.  The levels of risk engaged in by the prospective adopters in accepting to foster a child whom they hope to be able to adopt is therefore quite different. Under fostering for adoption the child is not expected, subject to the court's decision on the care and placement order applications, to return to its birth family; under concurrent planning the local authority will be working with the birth family to establish whether they are able safely to parent their child. It is recognised, however, that the rate of children returning to their birth families under the concurrent planning model is low. We were told by Ms Martha Cover, Co-Chair of the Association of Lawyers for Children, that the low rate of reunification may be because of the circumstances of the children who are typically selected for concurrent planning, "for instance, the eighth child of a heroin-addicted mother who has not shown up for her drug test".[13]

19.  Concurrent planning has to date been used in very few local authorities but the reported outcomes for children have been good. Coram, a voluntary adoption agency with substantial experience of concurrent planning, has placed 59 children in such placements between 2000 and 2011. Of the 59 children, 54 were adopted by their concurrent carers, and three children were returned to their birth families (a further two children were still subject to proceedings). The average age of the child at adoption was 17 months, compared with the national average of 3 years and 11 months. The average time from entry into care until adoption was 14 months, compared with the national average of 2 years and seven months. All 57 children for whom a decision had been made remained with their concurrent planning carers until a final decision on permanency was reached. There have been no pre or post placement disruptions, nor children returned to care after adoption or reunification with their birth families. Most of the children were placed before their first birthday—in 20 cases they were placed at birth.[14]

20.  At present the Coram concurrent planning programme is run only for children under the age of two. In their written evidence to us Coram recommended that the practice should be extended to all children who enter the care system under the age of two, and that piloting with older children should be considered thereafter. By comparison, the Government's proposal for fostering for adoption is not restricted to any age group.

21.  We support the aim to minimise disruption by reducing the number of placements experienced by children in care. We agree with the Government that where possible children should be placed at the earliest opportunity with the carers who will become their permanent carers. Concurrent planning already delivers these benefits to a small number of children and we would support the wider application of the principles behind concurrent planning in suitable cases.

DOES THE LEGISLATION CREATE A NEW DUTY?

22.  The explanatory note accompanying the draft clauses recognises that it is already legally possible under the Children Act 1989 for children to be placed with carers who are local authority foster parents, but who are also prospective adopters and have been identified as prospective adopters for that particular child. This fact was highlighted by Lord Justice McFarlane who told us that the judiciary could not see "any legal hurdle to that model",[15] and in written evidence by the Association of Directors of Children's Services (ADCS) who did not feel that more legislation was necessary.[16]

23.  We understand from the explanatory note however that "the intention of the amendment is to ensure that local authorities give preference to such placements". We support the Government's intention but we are concerned that the draft clauses do not meet this aim because the duty for local authorities to give preference to such placements only arises in circumstances where the local authority has already decided that the child ought to be placed for adoption and it has matched the child with a prospective adopter who is also a local authority foster parent.

24.  Some local authorities have an excellent track record in early placement. The British Association for Adoption and Fostering (BAAF) however, expressed concern that "local authorities who are less than enthusiastic about these placements can simply avoid this duty".[17] We are aware that there are levels of delay in some local authorities that are unacceptable and need to be improved. These differences in performance, and ways in which they could be addressed through joint working or consortia, will be considered in more detail in our later report.

25.  We share the concern expressed by the British Association for Adoption and Fostering that the new duty contained in the proposed amendment of the Children Act 1989 will have a limited practical effect. Whilst it is the case that the new duty will give priority to a fostering for adoption placement where the local authority has decided that such a placement is suitable and a matched placement is available, it does not place any wider obligation on local authorities actively to consider and promote such placements once the decision has been taken that adoption is the permanency plan.

26.  This appears to us to be a missed opportunity since it would be possible to widen the scope of the proposed duty by introducing a duty to consider a fostering for adoption placement once the decision has been taken that adoption is the permanency plan. This would ensure that local authorities cannot simply avoid the duty and would require them to give consideration to a foster for adoption placement for all children for whom adoption is the plan. In Box 1 we show how the draft clauses could be amended to reflect this proposal.

