Adoption: Pre-Legislative Scrutiny - Adoption Legislation Contents


CHAPTER 3: Matching for Adoption: Repeal of the Requirement to Give Due Consideration to Ethnicity in England

57.  The Government's Action Plan for Adoption gave consideration to the relationship between ethnicity and matching for adoption:

"Where there are two sets of suitable parents available then those with a similar ethnicity to the child may be the better match for the child. Sometimes an ethnic match will be in a child's best interests, for example when an older child expresses strong wishes. However, it is not in the best interests of children for social workers to introduce any delay at all into the adoption process in the search for a perfect or even partial ethnic match when parents who are otherwise suitable are available and able to provide a loving and caring home for the child".[45]

58.  The Government's second draft clause amends section 1 of the Adoption and Children Act 2002 ('the Act') so that section 1(5) does not apply to local authorities and adoption agencies in England.[46] Section 1(5) requires adoption agencies to give due consideration to a child's religious persuasion, racial origin and cultural and linguistic background when placing him or her for adoption. The current text of section 1 is provided in Box 3:

BOX 3

Adoption and Children Act 2002
Section 1: Considerations applying to the exercise of powers

(1)  This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2)  The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.

(3)  The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.

(4)  The court or adoption agency must have regard to the following matters (among others)—

(a)  the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b)  the child's particular needs,

(c)  the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)  the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e)  any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f)  the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)  the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)  the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii)  the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

(5)  In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.

(6)  The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7)  In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—

(a)  coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b)  coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, but does not include coming to a decision about granting leave in any other circumstances.

(8)  For the purposes of this section—

(a)  references to relationships are not confined to legal relationships,

(b)  references to a relative, in relation to a child, include the child's mother and father.

What is the legislation seeking to achieve?

59.  The explanatory note for the draft provision explains that this amendment is "intended to avoid any suggestion that the current legislation places a child's religious persuasion, racial origin and cultural and linguistic background above the factors in section 1(2) to (4)". Sections 1(2) to (4) of the Act require adoption agencies, whenever coming to a decision relating to a child's adoption, to make a child's welfare throughout his or her life their paramount consideration, and to have regard to a range of matters, including the child's age, sex, relationship with relatives, needs, wishes and "any of the child's characteristics which the court or agency considers relevant".[47]

60.  The Ministerial foreword to the Command Paper cites the Action Plan for Adoption, and the commitment contained within that document to reduce delay caused by the search for a perfect or near perfect ethnic match for a child.[48] The Minister's letter to us expressed confidence that this new clause, allied to the Government's wider programme of adoption reform, would "change practice so that we see more children living with their prospective adoptive families earlier, giving them a better chance of living full and happy lives".[49]

61.  It is apparent, therefore, that this change is intended both to overcome any suggestion that legislation places ethnicity above other considerations when seeking an adoptive match and, also, to facilitate the matching of children with their prospective adoptive parents more quickly.

The case for legislation

62.  The Government have previously sought to address the issue of delays in the matching process resulting from ethnicity by amending the Statutory Guidance on Adoption.[50] This amendment, effective from April 2011, stated that "It is unacceptable for a child to be denied adoptive parents solely on the grounds that the child and prospective adopter do not share the same racial or cultural background".[51]

63.  The Action Plan for Adoption cited research published by Professor Elaine Farmer in 2010, which examined the effectiveness, outcomes and costs of different family finding methods and matching practices in adoption.[52] The research was based on a sample of 149 children, of which 46 were of Black and Minority Ethnic origin (BME). The researchers found that "older age, ethnicity and health or development difficulties were all significantly related to delay in achieving a match".[53] Of the 32 BME children in the sample who experienced delay, attempts to find an adoptive family of similar ethnicity was a factor causing delay in 22 cases (which is 70% of the BME children experiencing delay; 48% of the total sample of BME children).[54]

64.  The perceived problem that delay is caused by a search for a 'perfect or near perfect ethnic match' was considered in another study led by Professor Julie Selwyn.[55] This found that the likelihood of adoption was low for both black and Asian children and that the care plan was changed away from adoption for 60% of Asian children in the study group.[56] The findings were more encouraging for children of mixed ethnicity, with 69% placed in adoptive placements by the end of the study. This was, however, still lower than white children, 83% of whom were successfully placed. Most of the BME children who were in adoptive placements had been exactly or partially matched by ethnicity. The research concluded that the most important predictive factor as to whether a child would be adopted or not was age.[57] Ethnicity was, however, still found to be a significant factor.[58] The researchers concluded that, "problems in securing adoptive placements may have arisen through an overly narrow approach to matching".[59] Other potential factors affecting the placement of BME children were also identified:

(i)  minority ethnic children had fewer prospective adopters showing interest in them in comparison with white children;

(ii)  prospective adopters from BME communities could select younger children with fewer difficulties;

