Our Submission on the Adoption and Children Bill

Adoption and Children Bill – in a Public Bill Committee at on 21 November 2001.

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We refer to our previous evidence submitted to the Select Committee which considered the first Adoption and Children Bill. Most of the submissions we made still apply (save in relation the need for a threshold to be met before a placement order can be made on an accommodated child) and therefore we have not reiterated them here. Instead we have summarized below the key points we wish to raise in relation to this bill which are unlikely to be raised by other agencies:

1. ``Pro-adoption'' culture: Parents with children in need, who are entitled to support services for themselves and their children under Part III of the Children Act, often express to us their reluctance to ask for help because they fear that social services will seek to have their children adopted. If the current focus on adoption, which is underpinned by a government target of increasing adoption by 40%, leads to families being reluctant to seek help, this will not be in the interests of children. We would urge the government publicly to withdraw this target, and to promote good permanency practice though other means, such as regulations and guidance. Otherwise this target may become unduly influential in decision-making for children in care or in need of support, with the result that the welfare of children is undermined in individual cases.

2. Parental Consent to adoption: Clause 45 provides that parents will not be able to oppose an application for an adoption order, where they have given advance consent or a placement order has been made, unless the court gives leave. Such leave is dependent on there being a change of circumstances. We are very concerned that these provisions will mean that in the vast majority of cases, parents will not have their consent to adoption, as opposed to placement, considered. They are therefore unlikely to receive funding from the Legal Services Commission to be heard within the adoption proceedings, and indeed there is no obvious mechanism by which they will even be informed of the forthcoming adoption hearing. This may have a number of consequences:

—birth parents may not know that they can apply for the court's leave to have their consent considered where there has been a change in circumstances;

—birth parents are unlikely to be in court to argue about issues of continuing links between the child and the birth family network, and whether some other order should be made instead of an adoption order as provided for by clause 1; and

—any birth relatives wishing to care for or to seek ongoing links with the child may well not know about the adoption hearing, thereby rendering hollow the provisions in clause 1(4)(f).

Although the Secretary of State has expressed the view that this Bill is compatible with Convention Rights, we believe it may be open to challenge under the Human Rights Act 1998 as follows:

Article 6 states that:

In the determination of his civil rights and obligations . . . everyone is entitled to a fair . . . hearing within a reasonable time before an independent and impartial tribunal established by law.

We submit that this Article clearly applies at the adoption as well as the placement order stage, because an adoption order determines the parents' civil rights to exercise their parental responsibility and to continue to have a legal relationship with their child. If they have no right to be heard at the adoption hearing (unless they can prove sufficient change of circumstances to merit the court effectively granting them the right to be heard), they will be denied a fair hearing.

Article 8 states that:

Everyone has a right to respect for his private and family life.. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of...the protection of health or morals or for the protection of the rights and freedoms of others.

Again, we submit that the severance of the parent-child legal relationship constitutes an interference with this right, both for the parent and the child. In order for it to be deemed ``necessary in a democratic society'' by the court, we suggest that, the parent should be present and have a right to be heard on the issue of whether another kind of order, for example under the Children Act, may more adequately promote the child's welfare. If the parents are absent, the court's decision will be based entirely on evidence adduced by the adopters.

Whilst we are aware that it may be unwelcome to introduce a two-stage consideration of parental consent by the court, we cannot see any way to avoid this without recreating another form of freeing for adoption proceedings, which were found to be unsatisfactory in the Report to Ministers. The key arguments for abolishing freeing proceedings were that they caused delay in placement and potentially placed the child in a legal limbo in which they are not in care, and only have a former parent (rather than a parent) until an adoption order is made. We support the provisions in the current bill to avoid this limbo, namely that the parents continue to be parents, and the child continues to be looked after until the adoption order is made. However, for an adoption order subsequently to terminate this situation without the parents being heard as of right seems to us to be a flagrant breach of Convention rights.

