‘Adoption by Stealth’ – the dangers of rhetoric and the law of unintended consequences

 

On July 10th the Family Rights Group launched their report ‘Co-operation or Coercion? Children coming into the care system under voluntary arrangements’ .

I wrote a brief summary of the speakers’ contributions and the report’s recommendations for The Transparency Project.

I commented that this was a very important report, with very sobering findings and it demanded an immediate call to action. It was very clear that parents were finding themselves subject to ‘soft coercion’ when agreeing to have their children accommodated under section 20; that no one took the time to explain to them what was going on and they didn’t realise that they kept their parental responsibility and could remove their children at any time.

This is a particular problem when looking at ‘foster to adopt’ placements. The aim of such placements is to ensure that more children are placed with their permanent carers as soon as possible on a fostering basis while the LA seeks a placement order from the courts.  This is a key example of the tensions inherent in protecting both parents’ and children’s rights.

Parents have a ‘right’ to a fair hearing under both Articles 6 and 8 of the ECHR; an opportunity to make their case and show evidence to the court that they can parent their child. But children have a ‘right’ not to suffer the harm that almost inevitably follows frequent placement between parents, foster carers and adoptive parents.

How do we balance those rights? I agree, to ask parents to ‘give up’ their babies via section 20 into a foster to adopt placement means they are signing up for something very significant, at a time when they are very vulnerable and without any scrutiny from the court or any real access to legal help. It may well be very difficult to ‘unpick’ such a placement as the months go by.

Parents who are involved in care proceedings have autotmatic access to fully funded legal representation, regardless of their wealth or the perceived merits of their case – which is absolutely how it should be. Parents whose children are accommodated under section 20 however, are most likely to only get independent legal advice if they can afford to pay for it, or if they can access help from a charity such as the Family Rights Group. Sometimes a LA can be prevailed upon to pay for a few hours chat with a solicitor but its easy to see how this could be insufficient as a real help to parents. The courts have been quick to condemn what they see as abuse and bad practice around use of section 20 as it removes decisions about where children live from any kind of court scrutiny.

Thus, the lack of understanding about section 20 is clearly a real and significant problem, as detailed by the report’s findings. Articles published in the Guardian on the day of the launch categorised this as ‘adoption by stealth’ and that parents were ‘tricked’ into handing over their children.

I understand that this is the reality of the problem as many parents will see it. I appreciate that journalists have to write in compelling and punchy language to engage their readers. But this rhetoric around such a sensitive issue troubles me.

What is the law about making an adoption order?

The articles did not make any mention of section 21 of the Adoption and Children Act 2002 which sets out clearly that ‘adoption by stealth’ is not a creature known to our law.  A child cannot be placed for adoption unless a placement order is made. There must be court scrutiny of this process and the parents will be involved in this court scrutiny.

The court cannot make a placement order unless:

  • the child is subject to a care order OR
  • the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
  • the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

  • that the child concerned is suffering, or is likely to suffer, significant harm; and
  • that the harm, or likelihood of harm, is attributable to—
    • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the Adoption and Children Act sets out that a local authority must apply to the court for a placement order in respect of a child if:

  • the child is placed for adoption by them or is being provided with accommodation by them,
  • no adoption agency is authorised to place the child for adoption,
  • the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
  • the authority are satisfied that the child ought to be placed for adoption.

EDIT 13/07/17 – I am grateful for the contributions of Tom Perkins, via Twitter

And its not just the ACA that operates as a fetter to arbitrary State interference or ‘stealthy’ social workers. As Tom points out, the SW profession itself is very alive to these issues of concern :

I feel the FRG review was a missed opportunity to promote the growing movement toward ‘Co Design + Co Production with young people and their parents … I was disappointed there was no reference in the FRG report to the DFE funded Guidance produced by BAAF in June 2013 which provides a very clear and easy to understand guide to the entire Foster to Adopt process. For example, compare P 9 of the FRG report and P8 of the BAAF guidance…..there is a world of difference. 

Tom points out that there is now a ‘very high level’ of scrutiny around section 20 which makes it very difficult for social workers to act ‘dishonestly’. Not only have individual Judges issued guidance on these of section 20 in their areas (see for e.g HHJ Bellamy and HHJ Wildblood QC) some have gone even further and have requested information about the LA’s section 20 population. Tom comments:

[The Judges] demanded and have been given access to the entire S20 population and demanded the following: Details of all new S20 admissions; what are the LA plans at 6 weeks? A detailed report from the LA if there is not a plan to come to Court. A detailed plan for each child who has been S20 longer than 6 weeks. 

This has forced those LAs to look hard and long at their S20 population and the reasons for the original admission. It would be hard to imagine that all aspects of the S20 admission – placement – assessment – outcome – long term plan – parental involvement / agreement / permissions etc., have not been scrutinised. Similarly, a number of LA’s have been revoking PO’s that have reached 12 months and the child not placed for adoption. The Care Plan has been changed to CO + LTF. Similarly, OFSTED routinely examine the S20 population during their monitoring visits / inspections. There is no mention within OFSTED reports of any concerns about parents not knowing / not signing S20 agreements….

