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Time for a Rethink of Adoption Decisions?

About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

There are real concerns about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.

These were the comments made by Sir James Munby, President of the Family Division of the High Court, in September 2013 in the Court of Appeal's decision of Re B-S . The case related to two children, aged 4 and 5, who had been fostered against their mother’s wishes. The mother had unsuccessfully appealed on the grounds that there had been 'an astonishing change in circumstances' since the care and placement order. Sir Munby took this opportunity to express concern at the poor practice employed by local authorities, with little evidence being given to courts regarding the pros and cons of adoption and other possible resolutions when dealing with vulnerable children. Sir Munby said that proper evidence must be provided by local authorities and social workers in order for judges to reach a fully-reasoned recommendation for a child’s future care plan.

Prior to Sir Munby’s comments, the adoption procedure operating in the UK seemed to work efficiently after David Cameron’s vow in 2012 to make the procedure “fairer and faster”. This promise involved several changes, including placing social workers under legal obligation to look at the national adoption register if a local placement is not found within 3 months; creating a 26 week limit for court hearings regarding care proceedings; and the creation of the Adoption Leadership Board (ALB). These changes are contained in the Children and Families Act 2014, which received royal assent in March 2014. Following the government’s suggestions of such provisions, children completing the adoption process reached 5,000 for the year 2012-2013, a rise of 25% and a sure-fire success for the Conservative government.

In the Department of Education’s Action Plan, published in March 2012, it was stressed that the government intended to speed up the adoption procedure and increase the number of completed adoptions. This was in order to get a higher number of vulnerable children permanently placed with suitable families, and to make such families feel they were treated well by the state during the entire process. The Action Plan stressed that they wanted to make suitable adopters feel rewarded by the process, rather than keep them and a vulnerable child waiting for a placement order for long periods of time. At the time of being published, the Action Plan stated that on average, a child would be in care for 21 months before an adoption was successfully completed.

However, following Sir Munby’s criticisms in Re B-S last September, the number of children being put forward for adoption has almost halved. Between June and September 2013, there were 1,830 local authority decisions to put children forward for adoption; between April and June 2014 this figure fell to 960. In direct contrast, it was estimated at the end of March 2013 that 6,000 children had received a placement order from the court and were waiting to move in with a family. At the present time, significant drops can also be seen in the amount of court orders allowing a child to be put forward for adoption as well as placement orders issued by the family courts. Upon these figures being published, Sir Martin Narey, chairman of the ALB, said 'it is clear from my discussions with social workers, local authorities and voluntary adoption agencies that there is a belief the law has been fundamentally changed by a number of court judgments.' To tackle this confusion, Sir Narey announced the creation of a ‘myth-busting guide' to clarify what those judgments meant for the adoption procedure, in order to rule out any confusion local authorities may have regarding court decisions such as Re B-S.

The Adoption Leadership Board Report

The report issued by the ALB in November 2014 provides three principal messages to all local authorities, independent adoption agencies and social workers. These are:

  1. The recent judgments (including Re B-S) do not alter the legal test for adoption.
  2. The courts must be provided with expert, high quality, evidence-based analysis of all realistic options for a child and the arguments for and against each of these options. This does not mean every possible option; rather, the judgment in Re B-S states 'the evidence must address all the options that are realistically possible'.
  3. Where such analysis has been carried out and the adoption agent is satisfied that adoption is required in order to meet the best interests of the child, it should be confident in presenting the case to court with a care plan for adoption.

The report states that adoption should be seen as a 'last resort', as it requires severing all ties between the child and their birth family. It also outlines, in line with Section 1 of the Adoption and Children Act 2002, that the court must be satisfied that there are no other realistic courses of action which may be in the child’s best interests, whose welfare should always be seen as paramount. Other possible options suggested in the report include a reunification with the child’s birth family, the child being placed with extended family or close friends, or a foster placement. Such options are highly subjective; it will vary from case to case whether an option is realistic or unrealistic in the circumstances. The report says adoption agents are required to look at the pros and cons of each “realistically possible” option, taking into account which option would be best for each individual child. The report stresses that the law on this has not changed; 'it is exactly the same law under which we have seen a significant increase in numbers of adoptions over recent years'.

In October, prior to the ALB report being published, Sir James Munby took the opportunity in Re R to comment on the ‘post Re B-S landscape’. He expressed concern at the uncertainty and misunderstanding currently widespread amongst adoption agents, with some ‘shying away from permanency’ and ‘bending over backwards to keep a child in the family’ as a result of the Re B-S judgment. Sir Munby emphasised that Re B-S had not changed the law, and reiterated that adoption should certainly be sought if the adoption agent could be sure it was in the child’s best interests. Furthermore, Sir Munby reported that local authorities and social workers now felt unfairly criticised and patronised as a result of the uncertainty in Re B-S, with additional and unnecessary assessments being carried out instead of immediate action being taken where a child requires urgent protection. It is obvious that a balance must be struck between acting quickly to ensure a vulnerable child’s safety, whilst at the same time making sure all procedural requirements are met. But given the subjectivity of care proceedings, how can such a balance be attained in each individual case?

