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Family Law

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Court of Protection Practice and Procedure Conference 2016

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St John's Chambers , 29 MAR 2016

Adoption: A vision for change?

Adoption: A vision for change?

On 27th March 2016 – Easter Sunday – the Department of Education released its policy paper setting out its vision for improving adoption rates. Broadly, it sets out progress regarding adoption since 2010, current challenges and how they will be met and the government’s vision for the adoption system by 2020.

There are five chapters:

  • Chapter 1 Progress to date
  • Chapter 2 New and enduring challenges
  • Chapter 3 Creating the foundations for sustainable success
  • Chapter 4 Excellent practice everywhere
  • Chapter 5 Sharpening accountability to ensure delivery

In order to ‘achieve our vision’ the government will:

  • Act to address unexpected falls in adoption decisions
  • Deliver radical, whole system redesign by regionalising adoption services
  • Invest in developing the workforce
  • Reduce the time children wait to be adopted
  • Provide more high quality adoption support
  • Further embed strong performance management and accountability arrangements

No one could sensibly argue against much of what is said in this policy paper. Every child does indeed deserve a loving, stable family and for those children who cannot live with their birth parents it is vital to find them permanent new homes as quickly as possible. Adoption is clearly an important option for those children who cannot live with their birth family, providing stability and care which can last long beyond childhood. It is good to hear that the Adoption Support Fund will be increased.

The government is on a collision course with the law

My fear is that this is simply another piece of the adoption agenda which has been promoted by this government for some time now. This is dangerous. Promotion of an agenda is often at the expense of facts. This has clear potential for putting the government on a collision course with the law. This will be a time consuming, expensive distraction and the children will have to watch and wait on the sidelines as it plays out.

Agenda versus facts

The fact that the proportion of children adopted within 12 months has ‘almost doubled’ is offered up as ‘remarkable progress that should be celebrated’.  The recent decline in adoption numbers means ‘there is an urgent need to accelerate our reform of the adoption system now’. Thus, from the very outset, the policy paper is built on the assumption that more adoption and quicker adoption is an unqualified good which needs to be urgently achieved.

The foreword states that only 3.2% of children return to care ever year after an adoption order is granted, compared to 25% of children on a ‘residence order’.  This is based on research by Selwyn  and Masson in 2014. Thus adoption offers the best chance for stability for children.

However, it is not clear to me from either the policy paper or the article which it cites whether the disruption rates refer to adopted children subject to a care order after adoption or who are accommodated under section 20 of the Children Act (ie by agreement with the adoptive parents). Both are ‘looked after’ children but only those subject to care orders will have gone back to court. Thus this simple comparison between disruption rates in adoption and ‘residence orders’ is not helpful without clearly stating what is meant by ‘returning to care’.

Campaigning groups such as the Parents of Adopted Traumatised Teens tell a different story about adoption stability – of adopted children disappearing back into the system under section 20, of inadequate or non-existent help and support, of social workers who do not understand issues of attachment and trauma.

It is clear that adoption can be transformative for many children. But it must be the right option for the right child at the right time. Good decisions need to be made about children as early as possible. The government’s vision is to ‘radically reform the children’s social care system’ and to structure reforms around three areas: people and leadership, practice and systems; governance and accountability. There is a need ‘to focus relentlessly on front line practice. We need all services to deliver high quality, evidence based decisions for children every time’.

All of this sounds great but misses the fundamental point. If your foundations are not sound, you can build as fancy a castle as you like; at the first strong wind it will fall. The message from front line social workers, time and time again is that they are overworked to the point of physical and mental breakdown. Case loads are simply too high to permit proper evaluation, analysis and reflection.  This won’t change just because the government ministers are looking at it, however intently. Things change when you identify what is going wrong and take active steps to deal with it.

What steps are proposed here to deal with the fact that it is impossible for a social worker who is asked to juggle an unmanageable case load, to deliver ‘high quality evidence based decisions for children every time’?

The government proposes:

  • to launch a new development programme to support social workers to achieve and demonstrate required knowledge and skills and have their specialist knowledge recognised;
  • publish a new Specialist Knowledge and Skills statement setting out exactly what social workers making permanence decisions need to know and be able to do.
This is a level of magical thinking that is simply embarrassing in a government document. You can set out as many statements as you like telling people what they should be doing, but if those on the ground who are supposed to be ‘doing’  are prevented from ‘doing’ by a harmful working environment then decisions about children will continue to be made in the absence of proper analysis.