For further discussion about the law and practice around adoption see these posts about when adoption is considered necessary. 

Why do I worry?

It would have been reassuring to have had at least some recognition of and discussion of this legal framework in both the Guardian articles and in discussions at the launch of the FRG report. Because without it, and resorting to such phrases as ‘adoption by stealth’ and ‘tricked’, there is a risk that the very dangerous narrative promoted by John Hemming and others gains traction and parents continue to be vulnerable to the bad (and expensive) advice they offer.

Hemming and his acolytes routinely dismiss family lawyers as ‘legal aid losers’ or ‘in the pocket of the LA’ and parents are advised (quite literally) to ‘flee’ the country rather than engage, thus ensuring they are denied access to help and representation that could keep their families intact.

The Family Rights Group is to be applauded for the work they have done and continue to do for parents and children. However, they cannot take the place – and I imagine would never suggest they could – of fully instructed, fully funded lawyers for whom the court arena is a second home.

I am glad that such issues are being discussed, that a brighter light is being shone on bad practice and historic failings. I hope to encourage these kind of discussions with the event on September 23rd at the Arnolfini in Bristol ‘Happy Families – the conversations we are not having about adoption’

But it would be an enormous shame if one unintended consequence of this debate was to create even deeper distrust and fear of the legal system which remains the only true safeguard against the arbitrary interference of the State.

As Sir James Munby commented at the launch of the report on July 10th

37 thoughts on “‘Adoption by Stealth’ – the dangers of rhetoric and the law of unintended consequences

  1. Pingback: Placement and Adoption Orders | Child Protection Resource

  2. Pingback: When can the court agree adoption is necessary? | Child Protection Resource

  3. Pingback: Co-operation or Coercion? Children coming into the care system under voluntary arrangements | The Transparency Project

  4. looked_after_child

    I guess my concern is specifically around pretty powerless young women with lots of difficulties about what they cannot do much on their own, being told that the LA believes the child would be best cared for by others and thereafter ‘possession is nine tenths of the law’ to put it succinctly. I suspect you need a very good lawyer to get your child back..and talk of ‘co-production with the child’ is a bit of a red herring in these circumstances…not my area though – would have been however if my child had not been to old for adoption when he entered Care. There but the grace of God..

    Reply
  5. looked_after_child

    Plus from memory there were a few small tweaks in the Children and Social work Act that put ‘foster for adoption’ adopters on an equal footing with friends and family carers when considering ‘disrupted attachments’ if memory serves..

    Reply
  6. looked_after_child

    Here it is…
    New duty under Section 9 of the Children and Social Work Act 201It amends the welfare check list, in Section 14 of the Adoption and Children Act, which the court must consider, the judge must consider, in deciding whether an adoption order should be made.
    The new section adds prospective adopters, who the child’s actually living with, to the list of people which is mainly the birth relatives, when the court considers… the likelihood of that relationship continuing, the value of the relationship to the child, and the ability of the relatives, or now the prospective adopters, to provide the child with a secure environment, and to meet the child’s needs.

    Not sure this is what you might call a level playing field?

    Reply
    1. Sarah Phillimore Post author

      Another useless and redundant amendment. Anyone that the child had demonstrated ‘family life’ with by virtue of living with them and developing attachments should be considered. This is basic Article 8 ECHR provision.

      Reply
      1. looked_after_child

        ..It might be useless and redundant but it makes clear that the DfEs policy on Adoption – that it will ‘work’ as they want it to and they will pass as many useless and redundant amendments as they need to until the judiciary get the message.
        This from the DfE that refused to add to LAs cost burden by strengthening requirements on health checks as regards mental health support or SEND checks for looked after children..Nicely packaged by a venture capitalist ..

        Reply
        1. HelenSparkles

          It might make clear the DFE’s position but think we all knew that way back and it is irrelevant and redundant because no laws have changed.

          The recent case law re adoption is in a sense the judiciary and the legislature disagreeing over the little (sarcasm) matter of human rights.

          Reply
    2. looked_after_child

      The whole can of worms around a level playing field for parents with learning disabilities is set out here.http://www.bristol.ac.uk/media-library/sites/sps/documents/wtpn/2016%20WTPN%20UPDATE%20OF%20THE%20GPG%20-%20finalised%20with%20cover.pdf

      What are the implications for social justice and our democracy when all accept it as the norm that many of these parents will lose their children in the current environment where citizens rights have become so degraded? It is very hard not to see their children as commodities entering the Care and Adoption system where with the best will in the world everyone makes money out of them as caring for them pays their saleries, except possibly adopters who may or may not be told of their likely disabilities given the genetic element of these disabilities.

      Reply
      1. HelenSparkles

        Adopters have full medical reports and genetics is part of that, if the family give SW the info.

        Reply
  7. looked_after_child

    Coram promoted this change as I understand it. Maybe it is a good thing but I really worry these women who give up their children under s20 have little in the way of ‘Agency’ when relinquishing their children and all processes thereafter depend on this. There women may not feel in control of their lives but they feel unimaginable fear..and I would’ent feel any different in their shoes.