We therefore suggest that the parent should have the right to give or withhold consent to placement at the placement order hearing, and consent to adoption at the adoption hearing. In both cases, the court should have the power to dispense with consent according to statutory grounds (discussed below). In order to allay fears about delay and additional cost, we believe that if there has not been a change in circumstances since the placement hearing, the arguments will be relatively circumspect, but they nevertheless need to be heard in order to comply with Articles 6 and 8.

3. Dispensing with parental consent: Whilst we welcome the fact that clause 1 of this bill introduces the welfare principle into adoption legislation in line with the Children Act, we are very concerned that it has also been introduced as the ground for dispensing with consent in clause 50. It was recognised in the Report to Ministers that the irrevocable and draconian nature of an adoption order was such that the grounds for making this order should be distinguished from the grounds for other orders which can be made under the Children Act. It therefore proposed the ``so significantly better'' test to dispense with parental consent, namely that:

adoption would be so significantly better for the child than any other option as to justify overriding the parent's wishes.

This proposal received widespread support from a range of agencies within the consultation process, but was never included in any of the bills which have been drafted. We would urge the Committee to replace the wording in clause 50 (1)(b) with this wording. It would be applied by the court specifically in relation to dispensing with parental consent, and in addition to the welfare principle in clause 1 which requires the court to consider the welfare checklist, including whether all the alternatives to adoption have been adequately explored and eliminated. Without such an amendment to this bill, there will, in effect, be no substantive test for dispensing with parental consent.

4. Contact and adoption: We are concerned that the Bill fails to recognise the substantial changes that have taken place in adoption knowledge and practice. Research is increasingly confirming:

—that for children and birth parents, their relationship does not end when an adoption order is made, and

—that birth relatives can also provide continuity and support for adopted children.

We would want to address the Committee on how the bill may be improved regarding the issue of openness, contact and maintaining connections. For example, we suggest that clause 1 should be amended to place a specific duty on the court to consider, when applying the welfare checklist, whether a contact order should be made at the same time as a placement or an adoption order. This will place contact and openness on the agenda as one of the child's needs, whilst leaving full discretion to the court about what arrangements, if any, for contact and/or openness about the child's origins should be made. It will help to ensure that adoption is geared towards meeting the child's, as opposed to the adults', needs.

5. Kinship placements: We welcome the provisions in clause 1 which require an investigation of alternative placements within the family network before a placement or adoption order can be made. However, given the potential disruption to the child of being placed permanently outside their family, we recommend that these provisions are reinforced by an explicit statement in clause 1 that kinship placements ought to be the placement of first choice for children who cannot live with their birth parents.

6. The status conferred by adoption: We propose a change in the wording of clause 64 to more accurately reflect the status conferred by adoption. Clause 64 currently states that the adopted person be treated in law `as if the person had been born as a child of the marriage' which promotes the legal fiction that the child was born to the adopters. This wording is misleading to the child and does not accurately reflect their history. We suggest the Committee should amend this clause to read:

That the adopted person is treated in law as the legitimate child of the adopters from the date of the adoption order.

7. Special Guardianship: We welcome the proposals for Special Guardianship and would like to address the Committee on the results of surveys and interviews we have done with grandparents and other relatives who are caring for children. We enclose a copy of Second Time Around—A survey of Grandparents Raising Their Grandchildren. This report highlights the needs of grandparents and draws particular attention to their need for financial support and other support services.

8. Adoption Support for birth relatives: We recommend that birth parents, siblings and relatives should be equally entitled to an assessment for adoption services as children who have been adopted and their adoptive parents. This may be crucial to the success of arrangements for openness/contact where such arrangements have been decided to be in the child's best interests.

9. Notification of child's death: We propose that an obligation is placed on adopters to notify the placing agency in the event that the child dies before their eighteenth birthday or the placement disrupts, so that this information can be passed on to the birth parents and relatives.