BOX 1

Our suggestion for amending draft clauses 9A, 9B and 9C of section 22C of the 1989 Children Act
(9A)  Subsection (9B) applies where the local authority are a local authority in England and

(a)  are satisfied that C ought to be placed for adoption, and

(b)  have decided that C ought to be placed for adoption with a person who is a local authority foster parent and has been approved as a prospective adopter, and

(c)  are not yet authorised to place C for adoption.

(9B)  The local authority must consider placing C with a person who is a local authority foster parent and has been approved as a prospective adopter mentioned in subsection (9A)(b), unless in their opinion it would be more appropriate—

(a)  to make arrangements for C to live with a person falling within subsection (3), or

(b)  to place C in a placement of a description mentioned in subsection (6).

(9C)  For the purposes of subsection (9A), a local authority are authorised to place C for adoption only if they have been authorised to do so under—

(a) section 19 of the Adoption and Children Act 2002 (placing children with parental consent); or

(b)  under a placement order made under section 21 of that Act.

27.  We urge the Government to widen the scope of the proposed duty to require all local authorities actively to consider a foster for adoption placement for all children for whom adoption is the permanency plan. Broadening the duty in this way should mean that more children benefit from early permanency.

WILL FOSTERING FOR ADOPTION REDUCE THE TIME CHILDREN HAVE TO WAIT FOR AN ADOPTIVE PLACEMENT AND MINIMISE DISRUPTION CAUSED BY MOVING BETWEEN PLACEMENTS?

28.  We have received evidence suggesting that the new duty would lead to some reduction in delay, and therefore reduce the likelihood of multiple short-term placements and the disruption that this causes. However, it is likely that the reduction in delay would be limited to two months. Because fostering for adoption only applies to children for whom the decision has already been taken that adoption should be the plan, the amount of time saved is the time that it typically takes from the point of decision-making to the granting of the placement order. Coram suggested that evidence from local authorities with whom they were currently working indicated that "the mean time between ADM [agency decision maker] decision and Placement Order is now 2 months".[18] BAAF concurred with this estimate, explaining that:

"most local authorities will not make the adoption decision until all expert evidence and assessments have been filed in proceedings. This is typically only two months before the final hearing and could become less if the expectation on courts to complete care proceedings within six months results in the imposition of tighter time scales".[19]

29.  BAAF was also concerned that the fostering for adoption model would not necessarily reduce the number of placements a child would experience:

"A child will have been removed from his or her birth family and placed in short-term foster care for several months between [when] the local authority has issued care proceedings and the agency has made its adoption decision. Foster to adopt will not prevent a placement move at a crucial time in the child's development with all the consequences that result from this".[20]

30.  In addition, whilst it is highly unlikely that the court would refuse the placement order, there is a small risk that if the care and/or placement orders are refused the child will have been moved unnecessarily from the short-term foster home to the prospective adopters and may then have to be moved again, as the prospective adopters are not looking to be foster carers.

31.  Coram concluded that the point at which the new duty arises, which is after the agency decision maker has decided that adoption should be the plan, may not in reality have much of an impact on delay because it is likely to be very close to the placement order hearing.[21]

32.  We have also received evidence from Mr Justice Ryder on the plans for the modernisation of the family court, intended to reduce delay in care proceedings.[22] It is anticipated under those plans that placement order proceedings would be run concurrently with care order proceedings, once the decision for adoption has been made. The new target of 26 weeks for care order proceedings to be completed would also de facto become the target for placement order proceedings. We expect there to be a significant impact on delay given that the average length of care proceedings at present is 50 to 60 weeks.[23] In cases where it is not possible to complete placement proceedings within the same timetable as care proceedings, the expectation is that the two decisions will be only slightly staggered.[24] Under Statutory Guidance on Adoption decisions regarding permanency must be made no later than four months after a child's entry into care.[25] Therefore, if the new targets for completing care proceedings are achieved, and if placement proceedings are run concurrently, the time lag between decision and placement order is likely to be no more than two months on average.

