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Adoption and The Children and Social Work Bill

Adrian Barnett-Thoung-Holland, pupil barrister at FOURTEEN, considers the extent to which the proposed legislation promotes adoption as the preferred model of permanency for children subject to care proceedings.

Speaking in May of this year, David Cameron, then Prime Minister, described himself as "unashamedly pro-adoption". He also expressed the view that he would be promoting adoption as the preferred model of permanency for children subject to care proceedings.

David Cameron described his position as "zero tolerance on state failure", citing the worrying trends of children in care falling into crime, the sex trade or homelessness. Local authorities would also be made to help care leavers find housing, jobs and healthcare, and each person would be assigned a mentor until the age of 25. All these provisions were laid out under the then Government's new "Care Leavers Strategy" which identifies three principal goals:

a) To ensure that all young people leaving care should be better prepared and supported to live independently,

b) To improve access for care leavers to education, employment and training, and

c) To ensure that care leavers experience stability in their lives and feel safe and secure.

The expectation was that the Children and Social Work Bill would largely reflect the then Prime Minister's comments. On initial inspection, it contains provisions for continued support for children leaving care in ss.1 – 7. In my previous article I discussed the implications of the Government's decision to promote adoption via institutional and legal mechanisms. The peculiarity is that since the Children and Social Work Bill emerged, the proclamations of adoption centric permanency plans do not appear to have come to fruition. The subsequent change of personnel within the Government notwithstanding, there are some questions which should have been raised in relation to the Bill as it continues to move through the legislative process.

At time of writing, the Children and Social Work Bill is due to reach report stage in October 2016. Few substantive amendments have been proposed to the Bill thus far.

This article takes the opportunity to examine some of the more pertinent elements of the Children and Social Work Bill which will continue its parliamentary progress following the summer recess, with particular emphasis on the proposed adoption provisions and the s.15 exemption. For reference, the text of the Bill as it currently stands can be found here.

The Government's Policies
As I raised in my previous article, there was hitherto no express indication from the then Secretary of State for Education, Nicky Morgan MP, that adoption was to be pursued as the primary mode of permanency for children in care. Scratch a little beneath the surface, and all we could draw on was the tacit implication that the Government considers that special guardianship orders have failed as an acceptable alternative despite attempts to reform them.

Much of the Department for Education's initial reforms were structural and institutional as opposed to obviously legal, though we were promised new legislation designed to address a number of factors. In particular, Adoption: A vision for change explicitly stated that the following would be included in future legislation as factors which would be "properly prioritised" when local authorities and courts were considering the various permanency options:

"a) whether the quality of care on offer under the different potential placements being considered will be sufficient to meet the child's needs, especially in light of the previous abuse and neglect the child may have suffered and their need for high quality care to overcome this; and

b) whether the placement will offer this quality of care throughout the child's childhood (until they are 18) rather than right now or just in the immediate future."

Both have been included in the proposed Bill as promised (see below). In that sense, the Bill does deliver on what was proposed in Nicky Morgan's paper. The Prime Minister did not appear to reflect on either of these factors in his speech last month.

The Children and Social Work Bill on Adoption
As a general summary, it would be fair to describe the Bill as "lightweight". In reality, only two provisions – clauses 8 and 9 – actually make reference to adoption.

Clause 8
Clause 8 is largely what Nicky Morgan promised in March: an amendment to the Children Act 1989 which sets out the long term permanency provisions which the court needs to consider:

"In section 31 of the Children Act 1989 (care and supervision order) for subsection (3B) there will be substituted – 

'(3B) For the purposes of subsection (3A), the permanence provisions of a s.31A plan are – 

(a) such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following:

(i) the child to live with any parent of the child's or with any other member of, or any  friend of the child's family;
(ii) adoption;
(iii) long term care not within sub-paragraph (i) or (ii);

(b) such of the plan's provisions as set out any of the following:

(i) the impact on the child concerned of any harm that he or she suffered or was likely to suffer;
(ii) the current and future needs of the child (including needs arising out of that impact);
(iii) the way in which the long-term plan for the upbringing of the child would meet those current and future needs."

It is worth comparing this new amendment to the removed s.31(3B):

"(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following –

(a) the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;
(b) adoption;
(c) long-term care not within paragraph (a) or (b)."

