Government details law changes to address fall in adoption decisions

March 30, 2016

The Government has set out how it plans to change the law to address falls in local authority adoption decisions and the courts' granting of placement orders.

In a four-year strategy document, Adoption: a vision for change, the Department for Education highlighted how since quarter 2 of 2013/14, local authority decisions to pursue adoption were down by a total of 41%, and the number of placement orders granted by the courts was down by 50%.

According to the DfE, a strong picture had emerged of the new challenges in making adoption decisions. These appeared to be:

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

These changes were believed to stem from the way that the Re B and Re B-S court judgments had been interpreted across the system, the DfE said.

“The central message from those judgements is that adoption decisions must be based on strong evidence. This is absolutely true, and the correct legal test,” the Department stressed.

“The President of the Family Division, Sir James Munby, has made it very clear that the judgments do not change the law. In a subsequent judgment, Re R, 25 he stated: ‘I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders.’

The Department claimed that, “despite this unequivocal clarification”, some local authorities and courts were still making dramatically fewer adoption decisions than was the case before Re B-S. “This means that some children whose best interests would be served by adoption are now missing out.”

The strategy paper said that in order to ensure that the right factors – those that research had shown have the most significant impact on children’s outcomes – were properly prioritised, the Government intended to change the legal framework under which permanence decisions were made.

“We intend to amend the Children Act 1989 to ensure the following factors are properly prioritised when local authorities and courts are considering the best permanent option for the child at the end of care proceedings:

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 the light of the previous abuse and neglect the child may have suffered, and their need for high quality care to overcome this; and
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.”

Legislation would be brought forward to make these changes “as soon as possible”, the DfE said.

The Department also said it would look at amending the Adoption and Children Act 2002, which requires courts and adoption agencies, when making decisions relating to the adoption of a child, to have regard to the relationship the child has with specific categories of people. This includes consideration of the ability and willingness of any such person to care for the child.

“The categories of people currently consist of relatives and ‘any such person the court considers relevant’. We will amend legislation to explicitly add prospective adopters in this list, to ensure that the child’s relationship with them is also considered in all cases where the child has been placed with them,” the DfE said.

The strategy document also highlighted recently revised regulations in relation to special guardianship.

The Department for Education said: “We are taking action now to ensure that adoption is always pursued when it is in a child’s best interests. To achieve this we will change the law to ensure that quality of care and stability of placement are properly prioritised.”

The Department said the law change – to be made “at the earliest possible opportunity” – would make it “crystal clear” that councils and courts must always pursue adoption when it’s in a child’s best interest, “rather than with a series of short-term carers who can’t provide the support they need over the long term”.

The DfE said the strategy was intended to “transform the life chances of those children who spend up to 18 months in care waiting to be adopted - a tenth of their precious childhood”.

The strategy also covers:

Regionalisation of adoption services: all local authorities will become part of a regional adoption agency (RAA) by 2020; three new funding streams will be launched to support local authorities and voluntary adoption agencies “in this ambitious work;
Workforce development: a new development programme will be launched to support social workers to achieve and demonstrate required knowledge and skills and have their specialist knowledge recognised; a new Specialist Knowledge and Skills statement will be published setting out exactly what social workers making permanence decisions need to know and be able to do.
Reduction in the time children wait to be adopted: there will be investment in the continued development of national matching infrastructure and innovative matching methods; best practice will be developed and spread to increase the use of early placement; and the DfE will ensure that inter-agency placements are pursued swiftly and operate on a level playing field for agencies and adopters.
Provision of more high quality adoption support: the Adoption Support Fund will be extended, with increased funding in every year to 2020; the evidence base for, quality and access to mental health services for vulnerable children will be improved; there will be further support and challenge to schools to meet the needs of adoption (including using legislation to expand the role of virtual schools heads and consider how designated teachers can support adopted children, and ensuring teachers understand the impact of the range of developmental issues, including trauma and loss on children’s learning).
Performance management and accountability arrangements: scorecards for RAA performance, using better and more meaningful data from quarterly local council returns, will be introduced; the Government will work with the sector and Ofsted to produce a revised inspection framework which “supports strong innovation and evidenced based practice, and works in a world where adoption services are regionalised”; the way the national Adoption Leadership Board (ALB) works will be reviewed to “make sure it continues to deliver strong visible leadership with a spirit of co-operation between voluntary and public sector providers at its heart”; and the voice of adopters will be enhanced so that services give adopters the power of choice and that the views of adopters shape decisions about the future design of adoption services.

The Government has also said it will provide £14m investment for innovative local schemes, such as Coram Cambridgeshire, which puts babies under two with foster parents who are also willing to adopt them.

Andrew Christie, recently named Commissioner for Social Care in Birmingham, has meanwhile been appointed as the new Chair of the Adoption Leadership Board, which will be tasked with driving forward improvements in the adoption system.

Education Secretary Nicky Morgan said: “[This] strategy is a watershed moment - a new line in the sand. For the first time ever, we are explicitly setting out how we will transform the lives of our most vulnerable children by making sure they get the opportunities they deserve.

“We cannot stand by while children spend months in care waiting for their new family, when loving parents are available. We cannot preside over a situation where adopted children are less likely to do well at school than their classmates. And we mustn’t fail to take action against stifling red tape that stops councils from matching children with the families that are right for them.

“This radical new vision will make sure decisions rightly prioritise children’s long-term stability and happiness, so that children are placed with their new family as quickly as possible - helping them fulfil their potential and get the very best start in life.”