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

Chapter 15. Panels: Fostering, Adoption and Permanence

(a) Terminology and Functions

There are a variety of names given to panels, the main terms being:

• Fostering Panel;
• Adoption Panel;
• Permanence Panel.

The first two are specific statutory names, and the last one is not. There are two important facts to remember about panels: they make recommendations, not decisions; and the statutory duties for adoption panels include considering plans for children, while those for fostering panels do not.

Fostering Panels are part of the local authority system for approving public foster carers. Every local authority must have a panel in terms of the F Regs, reg.4(1). The panel's functions are set out in reg.6, and in particular, it has a duty to recommend to the authority whether a person is 'suitable to be a foster carer' and if so for a particular child, any child or certain categories of children, reg.6(1). In approving a carer, the local authority must consider a report from the panel with its recommendation on the carer's suitability, reg.7(1)(d).

Adoption panels have been part of the internal processes of adoption agencies for many years. Every adoption agency, local authority and voluntary, must have one, unless the agency is a voluntary one which does not approve plans for children or adopters, reg.7(1) and (2). Agencies have to follow the regulations or they would be failing properly to carry out their duties. The 1996 Regs set out the duties of panels:

• to recommend to the agency whether adoption is in the best interests of a child, with or without freeing, reg.11(1)(a) - 'child plans' recommendation;
• to recommend to the agency whether a prospective adopter is suitable to be an adoptive parent, reg.11(1)(b) - 'approval of adopters' recommendation;
• to recommend to the agency whether a particular adopter would be suitable to adopt a particular child, reg.11(1)(c) - 'matching' recommendation.

Some local authorities combine the two panel functions in one body, and some do not. Various combinations of names are used, such as Fostering and Adoption Panel or Adoption and Fostering Panel. The term 'Permanence Panel' has no statutory meaning and is sometimes used for a combined panel, and sometimes for a panel that deals with adoption recommendations as well as non-statutory ones about other permanence plans for children. The Adoption Policy Review Group recommended in its Phase I Report 'that local authorities should have one panel to consider all decisions about permanence away from home, including adoption.', Chapter 1, Recommendation 7.. Consideration needs to be given to creating such 'Permanence Panels' and imposing duties on them to make recommendations on all permanence plans for children, and appropriate matching, not just in adoption cases.

Another suggestion for change would be to create new 'Carer Panels', to make recommendations about all prospective carers, for fostering and adoption. Obviously, assessment and approval of adopters is a different task from that of short-term foster carers and respite carers, but the work for long term foster carers has similarities. Tasks could then be divided between Permanence Panels - planning for children - and Carer Panels - approval of carers.

There may be a view that adoption/permanence panels are not necessary for child or matching matters and that agencies could carry out the overview of assessment of such plans through a system of 'looked after' and other internal reviews, followed by decisions by the agency decision maker. However, this could be difficult for voluntary agencies

(b) Fostering Panels

The regulations about Fostering Panels, regs.4-7 of the F Regs, are less detailed than those for Adoption Panels. Consideration needs to be given to extending the provisions in the regulations, by:

• providing for appointment of legal advisers to panels, and a duty on them to attend and/or advise;
• giving a right to applicants to receive their assessment reports, excluding confidential third-party information;
• giving a right to applicants to attend panels (they usually do in practice, but there is no right to be invited as there is for prospective adopters);
• inserting a duty on the local authority to involve panels in reviewing foster care approval. At present, the local authority do not need to consult the panel;
• increasing the details generally in the review provisions for foster care approval, in reg.10.

These issues would be relevant for general 'Carer Panels'.

(c) Adoption Panels: children

Questions have arisen about whether children could attend the panel discussing their plans? Children should not be required to attend panels, but older ones often wish to do so, and such attendance is in keeping with the principles in the 1978 and the 1995 Acts, about the views of children, as well as children's E.C.H.R. rights. Specific regulatory provision would avoid children's wishes to attend being ignored because adults did not think it appropriate.

(d)Adoption panels: birth parents

As indicated above under heading (a), pg. 85, adoption panels make statutory recommendations about three matters: 'child plans', 'approval of adopters' and 'matching'. In the past, birth parents with parental responsibilities and rights have not normally been invited to panels considering their children's plans or matching them with prospective adopters. However, the issue that increasingly arises is whether there should be a duty on agencies to invite birth parents. The National Care Standards: Adoption Agencies (Scottish Executive, 2002) suggest that birth parents should know about the panels for their children and have access to the reports, excluding confidential third party information: see Standards 14.3 and 16.2. Although not the universal practice, some agencies in Scotland (and in England and Wales) already invite birth parents to panels making recommendations about children.