33.  We put the question of the elapse of time between the decision by the local authority and the placement order to the Minister, Edward Timpson MP.[26] He did not concur with the estimates that BAAF and Coram had put forward. He suggested the time would be closer to three to four months on average, and for some children it was likely to be longer.[27] However, he maintained that three to four months "may be a considerable period of time", especially for a very young child, and that he "would not want to downplay the importance of getting that placement sooner rather than later".[28] We cannot reconcile the different estimates put forward by BAAF and Coram on the one hand and the Department for Education on the other, but we agree that any reduction in the delay experienced by children waiting for an adoptive placement would be beneficial.

34.  We welcome the Government's efforts to reduce the time children have to wait for an adoptive placement, and the disruption caused by moving between placements. We accept that reducing that time by even two months can be of significance for any child, and especially a very young child.

35.  However, we are concerned that much of the delay experienced by children takes place before the decision has been taken that adoption should be the permanency plan. Written evidence from Barnardo's states that "the most significant delays take place early on in the process, in reaching the decision that the child should be taken into care and then that the child should be adopted. There is insufficient planning for permanency at an early stage when a child enters care".

36.  It appears to us that efforts targeted at reducing delay at this earlier stage of the child's journey through the care system, ensuring that the necessary permanency decisions are taken sooner, would enhance the potential impact of the Government's proposals for fostering for adoption. Under the current Statutory Guidance on Adoption[29] the decision on permanency must be taken no later than at the second review, which takes place four months after entry into care.[30] The relevant excerpt from the guidance is provided in Box 2.

BOX 2

Statutory Guidance on Adoption
Chapter 2: Considering and deciding whether a child should be placed for adoption

Planning for permanence

4.  A local authority will need to consider a child's needs for permanence when that child is about to be relinquished for adoption or who is looked after, either because the child is being voluntarily accommodated, is the subject of an interim care order under the Children Act 1989 (the 1989 Act), or care proceedings have been initiated. An appropriate permanence plan should be identified no later than at the second statutory review—the four-month review. This review should consider all the options for best meeting the child's welfare, including the child's needs for permanence—see the Care Planning, Placement and Case Review (England) Regulations 2010 and associated guidance.

37.  Earlier decision-making could be encouraged by amending the current Statutory Guidance on Adoption to emphasise the need to begin formulating permanency plans at the first statutory review, one month after entry into care, and that the second review should be the very latest point at which a decision on permanency is made. The amended guidance should stress the imperative of early permanency planning and the potential benefit to children of earlier decision-making.

38.  We recognise the advantages for the child of being in a secure and settled placement with a clear permanency plan as soon as possible after entering care. In order to enhance the potential benefit offered by fostering for adoption the decisions regarding a child's permanency plan need to be made as soon as possible after the child's entry into care.

39.  More robust and earlier decision-making by social workers is needed to establish whether rehabilitation with the birth family is or is not in the child's best interest. If return to the birth family is not in the child's best interest, the child can benefit from a fostering for adoption placement much sooner. To support this we recommend a review of the Statutory Guidance on Adoption in order to ensure permanency planning is given serious consideration one month after a child enters care.

40.  Furthermore, we strongly support concurrent planning which enables the child to be placed with prospective adopters prior to the adoption decision being made and whilst work with the birth family is continuing.

PRACTICAL APPLICATION OF THE NEW DUTY

41.  We are acutely aware that regardless of whether permanency decisions are taken one month or four months after a child's entry into care, taking advantage of fostering for adoption and the consequent reduction in the delay is entirely dependent not only on the availability of suitable adopters, but also on the capacity of local authorities to start the process of matching children to approved adopters as soon as possible. Mr Ian Bugg, from the Family Law Bar Association, summed up the difficulty as follows: "you are recruiting your foster carers from your already small pool of adopters. You are not recruiting your adopters from a much larger pool of fosters carers".[31]

42.  We have been told that it is "common practice" for local authorities only to seek a family to adopt a child once a placement order has been made.[32] Martha Cover, Co-Chair of the Association for Lawyers for Children, suggested the reasons for this are manifold:

"Social workers are very conservative—rightly so—about upsetting people who have been fully assessed by them as prospective adopters, getting their hopes up that they can have a child and keep a child … I think social workers jealously guard them, not just because of the investment they have made, in terms of time and money, but because they sympathise with their position and they do not want to start to search for a specific family before they have a placement order. That is a pretty entrenched culture. I think you can change it but you have to educate social workers to think in a different way."[33]

43.  The child cannot be placed in a foster for adoption placement until a match has been found and delays in matching will have an impact on the benefit of a fostering for adoption placement. We are aware that adoption panels no longer have a role in deciding if adoption is in the best interests of a child. They do, however, retain responsibilities in the matching process, and consider potential matches between children and adopters. There is the potential that this process could also be the cause of further delay.