(iii)  a failure by social workers to actively promote and publicise BME children as available for adoption; and

(iv)  social workers' pessimism about securing a placement.[60]

65.  Overall, recent research has suggested a number of potential reasons for the delay in placing some BME children. Age remains the most important predictive factor. The search for an 'ideal' matched placement may be a factor in some cases. There is, however, also evidence from the recent research of flexibility in adoption agencies' approach to matching. A key finding in Professor Farmer's study was that "29% of BME children were placed with families whose characteristics did not match their ethnicity, often in order to secure a placement for children with complex needs where the need to place was considered more important than finding an 'ideal' match".[61]

66.  Evidence from those working in adoption did not reveal wide-spread concern about current practice. Barnardo's, whilst agreeing that any delays in placement must be removed, believed that legislation and guidance in this area was adequate and clear in stating that the child's need for a family should take precedence over ethnic matching.[62] PAC, an organisation providing pre and post-adoption support services, thought that the current legislation and most recent guidance made clear that 'due consideration' did not mean keeping a child waiting endlessly, and that the current position was perfectly adequate.[63]

67.  We asked members of the judiciary for their views of the existing legislative provision regarding ethnicity and again were told that the existing framework did not prioritise religious persuasion, racial origin and cultural or linguistic background, and furthermore that delay for those reasons was not acceptable under the current legislation. As HH Judge Swindells put it:

"It is extremely important to go back to the section 1 principles, under the Adoption and Children Act 2002, because there is a clear distinction made between the no delay principle, the welfare considerations and looking at the whole range of options. That is where the court and the adoption agency must have regard to those factors. In section 1(5) it is the adoption agency alone that has to give "due consideration" to those factors of religious persuasion. Those words, "due consideration", were included in that way to give a clear signal that, in relation to the other principles—and in particular the no delay principle—those have a higher precedence in the section 1 principles. There should be no reason for there to be delay, if the adoption agency is simply giving due consideration to those factors".[64]

68.  Coram maintained that, whilst too much weight might have been given to factors of "racial matching" in the past, the situation was now improving rapidly:

"The climate has shifted significantly over the past couple of years. Whilst there is occasional poor practice, the majority of local authorities are now flexible and realistic in seeking families for their BME children, and we make a number of successful trans-racial placements each year".[65]

69.  Officials from the Department for Education, in giving evidence to us, thought that "it is more an issue of practice" than a problem with the current legislation.[66] However, the Department argued that changes to practice might best be enabled through changes to the legislation. The former Minister for Children, Tim Loughton MP, was unsure as to whether legislative change was required, believing that "people are beginning to get the message" but conceded that "some people for various reasons still do not".[67]

70.  Professor June Thoburn considered that the issue of delay caused by ethnic matching was not as widespread as portrayed, but believed that there were anecdotal examples of poor practice which indicated that problems were still potentially occurring.[68]

71.  We have heard evidence that delay is sometimes caused by the search for a perfect ethnic match, although it is unclear how widespread the problem is. Overall, the evidence we have received does not suggest that this is such a significant problem that legislative change is necessary. We do, nevertheless, recognise that section 1(5) of the Adoption and Children Act 2002 gives issues of race, religion, culture and language a greater degree of prominence than the many other factors contained in section 1(4) of the Act. A more balanced approach needs to be achieved.

What effect will the legislation have?

72.  Section 1(4)(d) of the Act requires the court or adoption agency to have regard to "the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant" (often referred to as the 'welfare checklist'). The Government have made clear their belief that this provision will allow considerations of race, religion, culture and language to be taken into account, once section 1(5) no longer applies.

73.  This belief is not shared by all of those who work in the sector. There is concern about the message this legislative change could send out to social workers on the ground. BAAF pointed to Article 20 of the United Nations Convention on the Rights of the Child, which states that: "Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language".[69] They argued that a child's identity was an important part of their development, and that the four factors identified in Article 20 were an important part of that identity. BAAF considered that Article 20 and section 1(5) embodied this 'widely acknowledged' principle. In their view the proposal for section 1(5) to not apply in England brought with it a risk that these important considerations of identity would be neglected when making decisions for adoption matching.[70]

74.  Peter Sandiford, Chief Executive of PAC, stressed the importance of parents being able to understand the identity of the child they were adopting:

"I am not suggesting you would have to go to the Caribbean or wherever to get it, but providing evidence of having an understanding must be there. It should not just be that there has been an attempt to find the right racial family for this child, it has not been possible, and so any family will do. It has to be a family that understands and has committed themselves to that journey".[71]

75.  Coram expressed concern as to how the change will be interpreted, believing that it may lead to considerations of ethnicity being neglected: "It is possible and even likely that the change will be mistakenly interpreted by some social workers as meaning that no consideration can / should be given to any of these matters. This could lead to 'first in the queue' matching".[72]

76.  These concerns were echoed by the Association of Lawyers for Children, who highlighted the need to understand how the change would be interpreted on the ground, stating that: "social workers, who are often poorly supervised and trained, may have an edict that these things are no longer to be considered at all".[73]

77.  We accept that it is important to ensure that appropriate weight is given to religion, race, language and culture when making adoption matches. However, we believe that the Government need to give further consideration to the practical effect of the proposed change to Section 1(5) of the Adoption and Children Act 2002 on social work culture and practice.