Further to Sir Munby’s comments in Re R, the ALB report also places emphasis on the confusion felt by many adoption agents on which alternative options to explore in any given case. The report stresses that unrealistic options need not be explored by the agent, and should not be presented in an appeal for adoption; rather, the focus should be on options which would best fit the child and their family. An example of an unrealistic option which should not be explored could be where a child has been severely neglected by their parents and removed by social services as a result, with the parents making no attempt to make amends. Here, it would be an extremely unrealistic prospect to have a reunification between the child and his or her parents.

In Re B-S, Sir James Munby stated that 'there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.' Evidence should, according to the report, consist of a thorough assessment as to whether adoption would be best for the child’s overall welfare. Under the Adoption and Children Act 2002, considerations for this include asking whether a child would benefit from belonging to a life-long and legally-permanent family as opposed to remaining in care, or being placed with an unrelated person under a special guardianship order, which would cease when the child turned 18. The evidence from both sides should consist of clear assessment and analysis with reference to individual facts and history of the guardians’ behaviour.

The report asserts that decisions on a child’s future care plan should not be rushed, as was stated in Re B-S. However, the need for fairness to the child’s family must be balanced with the impact a delay may have on the child. If any of the alternatives to adoption the family may wish to explore are completely unrealistic, they should not be given priority and should not be presented in court.

The report: a clearer and better solution?

It is clear from the ALB’s report and Sir Munby’s comments in Re R that the adoption process is a subjective procedure. It is therefore no wonder adoption agents have sometimes had trouble interpreting the law and applying it to each individual case. Despite the ALB being our current government’s creation, it would seem that the advice given by the courts and the ALB has been somewhat contradictory to government advice. In the 2012 Action Plan, the government appeared to be citing adoption as the best option. It is therefore unsurprising that the amount of children being put forward for adoption increased rapidly following its publishing. However, Sir James Munby’s comments in both Re B-S and Re R appeared to contradict the government’s assertion. These judgments, along with the ALB guidance, all stress that adoption is not always the best solution.

It is difficult to predict the success of the new guidance in gaining the right outcomes for each vulnerable child, given the short amount of time that has passed since the ALB report was published and the Re R judgment was passed down. However, it is likely that such guidance will help agencies make the correct decisions for individual children. This may not bring the number of children completing adoption procedures to the high percentage seen last year, but will hopefully ensure that the procedure is not rushed with inadequate evidence, and therefore should prevent wrong decisions being made. All too often judgments as important as Re B-S are not acted upon adequately, and it is commendable that guidance has been issued in line with court decisions to make sure vulnerable children are protected.

The ALB report stressed that thorough assessment of all reasonable options should be provided by adoption agents. However, this may only be possible if adoption agents are given adequate resources to fully research each option, and it is naïve to think procedures will be improved if such resources are not provided. That said, the requirement for thorough research to be conducted into all available options applies to the courts as well as adoption agents. The guidance given by the ALB should be directly applicable to family judges to ensure the fluidity of cases and a thorough argument as to what the best option for a vulnerable child may be. Overall, the ALB and Sir Munby’s guidance paves the correct path in improving the adoption procedure for the vulnerable child, their family and the adoption agents who deal with such cases.

There is further danger of this sound guidance being contradicted by previous government advice. By introducing provisions such as a 26-week limit for adoption appeals to be heard, the government can be seen to confuse the advice given by the ABL and Sir James Munby. By attempting to “speed up” the adoption process, when adoption may not always be the best solution for a child, adoption placements may begin to soar again. Although prima facie the increase in adoption rates seems a positive thing, it is important to remember the alternatives to adoption which may better suit a vulnerable child.

The guidance issued by the ALB and Sir Munby gives a clear insight to the way in which adoption agencies should be acting; rather than seeing adoption as the be all and end all of care procedures, it should be viewed as a last resort to avoid severing all ties with a child’s birth family when this may be the wrong decision. Adoption, as it always has been, should be decided case by case and should be based on what would be best for a vulnerable child. The advice given in the report and by Sir Munby’s judgments is at risk of corruption by the government’s previous guidance, which argues adoption procedures should be sped up. It is apparent that the government must attempt to rectify this to avoid further confusion amongst adoption agencies.

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Tagged: Family Law

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