44.  A change in social work culture and practice will be necessary to ensure that the new duty is effective in promoting greater use of fostering for adoption. In order for a child to benefit from such a placement the matching process will need to have begun not only before the placement order is made but before the decision that the child should be adopted has been made. That is implicit in the Government's proposals since without this preparatory work the benefit of early placement is lost.

45.  In order to increase the take-up of fostering for adoption and for more children to benefit from the reduced delay it will be vital to address the current practice among some local authorities of waiting for a placement order before family-finding is begun. Unless the preparatory work of matching children and prospective adopters takes place much earlier, the new duty is unlikely to achieve what the Government intends.

OTHER CONSEQUENCES OF THE DRAFT LEGISLATION

46.  A number of submissions raised concerns about the impact on prospective adopters of the Government's proposals. Barnardo's were worried that the Government's proposals to prioritise fostering for adoption placements would lead to a "system which may deter adopters in the future", at a time when recruiting adopters was already very difficult. They were concerned also that a prospective adopter might find their application prejudiced if they did not demonstrate a willingness to "take the risk" of a fostering for adoption placement.[34] The Association of Directors of Children's Services (ADCS) also referred to the "unintended consequence of deterring some prospective adopters from coming forward. It is hard enough to find people who want to adopt without this added risk attached".[35]

47.  It was recognised in several of the submissions that such placements would require a lot of preparation and support, and would be resource-intensive. The Local Government Association (LGA) said that prospective adopters would need to be fully aware of the possibility that they may not be able to adopt the child, and that for these reasons not all prospective adopters will wish to foster to adopt.[36] BAAF argued that in their experience legal uncertainty was one of the factors that made a child harder to place. They argued that because the child will already be placed in short-term foster care for several months during the care proceedings "the advantage to the child of that move being just a couple of months earlier than it would have been under a placement order may not be significant enough to persuade prospective adopters to accept the potential risks of the placement".[37] As a result they claimed it would be extremely difficult to recruit prospective adopters to fostering for adoption as currently constructed.[38]

48.  We recognise the challenges faced by prospective adopters in the fostering for adoption model. The emotional and practical commitment combined with the potential, albeit low, risk of a child not being placed for adoption can be a deterrent. However, this challenge is not unique to the Government's proposals; the same challenges, with a significantly higher risk factor, exist in concurrent planning, and yet there are parents willing to take the risk in order to care for a child from a very young age.

49.  Adoption agencies are understandably concerned about proposals which they feel may deter prospective adopters from coming forward. However, the wider issue of better recruitment and retention of prospective adopters needs to be addressed separately, and not simply in relation to this proposal; we will consider this in more detail in our later report. We do not believe that the merits of fostering for adoption should be dismissed on the grounds that it may put off some prospective adopters from coming forward.

50.  Further concerns were raised about the impact of the proposal on the ability of birth parents to challenge the placement order. The Family Rights Group argued that fostering for adoption appeared to turn back the clock to a time before the implementation of the Adoption and Children Act 2002 which had introduced placement orders. The purpose of the placement order was "to ensure that the real contest between the birth parent or the birth family and the local authority about whether or not the child was going to return home, or should go for adoption, was going to be had before the child was placed".[39] The concern was expressed that under the new proposals a child could be placed and begin to form attachments with a new family, before the birth family had a chance to contest the application for a placement order in court.[40]

51.  We understand from Lord Justice McFarlane that it is currently extremely rare for placement orders not to be granted in cases of children for whom adoption is the plan:

" … for a placement order to be refused is a very rare event indeed. Where you have the care order decision made, quite often with a very clear care plan at that point, and placement order proceedings have persisted so you are not seriously then looking at a family member … it is a rarity not to have one".[41]

52.  This would suggest that on the whole applications for placement orders are made appropriately. It is crucial however, that local authorities have taken all reasonable steps to explore the possibility of the child returning to the birth parents during pre-proceedings work, before the care application is made. In addition, the local authority should have ensured that the birth parents have been effectively involved throughout the decision-making process.

