Adoption: A Vision for Change – permanency and ‘the last resort’ 

Adrian Barnett-Thoung-Holland, pupil barrister at Fourteen, considers how the Department for Education’s proposed four year plan may affect permanency options for children in care.

Adrian Barnett-Thoung-Holland, pupil barrister at Fourteen

The government has recently announced its proposed four-year plan in adoption law, focusing particularly on addressing the lengthy delays which children endure while awaiting placement with adoptive parents. By 2020, the Department for Education has pledged to achieve the following:

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 a £14 million investment fund.

b) Transfer support on offer for adoptive families by providing therapeutic services to all adopted young people up to the age 21 – as well as to those who care for them – backed by a new commitment totalling over £49 million.

c) Making 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) Introduce 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. 

In her initial announcement in January 2016, the State for Education Nicky Morgan explained that the proposed changes were to make "crystal clear that councils and courts must place children with the person best able to care for them right until their eighteenth birthday, rather than with carers who can't provide the support they need over the long term." The buzzword is and always will be "permanency".

The report focuses on three "building blocks". Topmost is the need to reform the law (dealt with below). The second and third relate to the shift towards regionalised adoption systems and developing the workforce. 

The immediate focus of this article is on how this report paints the interaction between alternative permanency options to adoption and the government's legislative proposals. 

Permanency options
To many, the government's "pursuit" of adoption as the preferred vehicle for "permanence" over, for example, special guardianship orders is contrary to the opinion of the courts, which have long maintained that adoption be the "last resort" for a child in care. This is not necessarily communicated in the report. Each mention of the promotion of adoption is tempered by the caveat that all decisions must be considered when in the "best interests of the child": an approach that family lawyers are all too familiar with. There is no indication that this report (nor any subsequent legislative amendments that stem from it) proposes to elevate adoption to any kind of default position for all children in care proceedings over special guardianship orders or kinship care.

What the government has been considering is how many viable permanency options exist and the respective viability of such options. The Department for Education has voiced concerns over special guardianship orders as the alternative. Note that there is no suggestion that there is an inherent problem with such orders, but the report voices its reservations about how these orders are being used at present (while in the same breath admitting that purported abuse of special guardianship orders remains in the minority).

Prospective legislative change 
The government has forwarded two foundations for the provision of amendments to the Children Act 1989. It promises to "change the legal framework under which permanence decisions are made". These factors which are to be "properly prioritised" when local authorities and courts are considering the various permanency options are:

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. 

It is certainly too early to tell what the impact of any such amendments might be. At present, considerations when making placement orders typically fall under s.1(4) of the Adoption and Children Act 2002. Note however that the language used by the government relates to the decision making process for "permanence" decisions. As is clear from the report, "permanence" decisions are not restricted to adoption alone. 

How would the government seek to make these amendments? An additional insertion into s.1(2) of the Children Act 1989 would be unhelpful, since it would elevate permanent placement options to a standard of specific consideration which the welfare checklist does not appear to contemplate. The idea could be doubtless that this is a specific consideration once a permanency placement is already in consideration. The difficulty is that this does not address the point where permanency decisions would need to come into play; should they always be considered first or are they still a "last resort"?

The second element is clearer insofar as s.1(2) Adoption and Children Act 2002 already stipulates "the child's welfare throughout his life". As such, it makes sense that long term placements must be evaluated for their longevity. Placement breakdown can be especially detrimental to the child's welfare (and possibly as harmful as delay itself). We remain in the dark as to how the government intends to approach these amendments, at least for now.

Local authority misconceptions
The report voices concern that local authorities had raised about the viability of adoption decisions. They are:

a) a mistaken view that the legal test for adoption has changed and the bar that must be met for an adoption placement order to be made has risen;

b) a misunderstanding resulting in the view that if any extended family placement can provide "good enough" parenting at the current time, this should be pursued over adoption, even if professionals have concerns about the ability of the carer to look after the child, or feel the placement is unlikely to be sustainable over the whole childhood and into adulthood; and

c) a drive to eliminate delay in the family courts and conclude care cases within 26 weeks, which is leading some local authorities to believe that adoption is difficult to pursue within the timescales. 

The second point is worth highlighting; it implies that local authorities were intentionally choosing not to place children for adoption if a (purportedly deficient) special guardianship order could be made instead. As the report puts it, "local authorities have reported to us that they feel unable to pursue adoption in some cases even where they believe it to be in children's best interests, because of the way Re B-S [2013] EWCA Civ 1146 is being interpreted locally. The dramatic and sudden shifts we have seen in patterns of decision making do not suggest a normal, incremental change but an extreme reaction."