In some ways, the new s.31(3B) is simply a rewording; 3B(a)- (c) (old) are preserved within 3B(a)(i) – (iii) (new). The new s.31(3B)(b) provision is simply lifted from what used to be within s.31(3B) itself but with three very specific new caveats which had been alluded to previously in Nicky Morgan's report.

There are two comments to make on this. Firstly, both of the proposed provisions from the Department for Education report have been included in some form as promised. Secondly, the way these have been expressed is to divide the original idea of "whether the placement will offer this quality of care throughout the child's childhood (until they are 18) rather than right now or just in the immediate future" into two parts. The child's current and future needs and any needs arising out of the "impact" referred to in s.31(3B)(b)(i) is analysed as is the way in which the long term plan meets those needs.

Semantics aside, the provision fleshes out the old s.31(3B) by inserting the express consideration of the factors included in s.31(3B) (new). It must be emphasised again that while it is helpful for this to be enshrined in the statute, it does not necessarily say anything new about the range of permanency options. It is very hard to see how hitherto courts would have ever made decisions on permanency without considering these three factors.
Nothing has been particularly changed through these amendments. The exact factors that Nicky Morgan was addressing are now practically enshrined word for word in the statute but are these novel provisions for the court? The former Prime Minister's advocacy does not match up; nothing contained therein suggests that adoption should be or is the predominant vehicle of permanency. So while David Cameron said that he was "unashamedly pro-adoption", the statute is neither unashamed nor ashamed and is certainly not pro-adoption in any specific sense.

Clause 9
This clause binds courts to consider the child's relationship with the prospective adopter within the welfare checklist when deciding whether to make an adoption order or a leave to oppose application. In many ways, there is not anything of particular note in that provision alone and it makes little or no impact on the decisions that the courts were already making.

The clause provides:

"(1) Section 1 of the Adoption and Children Act 2002 (matters to which court is to have regard in coming to a decision relating to the adoption of a child) is amended as follows.

(2) After subsection (7), insert – 

(7A) For the purposes of this section as it applies in relation to a decision by a court, or by an adoption agency in England – 

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

(b) references to a relative, in relation to a child include – 

(i) the child's mother and father, and
(ii) any person who is a prospective adopter with whom the child is placed.

 (7B) In this section, "adoption agency in England" means an adoption agency that is – 

(a) a local authority in England, or

(b) a registered adoption society whose principal office is in England.

(3) In subsection (8) (meaning of 'relative' etc), in the words before paragraph (a) after 'section' insert 'as it applies in relation to a decision by an adoption agency in Wales.'"

The increased recognition of potential adopters was raised in the Department for Education's report, hence its inclusion. Once again, this amendment should be considered as uncontentious. Clause 9, much like clause 8, is an exercise in reassertion and confirmation; there was no suggestion previously that the courts would openly disregard the relationship between the child and the potential adopters in any case. It assists, as it always does, for these specific considerations to be enshrined in the statute but the extent to which this fundamentally changes the law in the way the former Prime Minister suggested he wanted is questionable.

De Facto Priority
As far as that analysis can establish, there does not appear to be any de jure indication that adoption is unequivocally the first port of call above all other permanency options. Nor, it should be emphasised, was that the view of the DfE paper; I discussed in my previous article the inferences that could be drawn but, ultimately, there were no unequivocal statements that adoption ought to be the primary vehicle for permanency.

However, there is another possible conclusion which can be drawn when one reads the DfE paper alongside the comments of the Prime Minister: are the mechanisms of support currently in place calculated to provide subsidiary incentives for adoption as the preferred mode for permanency? In that sense, rather than enshrine the priority of adoption into statute, it is a better exercise to consider that adoption's priority arrives via the "backdoor".

The increased focus on adoption support services indicated in Nicky Morgan's paper would certainly indicate that. To remind ourselves, the paper was focused very specifically on the following proposals:

a) End the delay for vulnerable children in care by providing larger pools of approved adopters by making sure that every council is part of a Regional Adoption Agency ('RAA') by 2020, backed by £14 million.

b) Transfer support on offer for adoptive families by becoming the first country in the world to provide vital therapeutic services to all adopted young people up to the age 21 – as well as the selfless family and friend who care for them – backed by a new commitment totalling over £49 million.

c) Make sure social workers have the skills to make the right decisions for adoptive families by clearly setting out how social workers must prioritise adoption where it is in the best interests of the child.

d) Shine a light on poor performance and hold councils and adoption agencies to account by introducing scorecards which will be used to hold regional agencies to account for long delays between a child entering care and moving in with their new family.

e) Encourage local innovation in the way children and adopters are matched by investing £14 million in a new practice and innovation fund, supporting councils and regional adoption agencies to develop new ways of working.

