Extending Placement Orders to Special Guardianship Orders

Children and Social Work Bill [Lords] – in a Public Bill Committee at 12:30 pm on 12 January 2017.

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“In the Adoption and Children Act 2002, after section 21, insert—

“21A Placement orders: special guardianship orders

(1) In this section a placement order is an order made by the court authorising a local authority to place a child, whom that local authority has decided should be placed under a special guardianship order, with any prospective special guardian who may be identified by the authority.

(2) A “prospective special guardian” is a person who is entitled to apply for a special guardianship order with respect to a child under section 14A(5) of the Children Act 1989.

(3) The court may not make a placement order in respect of a child unless—

(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the Children Act 1989 (conditions for making a care order) are met, or

(c) the child has no parent or guardian.

(4) The court may only make a placement order if the court is satisfied—

(a) that no other permanence order is appropriate and that only a special guardianship order will meet the needs of the child, and

(b) in the case of each parent or guardian of the child—

(i) that the parent or guardian has consented to the child being placed under a special guardianship order with the prospective special guardian identified by the local authority and has not withdrawn consent, or

(ii) that the parent’s or guardian’s consent should be dispensed with.

This subsection is subject to section 52 (parental etc consent).

(5) When making a decision in any proceedings where the court might make a placement order, the court must apply the welfare checklist under section 1(4) of this Act and must consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989), including making no order.

(6) On the making of a placement order and until such an order is revoked—

(a) any existing child arrangement or supervision order ceases to have effect,

(b) no other order may be applied for, and

(c) a care order is suspended.

(7) A placement order continues in force until—

(a) it is revoked under section 24,

(b) a special guardianship order is made in respect of the child, or

(c) the child marries, forms a civil partnership or attains the age of 18 years.””—

This new clause would extend the provisions for placement orders under section 21 of the Adoption and Children Act 2002 to special guardianship orders.

Brought up, and read the First time.

Photo of Emma Lewell-Buck Emma Lewell-Buck Shadow Minister (Education) (Children and Families)

I beg to move, That the clause be read a Second time.

The new clause would extend the provisions for placement orders under section 21 of the Adoption and Children Act 2002 to special guardianship orders. I have argued in discussion with the Minister at various times that there is a need for special guardianship to have the same status as adoption. Children who are placed with members of their wider family under SGOs have had the same difficulties as those placed for adoption. Often, they may never before have met the members of the wider or extended family with whom they are placed, and they may move to another part of the country, as is the case with adoption.

Unlike what happens with adoption, however, because there is no severance of parental rights many children under special guardianship maintain contact with their parents. The parents could have harmed them in some way—hence their removal from their care in the first place—so special guardians, in many instances, have even more difficulties than adopters. They must manage complex family relationships while attempting to build a relationship with the child in their care. I assure the Committee that that is far from easy.

That is why it is vital that when SGOs are made it is on the same robust terms as adoption, and there should be a requirement, as with adoption, for thorough and robust assessment, including placing the child with the new carers to assess the suitability of the placement. Only when those requirements are satisfied should the matter return to court, so that the applicants can be supported in the making of the SGO.

At present there is no comprehensive legal requirement for anyone to conduct a full, thorough assessment of a potential special guardian. The court can make the orders of its own volition. Statistics published by the Department for Education show that 3,830 special guardianship orders were made in the year ending 31 March 2016. The total number of SGOs granted has come close to doubling since 2010 when 1,780 were made. I have stated before in the House that because the process of applying for an SGO is less stringent and because an order can be made without any testing of the placement, meaning that that the process is less arduous and time-consuming than adoption, SGOs are being misused.

I know that the Department has already done some work to look at that, but I am not aware of any figures on SGO breakdown. However, I know anecdotally and from practice that it can be common, yet such an outcome can cause immeasurable harm to all those involved. A clear lesson learned from fostering and adoption is that the assessment process allows families the opportunity to conclude that it is not the right course of action for them. Under the current SGO arrangements family members are far too often hurried through an assessment process that allows insufficient time for proper assessment, and allows them no time to reflect on their commitment to a life-changing and lifelong decision.

In recent years the Government issued a statutory instrument requiring greater attention to be paid when reports on special guardians are prepared for the court to the needs of the child and to the potential of the special guardian to meet them in the short term and throughout the child’s life. However, that is clearly not enough. Courts are not allowed to make adoption orders easily, and they should not be allowed to make SGOs easily. That approach has widespread support from the family judiciary, the Children and Family Court Advisory and Support Service and many directors of children’s services. Knowing the Minister’s professional background prior to coming to this place, I would be very surprised if he was against this new clause.

Photo of Edward Timpson Edward Timpson Minister of State (Education)

I thank the hon. Lady for tabling the new clause, which seeks to improve decisions about whether to place a child under a special guardianship order. I recognise the problems that she is trying to address and agree that we need to improve decision making about permanence options for children who cannot live with their birth parents. Indeed, that is exactly what clause 8 seeks to do—to improve permanence decision making. Uncharacteristically, I not only agree with the synopsis of the hon. Lady but would say that in some ways, she has gone further than I would in trying to resolve the issue. Clause 8 is part of trying to do that. As Andy Elvin of the Adolescent and Children’s Trust—TACT—said:

“All of this is eminently sensible. In practical terms it will raise the evidential bar for all care planning. The biggest impact, rightly, will be on special guardianship order assessments.”