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The law versus the government

The government just doesn’t seem to understand the law and how it operates. That is clear to me when I look in more detail at these proposals for a programme to ‘sharpen up’ social workers, at para 3.34. The ‘robust programme’ they want to develop to support social workers to ‘develop or sharpen skills’ includes:

building skills to ensure that court material is well prepared and clearly argued and developing social workers’ skills in presenting and defending cases in court effectively.

It’s TOO LATE to do anything about the evidence once it gets to court. This is not simply shutting the stable door after the horse has bolted, but after it hass been sent to the knackers yard and turned into glue.

The Ministers seem to think that the local authority’s case unravels in court because it is challenged in court. However, a poorly prepared case has already collapsed by the time it gets to court; the court process simply shines a light on its demise. No matter how fancy the statement of skills expected of a social worker, silk purses are not generally made from sow’s ears.

However, the government just doesn’t seem to ‘get it’. The general view in this policy paper is that the judiciary share responsibility for the down turn in adoption orders after 2013 following the judgment of the President in Re B-S.  That is despite the very clear subsequent reiterations that Re B-S did not change the law. And indeed it did not. The trenchant criticisms of the President were not directed at the law, but the failure of social workers and lawyers to apply it properly and consistently.

The law around adoption has always been clear. Adoption represents the most serious interference the State can impose on family life; it removes the legal status of the birth family and makes the child a member of another.

Thus, a child can only lawfully be adopted when there is no other realistic option. This is the essence of ‘proportionality’ under Article 8 of the ECHR. Not only is adoption the ‘last resort’ but the State has a positive duty before considering adoption to keep the family together, by offering help and support where possible.  The European Court has issued a number of judgments making it very clear what is required by the positive obligations pursuant to Article 8 – see Soares de Melo and SH v Italy.

For further consideration of the necessary legal principles, see the post ‘When  can the court agree adoption is necessary’? [This post also deals with the implications for decisions about adoption of the 26 week timetable in care proceedings – see edit below.]

What was going wrong was not that the law was unclear – but that the analysis of children’s circumstances and applying the law was often poor. I have discussed this problem at length in this post – Achieving  best evidence and use in Children Act cases. The fundamental point I make is that proper analysis and assessment takes not merely knowledge, expertise and experience but time.

The policy paper may well be right, I haven’t studied all the relevant research in sufficient detail to confidently assert one way or another. Maybe adoption is always the best option for most children and we should be making sure we have as many of them as possible as quickly as possible.

But there are few hurdles to jump in the meantime. Simply saying ‘full steam ahead’ for non-consensual adoption, is not going to find favour with either domestic or European law. We cannot simply ignore the demands of Article 8 of the ECHR.  There are obvious and immediate tensions between the cry of ‘more adoptions more quickly’ and the positive obligation upon the State to support families to stay together.

How does the government seek to reconcile these tensions? We don’t know because they don’t say. A policy paper that simply discusses its vision for adoption in isolation of what the law demands, is a useless distraction.

If the Government fights the law, the law will win – eventually. The government’s only legitimacy is that afforded to it by law. It will not be able to resile from Article 8 without enormous effort. But the battle will be long and expensive. And again the children are the ones who will suffer.

EDIT – but this is all about children on placement orders – so what’s the problem?

There is a view expressed that the ‘push’ for adoption will not corrupt or obscure the decisions made about children at an early stage because the government is focusing on children already subject to placement orders. Therefore the proper decisions have already been made about their future with their birth families.

I used to agree with this. I don’t anymore. Particularly not now that care proceedings are limited by statute to 26 weeks. I think there is at least a very real risk that this ideological push for adoption is going to impact on decision making in care proceedings. Cases are going to be ‘rushed through’ with a particular end in mind.

This is a potential breach of Article 8. Fair enough, if that is what you want to achieve, if this is what you think is proportionate. But don’t pretend you are doing something else. Be honest about what you think is important – and be prepared to take the consequences.

For  example, see this discussion on Twitter from 2014.

I have historically argued quite hard against the existence of deliberate and malicious ‘conspiracies’ to remove the children from the working classes and hand them over to the middle classes. Government – you are not helping me.

The policy paper Adoption: A Vision of Change is available to view and download here.

These and other issues will be discussed at the second Child Protection Conference supported by The Transparency Project on 3 June 2016. More details are available here.

This article was originally published on the Child Protection Resource website and has been reproduced here with kind permission.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.
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