One of the concerns that has been raised is that David Cameron's outspoken support for adoption is expressed not explicitly in the Bill but rather in the proposals for supporting adopters. No grandiose statements were made about the level of support available for either kinship care or special guardianship orders.

That said, such a conclusion is obviated by the explicit content of clauses 1 – 6 of the Bill which emphasise the importance of support for "children in care" and "young adults". There does not appear to be any distinction between adoption and any other permanency options here.

The disparity lies between what the former Prime Minister was in fact telling us and what the legislation appears to do. It would be perhaps too far to say that nothing has happened at all, but it is hard to see the linkage between where the former Prime Minister placed his (personal?) policies and the policies indicated to be served by the legislation.

Part 2 of the Bill is almost entirely consumed with new mechanisms of regulation for social workers. I will not discuss these in any particular detail here but as an aside, I would like to draw attention to clause 29 which has already been subject to a great deal of criticism.

Clause 29: Powers to test different ways of working

"(1) The purpose of this section is to enable a local authority in England to test different ways of working with a view to achieving better outcomes under children's social care legislation or achieving the same outcomes more efficiently.

(2) The Secretary of State may by regulations, for that purpose –

(a) exempt a local authority in England from a requirement imposed by children's social care legislation;

(b) modify the way in which a requirement imposed by children's social care legislation applies in relation to a local authority in England. 

(3) The Secretary of State may make regulations under this section relating to a local authority in England only if asked to do so by that authority.

(4) Regulations under this section may be made in relation to one or more local authorities in England.

(5) Regulations under this section may include consequential modifications of children's social care legislation.

(6) Regulations under this section are subject to the negative resolution procedure if they only – 

(a) relate to requirements imposed by subordinate legislation, or

(b) revoke earlier regulations under this section.

(7) Any other regulations under this section are subject to the affirmative resolution procedure.

(8) Subsection (3) does not apply to regulations under this section that only revoke earlier regulations under this section.

(9) If regulations under this section are subject to the affirmative resolution procedure and would, but for this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, they are to proceed in that House as if they were not a hybrid instrument."

Clause 30: Duration

"(1) Regulations under s.29 must specify a period at the end of which they lapse.

(2) The period must not be longer than 3 years beginning with the day on which the regulations come into force.

(3) But the Secretary of State may by further regulations under s.29 amend the specified period to extent it by up to 3 years.

(4) The specified period may be extended on one occasion only.

(5) Before extending the specified period the Secretary of State must lay a report before Parliament about the extent to which the regulations have achieved the purpose mentioned in s.29(1).

(6) The Secretary of State may by regulations make transitional provision in connections with the lapsing of regulations under section 29."

Clause 31: Consultation

"(1) Before asking the Secretary of State to make regulations under section 29 a local authority in England must consult such of its Local Safeguarding Children Board partners as it considers appropriate.

(2) Before making regulations under section 29 the Secretary of State must consult – 

(a) the Children's Commissioner,

(b) Her Majesty's Chief Inspector of Education, Children's Services and Skills, and

(c) any other person that the Secretary of State considers appropriate.

(3) But no consultation is required where the regulations under section 15 only revoke earlier regulations under that section.

(4) The Secretary of Stat may by regulations amend this section for the purposes of adding those who must be consulted by a local authority in England or the Secretary of State.

(5) Regulations under subsection (4) are subject to the negative resolution procedure."

Under cl 33, the powers permit the government to grant freedom from any and all of the following:

a) any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970, so far as relating to those under the age of 18.

b) s.23C – 24D Children Act 1989 which cover how local authorities work with care leavers.

c) The Children Act 2003, which includes how children's services in England are government and inspected.

d) Any subordinate legislation that arise from those statutes.

As expressed in cl 29(1), the purpose of this provision is to provide a means to "test different ways of working with a view to achieving better outcomes…or achieving the same outcomes more efficiently".