78.  One method for providing a better balance might be to introduce regard for race, religion, culture and language into the welfare checklist in section 1(4) of the Act. We tested this proposition with a number of witnesses and there was widespread support from those consulted. Coram thought that this move would be appropriate.[74] The Association of Lawyers for Children shared this view.[75] BAAF thought that this proposal was "worthy of discussion".[76] Professors Julie Selwyn and June Thoburn both agreed with this proposal,[77] as did the Association of Directors of Children's Services.[78]

79.  We appreciate that the Government believe that section 1(5) has given a perception of prominence to considerations of ethnicity, and that this has resulted in more weight being attached to ethnicity than some of the other factors identified at 1(4). The Government are concerned with ensuring that the appropriate weight is given to ethnicity, and to avoid any suggestion that legislation places consideration of religion, race, culture or language above the factors in sections 1(2) to 1(4).

80.  In order to attach the appropriate weight to considerations of religion, race, culture and language, we believe that these factors should be considered alongside those identified at 1(4). We are clear that there is no substantive difference between 'have regard to', at section 1(4), and 'give due consideration to', at section 1(5). We acknowledge that the current section 1(5) applies solely to adoption agencies, whilst section 1(4) applies to both the court and adoption agencies; we do not believe that this presents a problem.

81.  Placing the factors embodied in section 1(5) alongside the other elements of the welfare checklist at 1(4) will rule out any suggestion of prominence or pre-eminence for any one attribute, and will therefore meet the Government's stated aim. To remove mention of religion, race, culture and language altogether will run the risk of these important factors of identity being neglected in matching decisions.

82.  We recommend that regard to matters of religion, race, culture and language be introduced into the welfare checklist at section 1(4). Specifically, we recommend that in section 1(4)(d), after 'background', the words 'religious persuasion, racial origin and cultural and linguistic background' should be inserted.

83.  Box 4 demonstrates how the amended section 1(4) would appear. The newly inserted text is underlined:

BOX 4

Proposed amendment to section 1 (4) of Adoption and Children Act 2002
(4)  The court or adoption agency must have regard to the following matters (among others)—

(a)  the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b)  the child's particular needs,

(c)  the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)  the child's age, sex, background, religious persuasion, racial origin and cultural and linguistic background, and any of the child's characteristics which the court or agency considers relevant,

(e)  any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f)  the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)  the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)   the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii)  the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.


45   An Action Plan for Adoption, paragraph 52. Back

46   Non-local authority adoption societies and agencies are held to be 'in' England if their principal office is in England, as the explanatory notes to the provisions make clear. It should be noted that the Welsh Government have decided to retain section 1(5) in legislation. Whilst we have not received substantial evidence on this point, it has been suggested to us that this might create future barriers to cross-border placements and adoptions. Back

47   Section 1(4)(d) Back

48   Command Paper 8473: Draft legislation on Adoption: Early Permanence through 'Fostering for Adoption' and Matching for Adoption, p. 4. Back

49   See Appendix 3 Back

50   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

51   Statutory Guidance on Adoption, Chapter 3: Preparing, assessing and approving prospective adopters, paragraph 16 Back

52   An Action Plan for Adoption, paragraph 50. Back

53   Farmer. E. et. al (2010). An investigation of family finding and matching in adoption-briefing paper, DFE-RBX-10-05, p. 5.  Back

54   ibid. Back

55   Selwyn, J. et al (2008). Pathways to permanence for Black, Asian and mixed ethnicity children-briefing paper, DCSF-RBX-13-08 Back

56   ibid.  Back

57   ibid. Back

58   ibid. Back

59   ibid. Back

60   ibid.  Back

61   Farmer. E. et. al (2010), An investigation of family finding and matching in adoption-briefing paper, DFE-RBX-10-05, p. 4 Back

62   Barnardo's, supplementary written evidence Back

63   PAC, supplementary written evidence Back

64   Q 793 Back

65   Coram, supplementary written evidence Back

66   Q 48 Back

67   Q 586 Back

68   Q 756 Back

69   BAAF, supplementary written evidence Back

70   ibid. Back

71   Q 140 Back

72   Coram, supplementary written evidence Back

73   Q 661 Back

74   Coram, supplementary written evidence Back

75   Q 661 Back

76   BAAF, supplementary written evidence Back

77   Q 753 Back

78   Association of Directors of Children's Services, supplementary written evidence Back


 
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