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".
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.
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
What is the legislation seeking
11. In a written ministerial statement on 7 November,
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
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
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".
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 birthdayin 20 cases they were placed at birth.
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
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",
and in written evidence by the Association of Directors of Children's
Services (ADCS) who did not feel that more legislation was necessary.
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".
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.
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".
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".
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".
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
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.
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.
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.
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.
Under Statutory Guidance on Adoption decisions regarding permanency
must be made no later than four months after a child's entry into
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.
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.
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".
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
the decision on permanency must be taken no later than at the
second review, which takes place four months after entry into
care. The relevant
excerpt from the guidance is provided in 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 reviewthe four-month review. This review should consider all the options for best meeting the child's welfare, including the child's needs for permanencesee 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
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".
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.
Martha Cover, Co-Chair of the Association for Lawyers for Children,
suggested the reasons for this are manifold:
"Social workers are very conservativerightly
soabout 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."
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
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.
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".
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.
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".
As a result they claimed it would be extremely difficult to recruit
prospective adopters to fostering for adoption as currently constructed.
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
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
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".
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.
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
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
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".
54. We have received evidence that family group
conferences vary in their quality and effectiveness.
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.
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
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
7 An Action Plan for Adoption: Tackling Delay, Department
for Education, March 2012, paragraph 59. Back
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
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
HL Deb 7 November 2012 WS83 Back
Appendix 3 Back
Q 825 Back
Q 666 Back
Concurrent Planning Study Interim Report, Sophie Laws,
Rebekah Wilson and Sumi Rabindrakumar, Coram Policy and Research
Team, July 2012. Back
Q 791 Back
Association of Directors of Children's Services (ADCS), supplementary
written evidence Back
BAAF, supplementary written evidence Back
Coram, supplementary written evidence Back
BAAF, supplementary written evidence Back
Coram, supplementary written evidence Back
Q 788; Judicial Proposals for the Modernisation of Family Justice,
Mr Justice Ryder, July 2012 Back
Q 787 Back
Q 788 Back
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
Q 825 Back
Q 825 Back
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
Statutory Guidance on Adoption, chapter 2, paragraph 4 Back
Q 663 Back
Q 635 Back
Q 638 Back
Barnardo's, supplementary written evidence Back
ADCS, supplementary written evidence Back
LGA, supplementary written evidence Back
BAAF, supplementary written evidence Back
Q 681 Back
Q 681 Back
Q 790 Back
Q 816 Back
Kinship Care Alliance Back
Family Rights Group, supplementary written evidence Back