Family Law

The below article appears in the February issue of Family Law at [2016] Fam Law 148 and has been made available, free of charge, as a service to our readers.

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On 14 January 2016, the Department of Education announced a 'fundamental change to the law' that would ensure that 'courts and councils always pursue adoption when it is in a child's interests'. While the form or content of this legal change remains unclear, the motivation behind it is not. In the press release, the government specifically highlighted the dramatically falling number of adoption orders made in the past 2 years, and built on David Cameron's commitment in November 2015 to 'increase the number of children adopted and speed up the [adoption] process'.

Increasing adoption rates has long been a pre-occupation of UK Parliament and successive governments have pushed adoption as the preferred solution for looked-after children. Following 30 years of declining adoption rates, the Labour government in 2000 outlined a plan to promote the wider use of adoption for looked-after children, with the target of increasing adoption by 40-50% by 2004/2005. Subsequently, when David Cameron came to power in the Conservative-led coalition government, he declared that there was 'no more urgent task'. Cameron and then-Secretary of State for Education Michael Gove outlined their plans for wide-ranging adoption reform in 'An Action Plan for Adoption: Tackling Delay' (Department for Education, 2012) with Gove announcing: 'I can assure you that I will not settle for a modest, temporary uplift in adoption numbers, nor a short-lived acceleration in the process. Nothing less than a significant and sustained improvement will do'.

To ensure that these policy objectives were met, specific targets for adoption were, and continue to be, set. Under Tony Blair's Labour government, these took the form of national adoption targets from 2000 to 2006, with every council expected to raise their number of adoptions in line with this. More recently, however, local authorities have been ranked nationally based on 'adoption scorecards', which measure performance on indicators such as the percentage of children adopted from care; the average time between entering care to placement; and the average time from placement order to matching. (For an excellent discussion on this, see The Transparency Project, 'It's wrong to measure the success of local authorities in terms of adoption numbers', 23 November 2015.)

From the beginning, the government – whether it has been Labour, coalition or Conservative – has emphasised that targets are intended to make sure more children who have been adjudged to need an adoptive placement were found permanent homes quickly and efficiently, and are not meant to bring more children into care. Indeed, the 2012 Adoption Action Plan emphasised that the government does not want scorecards and thresholds 'to distort local authority decisions about whether adoption is the best option for children' (see 'An Action Plan for Adoption', para 102).

Despite these assurances, there is a grave danger that these targets and scorecards do impact on such an evaluation or, at the very least, create the perception that they do so. While providing greater security and stability for children in care is a laudable aim, the way in which this has been pursued by government from across the political spectrum is of great concern.

First, the setting of such targets, and the measurement of local authority success by the number of adoptive placements, may mean that decision-making is distorted and children are placed for adoption where 'something else may do'. Once family intervention is initiated, an emphasis on increasing the number of adoptions may mean that the evaluation of social workers is influenced when considering what is in the best interests of the individual child. When looking at the Department of Education, 'Adoption Scorecards: Methodology and Guidance' (December 2014) document that accompanies the publication of the adoption scorecards, we can see very clearly a mentality that 'adoption is always best'. The document states at p 8 that when looking at the percentage of children adopted from care '[a] higher percentage represents good performance but percentages should not reach 100%'. This effectively means that a national target has been set to raise the number of adoptions as high as possible (short of universality), irrespective of the needs of the individual children. For local authorities, the more children who leave care through adoption the 'better' they are seen as performing. More worryingly, if a child is placed in another type of placement – for example, a special guardianship order – this will have a negative impact on their 'performance'.

While it is ultimately the judge who must decide whether an adoption order is made, the way that investigations are undertaken and the facts presented to the court is highly influential. As The Transparency Project has pointed out: 'It's hard to see how the government policy of increasing absolute numbers of children adopted ... wouldn't have a significant effect on decision-making for individual children, albeit indirectly' (see The Transparency Project, above). There is little doubt that competing for a 'ranking' and being 'named and shamed' can have a significant effect on organisational priorities – if they did not, these mechanisms would be of little value.

Secondly, such an emphasis on adoption risks marginalising other pemanence options and disadvantaging those children in care for whom adoption is not suitable. In the year ending 31 March 2015, only 17% of children who left the English care system were adopted, with others returning home, being placed with relatives or with a special guardian, among other options (DfE, 'Statistics: Looked-after children', 10 December 2015). It is vital that we continue to strengthen other mechanisms for permanency and provide a range of options suitable to the varying needs of children in care. Adoption is not, and cannot be, the answer for every child, and we must ensure it is not prioritised – either professionally or financially – at the expense of developing and supporting a range of appropriate solutions to meet individual needs.

Thirdly concern lies in the public perception of the increased push for adoption and the impact it can have on the relationship between families and professionals. At the very least, a policy of trying to place more children for adoption – even if the children in question are already in care – creates mistrust on the part of parents who may feel that social workers are motivated by factors other than their child's best interests. In this respect, it matters little whether targets have distorted the number of times adoption has been recommended or has had an impact on an individual case. What is important is that the crucial trust between families and local authorities is jeopardised, which can in itself lead to more children being taken into care. In this respect, justice must not only be done, it must be seen to be done.

Finally, it is vital to remember that this push for greater use of adoption is being made in the context of unprecedented government cuts in local authority budgets. The level of support available to families experiencing difficulty has been dramatically reduced, and social workers are being asked to take on more work than ever before. In a 2014 study of social workers, 39% of respondents who had a formal system to manage caseloads said that their allocation was 'over the formal limit', while 61% stated that their ability to make a difference day-to-day was affected by cuts to budgets and resources (see Social Work Watch, Inside an Average Day in Social Work, 2014). In this context, the promotion of adoption takes on a new, and dangerous, perspective.

While adoption can be a wonderful opportunity for looked-after children, it is not a panacea. The government's fixation on adoption risks obscuring and marginalising other permanence options and alienating the very families and children the system should be assisting. We need a more nuanced debate that recognises the advantages that adoption can bring, but respects that it will not be an option for all children and no should it.

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Claire Fenton-Glynn contributes a bi-monthly 'Last Orders' column to Family Law. You can follow her on Twitter @CFentonGlynn.

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