The government's solution is to ensure that better trained social workers will resolve these misconceptions but there could be a deeper problem here. The second factor could be read as resulting from the belief that adoption is a "last resort" and should not be prioritised when kinship care or even rehabilitation to the birth parents is available. Hence local authorities shying away from adoptions. It would be interesting to see how legislation addresses this point in particular. 

The government appears to have taken a firm view on this; special guardianship orders have risen while adoptions have fallen. At the same time, special guardianship orders (in the government's mind) are being abused as a means to avoid adoptions. 

Special guardianship orders
It had been suggested in the past that the increased focus on implementing adoption as the preferred engine of "permanency" is the result of increasing suspicion about the efficacy of special guardianship orders as a workable alternative for long term stability for children in care. Throughout the report, there is a general acceptance that adoption sits alongside special guardianship orders or kinship care as part of a complete menu of permanency options which should be considered. 

The report notes issues which have arisen in the special guardianship order decision making process, notably:

a) rushed or poor quality assessments of prospective special guardians;

b) potentially risky placements being made, for example, where the SGO is awarded with a supervision order because there remains some doubt about the special guardian's ability to care for the child long term; and

c) inadequate support for special guardians, both before placements are finalised and when needs emerge during the placement.

The policy intent behind special guardianship orders was identified in 2005 when the government elected to amend the Children Act 1989. Their purpose was to allow children to remain resident with members of their extended biological families by allowing prospective carers to apply for special guardianship orders and the children to be placed in their care. 

Special guardianship orders were discussed in detail in the Department for Education's research report "Beyond the Adoption Order: challenges, interventions and adoption disruption" from April 2014, headed by the University of Bristol School for Policy Studies. The substance of that report was that special guardianship orders happened to break down at a far faster rate than adoptions did (though not necessarily with greater frequency). The government chose to address this issue in February of this year by amending the existing provisions so that more stringent tests were laid out for those applying for special guardianship orders. Local authority reports now must consider:

a) the capacity of the guardian to care for the child now and until the child is 18;

b) the prospective special guardian's understanding of the child's current needs and likely future needs, particularly in light of any abuse or neglect the child has previously suffered, and their ability to meet those needs;

c) the prospective special guardian's understanding of any current or future risk posed by the child's birth parents, particularly around contact and their ability to manage this risk; and

d) an assessment of the strength of the previous and current relationship between the child and the prospective guardian.

The government's intent behind this recent proposal appears to be motivated by the perceived insufficiency of special guardianship orders as a workable alternative, despite progress being made in updating and amending the law. In the report's own words, "the review of Special Guardianship generated compelling evidence that the assessment process for special guardians is not sufficiently robust." 

The government accepts that special guardianship orders are still to be employed as an alternative model of permanency. What is unclear is whether the government intends to push adoption into focus at the expense of alternative long term options such as special guardianship orders. The report says nothing about the scope of possible options available to natural parents either. it is tempting to conclude that, with such a large amount of funding being pushed into speeding up and supporting adoption, the government is silently trying to move adoption up the hierarchy ladder above special guardianship orders. No mention is made of the possibility of supporting reparative care, for example.

Until the proposed legislative provisions can be considered, the government has still not gone far enough to say where adoption or special guardianship orders lie among the existing permanency options. We can only infer from their funding pushes that they may, though not that they will.

Supporting adopters
The government has pledged to commit more and more resources into recognising the rights of prospective adopters. As pointed out by the report, the Adoption and Children Act 2002 requires that courts and adoption agencies must have regard to the relationship the child has with specific categories of people. The government has made it clear that "prospective adopters" are to be added to the list of categories to ensure that the child's relationship with them is taken into account.

This is the most explicit of the government's suggestions and in some ways the most uncontroversial. Children awaiting adoption orders are likely to have been placed with the prospective adopter for an appreciable period of time and the nature of the child's relationship with them remains a live factor.

Where do we go from here?
Does the government intend to construct a hierarchy of long term placement options? Does this report communicate that? The government maintains that all such options must be made available with the ultimate goal being the welfare of the child. The courts, in the meantime, maintain their own position that on any supposed hierarchy, adoption is a "last resort" and as such sits farther down on any such pecking order. The government's address of special guardianship orders and complete overhaul of the adoption system are clear indicators that their plans are to universally strengthen all placement options; a decision which does not defeat the judicial "hierarchy" but does not necessarily imply that universality of placement options ought to be the norm.

The goalposts have been set up, a line drawn but we will only be able to make a judgment on any proposed legislation when we have sight of it. The goal is clear, the journey uncertain. 

17/4/16

http://www.familylawweek.co.uk/site.aspx?i=ed160338