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Choices for Children in Fostering and Adoption

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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION

DISCUSSION TOPICS
General Issues
Chapter 1. Legal Options for Children providing Permanence and Stability

This Chapter examines the types of legal orders that are and could be available for children and young people. The crucial issues of when, how and within what timescales local authorities make plans for children and young people are dealt with in Chapter 18.

When a child is 'looked after' by a local authority away from the family home, there are at present 4 main legal options for permanence. The child can:

  • return home; or
  • be made the subject of a residence order under s.11 of the 1995 Act, naming the individual carers and giving them parental responsibilities and rights; or
  • be made the subject of a parental responsibilities order (PRO) under s.86 of the 1995 Act, giving the local authority parental responsibilities and rights; or
  • be adopted, with or without a freeing order first.

Most 'looked after' children either are never placed away from home, or if they are, it is for a short period only. However, for the children who are unable to return home, local authorities must consider plans for permanent arrangements. They start the planning process at a 'looked after' review, when there is a recommendation for permanence, with or without a particular option in mind.

It is generally accepted that a continuing supervision requirement for a child under s.70 of the 1995 Act, through the Children's Hearing system, is not normally a good way to secure the care of a child who lives away from home and cannot return there. There may be exceptions to this, particularly with an older child, but the hearing system was not designed to deal with the long-term care of children. Rather, it was designed to make short to medium-term arrangements. Supervision requirements (unlike care orders in England and Wales under the Children Act 1989) do not give shared parental responsibilities and rights to the local authority. So children who are subject to supervision requirements for a long time may be prejudiced if their parents do not or cannot exercise responsibilities and rights, because no one else is able to do so. Also, the review structure, designed to keep cases from being 'lost' in the context of short and medium term planning, can lead to inconsistency of decision-making in long-term situations. ( See Chapter 4, Role of the Hearing System in Permanence.)

Similarly, if a child is 'looked after' away from home under s.25 of the 1995 Act, this is not usually a satisfactory long-term arrangement. Again, local authorities do not have any parental responsibilities and rights and there can be difficulties about making day-to-day decisions if parents cannot or do not stay involved.

It is crucial that a range of options is provided for achieving good permanent legal arrangements for a child away from home, when going home is not in the child's best interests. The U.N.C.R.C. expects that every child should have someone who has legal responsibility for him or her, that is parental responsibilities and rights. If a child is not able to live at home with his or her parents, it is important that a long-term carer has some form of responsibilities and rights:

  • to protect the child;
  • to make decisions where appropriate for the child; and
  • to secure the carer against inappropriate outside interference.

As indicated, the current legal options for long-term care away from home are the residence order, the PRO or adoption. However, these options do not suit all children, and may not achieve long-term support for children, where that is needed. Particular problems are:

  • Residence Orders. A child for whom a residence order has been made is not, as such, 'looked after'. This may be satisfactory for the child and carers if they do not want local authority involvement; or it may not be satisfactory for them if they want support. If a child is 'looked after' under s.25 of the 1995 Act, that ceases when the residence order is granted. If a child is 'looked after' on a supervision requirement under s.70 of the 1995 Act, there is normally a hearing after the residence order is granted, to terminate the supervision requirement and the child will then cease to be 'looked after'. Local authorities may pay a 'residence' allowance under s.50 of the Children

Act 1975, as amended by s.71 of the 2001 Act, up to 18. These are discretionary and some authorities pay them and some do not. Many families want the continued support and involvement of the local authority, either at the time the residence order is made, and/or when difficulties relating to health, disability or attachment arise. There are many anecdotal examples of this occurring for children in their teens, but there is no automatic entitlement to local authority assistance, and no entitlement to 'after care' services under s.29 of the 1995 Act.

  • PROs. Where a child is subject to a PRO, the local authority have all parental responsibilities and rights except the right to agree or not to adoption. The birth parents are left only with the rights to consent or not to adoption and to go back to court to seek to vary or discharge the order. The child is 'looked after', and there is a general expectation that there will be contact, but no parental right to it. If s/he remains subject to the order after her or his school leaving date, there is an automatic entitlement to 'after care' services under s.29 of the 1995 Act when the PRO is terminated. However, PROs are seen by many as a draconian option, because they take away almost all responsibilities and rights from the birth parents. Although they can be surprisingly flexible (the child can live at home, s.87(2); contact is possible; and conditions can be attached to them, s.86(5)), they are often seen as only one step short of adoption. And there are concerns about having a corporate body as a long-term parent.
  • Adoption with or without freeing. This is seen generally as the option of choice for young children needing a permanent placement, but it is a complete legal break and often a complete social break as well. Considerable secrecy continues to surround many adoptions, or at least that is the perception of birth families and others involved. Some social workers and legal practitioners are unhappy at the complete finality of adoption, and do not see it as appropriate in many cases. Adoption is not always seen as a realistic option for older children. This is in spite of the fact that many children clearly want to be confirmed in their identity with a new family, although not necessarily by adoption. And there are views that adoption is no longer needed and should be abolished altogether. On the other hand, there are children who need the protection that a complete legal break offers; and children who are given up for adoption at birth by parents.

Nothing in adoption legislation specifically says that all adoption matters must be carried out in total secrecy. However, there is a long-standing tradition of treating adoption in a secret and closed manner in every case. This attitude, assisted by the complete legal break that adoption provides, probably stems from the past circumstances of many adoptions. Birth families and adopters often wished to conceal the circumstances of adoption, for personal rather than protection purposes. For example, a birth mother might want to ensure that no-one knew she had had a baby; or a birth family might want to ensure that an adopted child did not know she was adopted and her 'sister' was really her mother; or a couple might want to ensure that no-one knew their child was adopted from a previous relationship of one of them.