The objections to inviting birth parents can be logistical and/or that there is no history of doing so. However, for many birth parents and their advisers, the proceedings of adoption panels seem shrouded in mystery and tied in with the tradition of secrecy in adoption. Given that birth parents are invited to and have rights to attend child protection case conferences, local authority 'looked after' reviews, and all children's hearings and court proceedings, it seems inconsistent to exclude them from adoption panels. The impression given to many outsiders, albeit erroneously, is that there is something particularly secret being dealt with at panels, whereas it is simply a required administrative stage in the planning process for children.

Looking at the process from an E.C.H.R. perspective, exclusion of birth parents does not tie in with the general principles of openness. While adoption panels do not make decisions (only recommendations); and neither the recommendations nor the agency decision-makers' subsequent decisions make any 'determination of…civil rights and obligations' (Article 6, E.C.H.R.), because only the courts can do that, it seems only fair to allow birth parents to attend. This view is strengthened by reference to Article 8 of the E.C.H.R., which provides that everyone is entitled 'to respect for his private and family life'. Including birth parents in panel meetings would accord them this respect.

There have been two recent sheriff court cases looking at this issue:

• Dundee City Council v M, Sheriff K Pritchard, 29 November 2002, 2003 FamL.R. 28. A freeing application was dismissed because the birth parents were not at the adoption panel. This case has been appealed.
• Dundee City Council v W, Sheriff I Dunbar, 20 January 2003, 2003 FamL.R. 35. The sheriff refused an application to dismiss a freeing application before the proof hearing, although the birth parents had not been at the adoption panel. He held that the matter should be looked at in the round after all evidence was led, and that to dismiss the case would simply cause delay which was in no-one's interests, particularly the child's, whose welfare was paramount.

Reference should also be made to Scott v U.K. 2000 FamL.R. 102, where the European Court dismissed an application by a mother whose child had been freed, on the basis that her Article 8 rights had not been breached despite there being some meetings which she was not invited to attend. And there is also the English decision, Re L [2002] 2 F.L.R 730, where Munby, J. held that a care order should be made and the amended plan for adoption approved despite breaches of the mother's rights.

Consideration needs to be given to this area of law and practice, with a view to providing clear rules. Included in the debate should be the issues:

• whether any rights of attendance given to birth parents should include going to matching panels, as well as child recommendation ones;
• whether any rights of attendance given to birth parents should include fathers without parental responsibilities and rights, if they are 'significant adults' in the children's lives.

(e)Adoption panels: Adopters

At present, prospective adopters in Scotland must be given a copy of their assessment report as sent to the adoption panel (excluding third party confidential information) and must be invited to attend the adoption panel: regs.10(5)(b) and 11(3). These provisions were introduced by the 1996 Regs in 1997, and reflected existing good practice.

These provisions seem to work well, although reg.11(3) is ambiguous. It says that panels can only make approval recommendations 'where they had the opportunity to meet with the prospective adopters'. The intention of the provision was to ensure that all prospective adopters were invited to meet the adoption panel considering their case, but that such attendance was not mandatory or part of the assessment process. This is supported by the Guidance, Vol. 3, page 22, para. 115 and is good current practice, but there is dubiety given the wording. Unfortunately, this has led some to believe that an adoption panel can only consider the case of prospective adopters if they have actually met with them. It would be helpful to have clearer regulations about this.

(f) Fostering and Adoption panels: general

Without imposing excessive rigidity, there is scope for providing more detail in regulations and/or guidance about fostering and adoption/permanence panels.

• The meaning of 'panel'. At present, the word is used interchangeably in the 1996 Regs and the F Regs, to refer to the whole group of people whom an authority/agency can use to meet and to make recommendations; and to refer to individual meetings making recommendations. This ambiguity could be removed by a change of terminology, such as calling the first 'panel' and the second 'panel meeting'.
• More detail is required about qualifications of panel members. At present, it is up to authorities/agencies to be satisfied that the numbers, qualifications and experience of members are such that it can carry out its duties: reg.5 of the F.Regs and reg.7(3) of the 1996 Regs.
• More detail is required about having a man and a woman at each panel meeting. At present, there are no requirements at all about gender balance in the F.Regs, either for the panel as a whole or for individual meetings. In the 1996 Regs, reg.7(4) imposes a gender balance requirement only for the panel as a whole. It is good practice to have a gender balance at each panel meeting, and it would be helpful to debate whether the regulations should specify this or not.
• Clarity is required about the style, form and status of panel minutes. There is a wide variety of style, and greater clarity and uniformity could be helpful, particularly in disputed permanence cases, where minutes are often lodged as court productions.

QUESTIONS:

51. Should 'Carer' Panels deal with approval of all carers, foster and adoptive ones?

52. Should agencies continue to have adoption/permanence panels as part of the planning process for children?

53. Should children have a right to attend a panel looking at plans for them?

54. Should birth parents have a right to attend panels looking at plans for their children and matching them with adopters?

55. What are views on the proposals to amend the details of provisions for panels?

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