Family Law

Cast your minds back to March 2012, when the Government launched its campaign to promote adoption.

Adoption in 2012 was at its lowest point in a decade – with only 3,000 children adopted in 2011. In 2012, only 60 babies (children less than 12 months) were adopted.

Led by Michael Gove MP, Secretary of State for Education, who was himself adopted as a baby, the Government wanted to promote early successful adoptions – not thwart them.

The Government were firmly of the view that the ‘adoption system’ took too long. Things needed to be speeded up. Decisions to remove children from their birth families needed to be made in a more timely way. More children ought to be provided with a stable, loving and permanent adoptive home. And here began the firm focus on timescales within adoption.

What has changed?

Since 2012, everything has been speeded up and shortened. The adoption assessment (two stage process) has quickened. Prospective adopters can now expect to be assessed within 6 months by their local authority. The family justice system has sped up – care cases now concluding within 26 weeks not within 50+ weeks, previously taken. First4Adoption was launched providing immediate comprehensive online information to prospective adopters.

Economies of scale became a powerful argument within adoption. A huge increase in children requiring a stable, loving and permanent adoptive home was anticipated. Government expansion grants were awarded to enterprising adoption agencies that began to size up to meet the demand.

For a while in 2013, the numbers of children requiring adoption did increase. As at 31 March 2013, there were 5,480 children waiting to be adopted (as opposed to 3,000 in 2011). Numbers of approved adopters have also dramatically increased. In 2013/4, 5,450 adopters were approved – an increase of 32% from 2012/3.

And then the Government adoption reform agenda began to go wrong.

Background to the Myth Buster Document

In September 2013, two high profile court judgments were reported – Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. The impact of these two judgments upon the Government’s adoption reform agenda is staggering.

By way of background, when Social Services decide that the plan for a child is likely to be adoption then have to two steps to take:

• The plan for adoption must be approved by a senior manager within Social Services (Agency Decision Maker).
• Then make a Court application to a Placement Order – to be able to place the child for adoption.

No of adoptions are continuing to decline

The Adoption Leadership Board has reported a 47% decrease in Agency Decision Makers approving an adoption plan for a child. And a 51% decrease in the granting of Placement Orders. In short, rather than increasing the numbers of children to be adopted – there has been a dramatic 50% reduction.

Practitioners within adoption are witnessing unprecedented times with more approved adoptive parents than ever before but no suitable children to match them with.
The Government is determined to try to resolve the current situation and published a 14 page – Myth Buster document in mid-November. The aim of the document is to undo the perceived damage and misunderstandings caused by the September 2013 Re B and Re B-S cases

What are Re B and Re B-S all about?

The Supreme Court, in Re B and Re B-S, upheld the plan of adoption. The conclusion of each case is not dramatic. The Court agreed with the lower courts and confirmed the plan for adoption. What is far more dramatic are the general comments made by the Supreme Court about adoption.

In Re B, the Supreme Court used powerful language when referring to non consensual adoption – 'very extreme thing'; 'a last resort'; 'nothing else will do' and 'exceptional circumstances'.

Re B-S, the Court repeated some of the statements in relation to adoption made in Re B, thus adding weight. The Court also took the opportunity in Re B-S to highlight the need for all professionals to provide expert, high quality, evidenced based analysis of all realistic options for a child - and the arguments for and against each of these realistic options.

The Re B-S judgment is essential reading for all childcare law practitioners. It is hard to disagree with a single word of it.

However, perhaps in an effort to speed things up, sloppy professional practices had developed. A 'sloppy' practice of - identifying a child who was suffering significant harm (typically neglect), quickly deciding that the birth parents were unable to change and then with similar haste making a plan for adoption because the child was young.

It may have been, in some cases, a great deal of good work had been done by the professionals involved – but this was not reflected in the 'sloppy' court paperwork. In other situations, perhaps more could have been done to support birth family members and work with wider family members - to try to keep the child within the family.

The fundamental principles of the Children Act 1989 remain. Provided it is in the children’s best interests:

• children should remain living within their birth families;
• the placement of a child with a relative or friend to the child is to be given preference over fostering and adoption.

In my view Re B and Re B-S were reminding us of this. Speed is not everything.
Since Re B and Re B-S, there are worrying reports of courts favouring long-term fostering for toddlers – because fostering in an option and 'will do' and better than entering the 'last resort' and 'exceptional' world of adoption.

There are also anecdotal reports of any and every wider family member being assessed and reassessed, because of the drive to keep away from adoption. This confusion may have culminated in a 50% reduction in children being placed for adoption.

The challenge of Re B and Re B-S is the language. Lawyers like to analyse and dissect language. Numerous fostering placements rather than a permanent adoptive home – may get us over the 'will do' hurdle, for a toddler. But we are trying to act in the best interests of vulnerable toddler.

The language of 'last resort' – suggests only use this if you are absolutely forced to and ‘we would prefer it if you didn’t’. This is unlikely to have been the intention behind the language used in Re B.

Coupled with a Re B-S compulsion to comprehensively analyse options for a child to a requisite Court standard, seems to have resulted in any placement option, if it contains some positives, being seized upon in preference to adoption.

Re B and Re B-S were trying to remind us, in the strongest terms, of the need to give preference to children remaining within their birth family, including wider birth family, provided it is in the child’s best interests. Part of the process of preferring is offering appropriate support.

We are also reminded that in making decisions for a child, which are against the wishes of their parents, the thought processes of professionals involved need to be carefully evidenced and analysed, to the standard of the court. It is the court who ultimately decides and grants a court orders.

Earlier in 2014, BAAF published a Practice Note – Evaluation of Permanence Options for a child in care proceedings in England – which practitioners may find useful.

In essence the Government’s Myth Buster reminds us that:

• the legal test for adoption has not changed;
• only realistic options need to be considered, not all options for a child;
• adoption is not only appropriate where 'nothing else will do';
• planning for adoption must not wait.

It is unlikely that the Myth Buster document will redress the current confusion within adoption. It is too long. In addition, its status is unknown. It may be difficult to quote the Myth Buster document in court. The document is neither legislation nor case law.

It is rumoured that the President of the Family Division, Sir James Munby – author of Re B-S will shortly produce a published judgment, resolving some of the confusion within adoption caused by the September 2013 case law. A new case for us to quote to counter Re B and Re B-S – and undo some of the confusion surrounding adoption. We will see.

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This article was originally published on the Michelmores website and has been reproduced here with permission of the copyright owner.