53.  One mechanism for ensuring early engagement from the wider birth family is for the local authority to convene a family group conference at which the child's future care plan is discussed. We note the Minister's comment that "there is a lot of merit in an effective family group conference at as early a point as possible".[42]

54.  We have received evidence that family group conferences vary in their quality and effectiveness.[43] The Family Rights Group have drawn up a pre-proceedings protocol and a key component of this protocol is the convening of a family group conference before a child becomes looked after.[44] We support the principle of family group conferences being incorporated within a pre-proceedings protocol, with specific guidance on how such conferences should be conducted. We invite the Government to give further consideration to this.

55.  If the pre-proceedings work with the birth family has been properly carried out by the local authority, the concern that fostering for adoption would unfairly tilt the balance in favour of the placement order being granted appears to us to be unfounded.

56.  We are not persuaded that the ability of birth parents to challenge the application for a placement order would be adversely affected by fostering for adoption, so long as all reasonable steps have been taken by the local authority to explore reunification of the child with the birth family at the earliest opportunity, and the parents have been able effectively to participate in the decision-making process. We do not believe that such concerns should be allowed to outweigh the potential benefit to the child of moving as early as possible into a permanent placement.


7   An Action Plan for Adoption: Tackling Delay, Department for Education, March 2012, paragraph 59. Back

8   Social work assessment of children in need: what do we know? Messages from research, Danielle Turney, Dendy Platt, Julie Selwyn and Elaine Farmer, March 2011, ref DFE-RBX-10-08, p. 3. Back

9   A Keeling schedule is an aid to understanding the effect of a bill which significantly amends an earlier Act. It reproduces the earlier measure and shows the effect of the amendments embodied in the bill.  Back

10   HL Deb 7 November 2012 WS83  Back

11   Appendix 3 Back

12   Q 825 Back

13   Q 666 Back

14   Concurrent Planning Study Interim Report, Sophie Laws, Rebekah Wilson and Sumi Rabindrakumar, Coram Policy and Research Team, July 2012. Back

15   Q 791 Back

16   Association of Directors of Children's Services (ADCS), supplementary written evidence Back

17   BAAF, supplementary written evidence Back

18   Coram, supplementary written evidence Back

19   BAAF, supplementary written evidence Back

20   ibid. Back

21   Coram, supplementary written evidence Back

22   Q 788; Judicial Proposals for the Modernisation of Family Justice, Mr Justice Ryder, July 2012 Back

23   Q 787 Back

24   Q 788 Back

25   Statutory Guidance on Adoption, Chapter 2, paragraph 4. This guidance is issued under section 7 of the Local Authority Social Services Act 1970, requiring local authorities in their social services functions to act under the general guidance of the Secretary of State. As such, the document does not have the full force of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation. Back

26   Q 825 Back

27   Q 825 Back

28   ibid. Back

29   This guidance is issued under section 7 of the Local Authority Social Services Act 1970, requiring local authorities in their social services functions to act under the general guidance of the Secretary of State. As such, the document does not have the full force of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation. Back

30   Statutory Guidance on Adoption, chapter 2, paragraph 4 Back

31   Q 663 Back

32   Q 635 Back

33   Q 638 Back

34   Barnardo's, supplementary written evidence Back

35   ADCS, supplementary written evidence Back

36   LGA, supplementary written evidence Back

37   BAAF, supplementary written evidence Back

38   ibid. Back

39   Q 681 Back

40   Q 681 Back

41   Q 790 Back

42   Q 816 Back

43   Kinship Care Alliance  Back

44   Family Rights Group, supplementary written evidence Back


 
previous page contents next page


© Parliamentary copyright 2012