There are provisions for privacy and confidentiality in adoption court cases, and for the actions of adoption agencies. These are:

  • s.57 of the 1978 Act requires all adoption and freeing court proceedings to be in private 'unless the court otherwise directs.'
  • reg.23(1) 1996 Regs - adoption agencies to treat all information etc gathered under the Regs as confidential.
  • r.67.3 RCS and rr.2.12 (freeings) and 2.30 (adoptions) AS 1997 - provisions in the court rules that all processes and papers will be treated as confidential.
  • r.67.20(1) RCS and r.2.24(1) AS 1997 - provisions in the court rules to protect the identity of adoption petitioners by using a serial number.
  • ss.70(6) and 73(11) 1995 Act - a children's hearing can order that the address of a child is not disclosed to a specified person or class of persons.

These provisions require confidentiality of proceedings and restrict the release of information in much the same way as children's hearing processes. They are designed to protect children and families from inappropriate outside interest, not to keep everything secret from as many people as possible for the sake of it. Confidentiality is crucial, to protect everyone's interests, but secrecy for its own sake does not assist the adoption process. Birth parents and families can be kept up-to-date with plans for the child, without compromising confidentiality; adopters need to be given as much information as possible about the child they are adopting; and all adopted children should learn about their adoption in an appropriate manner at an appropriate age, whether the adoption is an agency or non-agency one.

It is suggested that the legislation and court rules should positively encourage a more open approach to adoption processes by all professionals and parties whenever possible, without, of course, comprising confidentiality or the need for protection when necessary.

Given all the concerns and difficulties, it is suggested there should be a wider range of choices for children. The following options are put forward and include continuing with some existing ones:

  • Residence order. This is an existing option: see pg. 10 above.
  • ' Child Care Order'. Introduce an option of a long-term court order giving parental responsibilities and rights to local authorities, but on a shared basis with parents. Local authorities would be responsible for ensuring welfare and be able to override parents when necessary, putting children's welfare as paramount. But parents would keep responsibilities and rights and be able to stay involved. Such an order would be able to be varied and/or revoked by the court. Children would be 'looked after'.
  • PRO. This is an existing option: see pg. 11. PROs could be seen as more positive and flexible than they often are. The scheme in the 1995 Act allows birth parents to continue to be involved in their children's lives: they (and others) have a right to seek variation and revocation, s.86(5); contact is clearly allowed if it is in the child's interests, s.88; any conditions can be attached to a PRO, s.86(5); and a child may live with birth parents, s.87(2). It should be retained as an option, albeit with changes, as there may be circumstances when taking most responsibilities and rights away from birth parents is of benefit to children. For example, where a parent has mental health difficulties and is not able to exercise responsibilities and rights, although still involved with the child, a PRO may be the best option. They may also be appropriate where birth parents have disappeared; where children are orphans; where children are looked after long-term in residential units; and where children feel let down by parents whom they perceive to be irresponsible in carrying out parental responsibilities. It should be remembered that PROs can be used as a short-term option for children, as well as to make long-term arrangements.
  • 'Enhanced Residence Order'. Introduce an option similar to the provisions for England and Wales in s.115 of the 2002 Act, creating a new order called a 'special guardianship order'. Section 115 inserts additional sections, ss.14A to 14G, in the 1989 Act. The new order will give parental responsibility to the named carers, who are then entitled to exercise this to the exclusion of everyone else except another 'special guardian'. However, birth parents retain some limited rights, particularly the right to consent or not to adoption; and the right ask the court to vary or discharge the order (see ss.14C and 14D of the 1989 Act as amended). This option will be available for children who have been 'looked after' and also for those who have not, e.g. where relatives have directly taken over care from birth parents. The 2002 Act provisions are expected to come into force in 2004, with a support framework, but that is still to be consulted on. However, the child care and legal professionals involved are all clear that, if it is to work as a real option for children, there must be a solid support framework. Those comments would apply equally to any similar order introduced in Scotland. The support could be comparable to that given to 'looked after' children without necessarily treating them as 'looked after' in any or all respects. The Report of Phase I of the Review favoured consideration of this option.
  • Simple Adoption. This type of adoption is used in some countries to provide new legal parents for children, without cutting legal ties with the birth parents. The rules vary from jurisdiction to jurisdiction. It is often used in the context of inter-family adoption. For example, Austria and France have this form of adoption, although they also have full adoption. Simple adoption may be a more appropriate order in family or step-parent adoptions.
  • Full Adoption. Continue with the existing complete legal break, but encourage a more open approach where that is consistent with protection of children. Such an approach should involve a greater acceptance that contact, direct or indirect, may well be appropriate for children in many cases. Awareness of such an approach needs to be emphasised to all involved in adoption: planners, lawyers, decision-makers, including judges, and prospective adopters. The legislation and court rules should positively encourage a more open approach to all adoption processes whenever possible, without, of course, comprising confidentiality or the need for protection when necessary.

Whatever range of options is fixed on, it will be crucial that each one:

  • is flexible in what it offers to children and young people and
  • has meaning for children and young people.

Crucial issues that arises in planning for permanence away from home, whatever the best options, are:

  • when the local authority should start to consider such plans;
  • how they should consider them; and
  • what timescales should be applied to them.

These issues are considered under Chapter 18 below, Adoption Agencies and Local Authorities. They apply equally to plans for adoptive and non-adoptive placements.

QUESTIONS:

1. What are views on the range of options?

2. Should there be a less secretive and more open approach in adoption law and rules, while preserving necessary confidentiality?

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Page updated: Tuesday, March 21, 2006