That needs to be addressed because, as the hon. Lady set out, we have seen an exponential rise in the use of special guardianship orders without confidence in the assessment process to establish whether the carer named in the order has sufficient ability to look after that child and meet its specific needs for the duration of its time in their care, up to the age of 18. Clause 8 seeks to look at the longer-term requirement.

Photo of Emma Lewell-Buck Emma Lewell-Buck Shadow Minister (Education) (Children and Families)

I am not entirely clear where clause 8 refers to special guardianship orders. If the Minister could clarify that, it would be helpful.

Photo of Edward Timpson Edward Timpson Minister of State (Education)

Under clause 8, when a court is making a decision about a child’s future permanence arrangements, whatever order that may be under, it has to consider the child’s long-term needs and the abilities of the carer. The carer may be a long-term foster carer or a special guardian, or the child may be returning home, but they have to demonstrate the qualities and abilities necessary to meet that child’s specific needs in not only the immediate but the long term. That is an important distinction.

As the hon. Lady said, one concern is that some assessments for special guardianship orders have been cursory at best. That has led, in some cases, to the breakdown of the placement. We all know that that is the worst possible outcome for the child involved. We carried out an important piece of work with those in the court system, in children’s services and in the charitable sector to understand what was driving those decisions and the breakdown of those placements. Our response was to tighten up and make more stringent the assessment process required before someone is approved as a potential long-term carer for a child under a special guardianship order.

The hon. Lady asked about evidence on breakdown rates. I recall that Professor Julie Selwyn from Bristol University carried out an extensive piece of research a couple of years ago, which showed that the breakdown rate for special guardianships was around 6%—double what it was for adoption. I know the figure for those returning to care was much higher, and I can share that with the hon. Lady once it is to hand.

There is cause to look at rectifying that and coming up with the right approach. We must ensure that in doing so, we give the court the tools it needs to make not only the right decision but a timely one. However, I am not convinced that the approach the hon. Lady proposes in the new clause is the right way forward. I want to take a few minutes to explain why so that she is fully aware of the reasons we do not support the amendment.

Photo of Emma Lewell-Buck Emma Lewell-Buck Shadow Minister (Education) (Children and Families)

Does the Minister not agree that it is important that an SGO placement, as it is the same as an adoption, has an opportunity to be tested to avoid further breakdowns? The Minister quoted Andy Elvin from TACT; the new clause has the support of TACT.

Photo of Edward Timpson Edward Timpson Minister of State (Education) 12:45, 12 January 2017

I am aware of that. Mr Elvin is also very supportive of the changes we are making in clause 8. It is worth reminding the hon. Lady that I do not think there is the universal support for the new clause that she suggested. There are mixed views about what the right approach is and that is why we need to tread with some caution on the way forward.

The majority of special guardianship orders are given to carers with whom the child is living. They are cases where the child already has that relationship or is already in a caring situation. For the few who are not, the proposal would provide an opportunity, as the hon. Lady has said, to test the special guardianship placement in practice and allow the special guardian to reflect on the additional responsibilities they are taking on.

In some cases, that is very sensible. However, we believe that there is already sufficient flexibility to allow for that in the current system if a local authority and court believe that more time is needed to carry out a full assessment of a potential special guardian. Without boring the Committee too much about my previous life at the Bar, I recall a number of cases where there were adjournments of hearings in order for that to take place. Courts have the right to adjourn care proceedings to allow more time for an assessment to take place.

Although we have encouraged courts to complete care proceedings within 26 weeks, the rules are clear that this time can and should be extended where it would be in the interests of children to do so. In many cases, that happens where a potential special guardian has been identified late in care proceedings. We hope that the emphasis now on more pre-proceedings work will ensure that there are fewer cases where at the last minute a new potential carer comes forward.

Other courts have granted care orders to allow the local authority to place the child with a foster carer or kinship carer who is a potential special guardian—that is another route to test a placement—and the special guardianship order is then applied for after the child has lived with the carer for a few months and after a full assessment of their parenting capacity and skills has been carried out.

Although good decision-making is crucial, I am not persuaded that the introduction of a new special guardianship placement order is the best way forward. Indeed, there might be some risk that an order of that kind could encourage delay or instability, if courts and local authorities were to use it as an opportunity for a trial period for an arrangement that has little potential to succeed. That could cause harm for the child in the long term, if they move to a new placement.

In agreeing with the hon. Lady about the synopsis, we part ways somewhat when it comes to the solution. As she has acknowledged, we are already making changes through regulation and in the Bill to ensure that any assessment for a potential carer as a special guardian is as robust as it would be for any other placement. We know that we need to try to improve the long-term stability of those placements to avoid the unnecessary breakdown that we are seeing in some cases. On that basis, I hope that the hon. Lady will agree to withdraw the new clause.

Photo of Emma Lewell-Buck Emma Lewell-Buck Shadow Minister (Education) (Children and Families)

The Minister is consistent in disappointing me today. He said that the majority of SGOs are where children are already living with their carers. What about the minority? Surely they deserve the new clause to be in place, because one placement that breaks down for any child is devastating and we should not be allowing it to happen. I will therefore press the new clause to a vote.

Question put, That the clause be read a Second time.

The Committee divided:

Ayes 4, Noes 8.

Division number 17 Seasonal Working — Extending Placement Orders to Special Guardianship Orders

Aye: 4 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

New Clause 23