The first problem is the use of the word "test". This is a very difficult word to ignore in this provision. It reads as an admission that finding means to achieve better outcomes in social care legislation is not something that Parliament feels confident it can decide on. Instead, it invites local authorities to find new alternative means to "outdo" legislation to find a "better" way to promote reform than the Government can.

That smacks of a lack of confidence from the legislature in its own ability to legislate on children in care. A "test" as a methodology does not have any implication of success or failure appended to its meaning; in fact, success or failure of any given hypothesis hinges on the outcomes of a "test" or experiment. The term could cover a well thought out provision or a fanciful experiment which ultimately achieves nothing.

Relating that to the ancillary provisions, it appears that the provision can allow a local authority to opt out of any related legislation on their duties towards children to essentially experiment with an alternative in the interests of better serving the children's interests or efficacy. The issue of the word "tests" strike again; because there is nothing that depends on the efficacy of the "tests" themselves being undergone, local authorities could simply deploy cl 29 as a means to exempt themselves from existing commitments to not "test" and then claim that extensions to the three-year period are required because their "tests" have not yet come to fruition.

What is equally concerning is that the statute is silent on the tools to regulate the experiments. Even then, supposing that there were regulations in place that related to the conduct of "tests" for efficacy or implementation of childcare policies inside a local authority; there is nothing stopping the local authority in question from employing the cl 29 provision to subsequently exempt themselves from the regulations relating to tests in addition to the original regulations. The ambiguity and uncertainty of the term creates constant problems.

Equally missing is the threshold which the local authority is expected to meet under cl 29. Broadly, it is certainly commendable to promote a plurality of options that benefit children but how does one filter the practical from the purely fanciful? Clause 31 applies additional checks and balances on the procedure, but it is the spirit of this legislative provision that is brought into scrutiny. The decision to request the making of regulations lies solely with the local authority, the decision to make the regulations with the Secretary of State. Worse still, there is a hidden power in cl 29(5) that these regulations can be employed (remember: at the request of a local authority) to include consequential modifications of children's social care legislation as defined in cl 33. In short, the power for a local authority to effectively request that the Secretary of State modify children's social care legislation outside of ordinary legal procedures is already in place.

Note that cl 30(5), while appearing to be a tool to measure the efficacy of the measures employed by the local authority actually measures only the efficacy of the regulations made. This creates a lacuna where the Secretary of State makes no final decision on the efficacy of the test proposed. He examines only the statutory instrument allowing the local authority to conduct tests.

There are limitations and concerns that ought to be raised here from the outset; why would a local authority seek to follow out this sort of provision? Exercising cl 29 provides local authorities with the dangerous powers to request exemptions to "test" different ways of "achieving better outcomes." The motivations of the local authority are not necessarily challenged nor are the efficacy of their "tests" brought to scrutiny under this disturbing provision.

Under cl 30(2), the exemption cannot last beyond 3 years and can be extended by 3 years by subsequent regulations but no further. An odd dichotomy emerges in that local authorities are restricted to programmes that are foreseeably 3-6 years in lifespan and yet are not accountable necessarily to the purported success (or failure) of their ventures. When does a "test" end and become a "policy" or "practice"? The worst case scenario envisioned is that local authorities could opt out of all of their commitments. The best case scenario is that the local authorities could opt out of their commitments and then produce a system which is better and more efficient than any developed by the Government. The ultimate difficulty is that this provision's function and ease of application is unclear and opaque. If it is allowed to remain in this form, there will be continued challenges to its implementation.

Local authorities would only be able to keep their policy intact for six years, unless of course a legislative change is effected under cl 29(5). This creates a decentralisation problem; would the legislature eventually add a list of amendments referring to specific local authorities? Or would they implement the procedure wholesale to all local authorities if they deemed fit? The mischief appears to be that there could be countless statutory instruments cluttering the legislature which individually exempt numerous different local authorities at any one time.

Where do we go from here?
The former Prime Minister's comments remain unclear; the Children and Social Work Bill makes no reference to any formal consideration to the preference of adoption as the primary permanence option for children in care as he had originally suggested. The only notable comments that can really be made of the statute are the dangers present in cl 29. With the inception of a new Prime Minister, new Secretary of State for Education and a potential new direction of policy, only time will tell if they plan to maintain the force of these proposed changes and what the scope of these policies may be in the future.