    Reply
    1. HelenSparkles

      Coram didn’t promote it as such, they did however have a lot to do with making it work, because the government did not. There are different sets of regulations for adoption and fostering & the whole foster to adopt thing was a minefield. It was introduced along with concurrent planning and it took a while for everyone to work out exactly what could and couldn’t be done.

      On principle, foster to adopt is good for children, because we know how damaging placement moves can be, particularly for children who have experienced trauma/abuse. It means adults are taking the emotional risk rather than children. In practice i suspect it is too big an ask of most adopters, who have predominantly sought other ways to form their family prior to coming to adoption, and a court agreeing rehab home would be understandably traumatic for those people. I wonder how much it is used, would be interesting to know. I have never know foster to adoption to be used in conjunction with S20 unless the S20 is in place during proceedings. It would normally be when an ICO application is being made at birth and when a sibling has been the recent subject of care proceedings, or they have just concluded. It is rare for babies to be relinquished.

      Reply
  8. Pingback: Talking about adoption and voluntary foster care under section 20 | The Transparency Project

  9. looked_after_child

    Well Helen I think that you may not met many birth parents in this position but I bet the Family Rights Group have. CoramBAAF ‘looks after’ ‘foster to adopters’ in the same way. Neither take an entirely disinterested view although the FRG seems a lot more up-front about this than CoramBAAF plus CoramBAAF have the might of the DfE behind them. It is prepared to make legislative change to address their concerns as they have done recently in the CSWA.
    It is manifestly unjust that there is not any requirement to as much as provide information in easy read format on their rights to mothers well in advance of accommodating their child(ren) under s20. What does that tell you about how the Govt. thinks of the rights these families/mothers or how much respect it has for them?
    This is a cultural issue as much as a procedural one. The entirely politicised DfE dos’ent really ‘get’ this – that it cannot just come up with a policy, starve the whole system of money and bully the judiciary into thinking along the same lines as itself, without undermining how society works. These families DO have rights and all should be very concerned that so little regard is paid to them just because they are powerless.

    Reply
    1. looked_after_child

      ..and they are an awkward reminder that political policies were extremely flawed to begin with. Coram BAAF would do well to consider its ethical position as a charity I think for what it is worth…

      Reply
      1. HelenSparkles

        I know you do. I don’t. CoramBAAF does not have the might of the DfE behind them, no idea what makes you think they do. They are in fact a critical friend of the DfE and I am confident that their advice falls on deaf ears at times.

        Reply
        1. looked_after_child

          I’m probably being unfair picking on CoramBAAF because I attended a presentation she made. This are extracts from the transcript
          intoduction – ”…And of course, the Government turned very much to Coram, to lead the work on adoption reform recently, particularly JK, your expert in that area.”

          The CEO’s speech ”Eight years ago, we had 6,000 children waiting, with adoption placement orders, we had inconsistent outcomes, across a whole range of different authorities. We had really quite poor customer service, if you were an adopter, and sequential decision making. And the reform programme has addressed all of these points, and done it well.”

          Since when did adoption become about customer service?

          Lots more of same…..

          Reply
          1. looked_after_child

            Sorry – ‘she’ referred to in the post above is the CEO of Coram . I was very taken aback..it just seemed to me that lines had been crossed.
            …. It is not enough to say ‘well other people are dealing wit different bits of the supply chain’ – we just design the system with the DfE and make sure our bit works.

          2. looked_after_child

            Barnadoes were also there, Head of Business, Family Placement –
            quote from her – ”We need to look at ensuring that we can meet the market requirements, and provide sufficiency to meet those demands”

            .market requirements???
            ..provide sufficiency?????

            Something has gone very wrong when this is how children/families in the most desperate circumstances are being talked about. Hugely repellent and very disturbing.

          3. looked_after_child

            Just been reading the post on this site http://childprotectionresource.online/forced-adoption/
            One of the commentators said this about the Baby Scoop era said this –
            ‘Often, in the ‘Mother and Baby Homes’, adoptive parents would give ‘donations’ to the homes, essentially they were baby farms and children were commodities. The way the mothers were treated in the homes, seen as less than human.

            It was a system based on huge imbalances of power- unwed mothers facing huge stigma and pressure vs adoptive parents with more ‘standing’ in society, more support.”

            Well this may be hard for the likes of Coram and Barnardoes to accept but by using the language of the market economy and focusing on customer service, they have arrived at a point where powerless people, many without support, are being dehumanised and their children have become commodities..and no nothing is ever black and white but this is wrong.

          4. Sarah Phillimore Post author

            I agree with you.
            I recall the words of Elie Wiesel

            We must not see ANY person as an abstraction. Instead, we must see in every person a universe with its own secrets, with its own treasures, with its own sources of anguish and with some measure of triumph.

            Seeing any human as a ‘commodity’ is a dangerous road down which to set.

          5. HelenSparkles

            Agree. Very strange language. Not something I ever heard from BAAF (before they became part of Coram) which was all about finding the right adopters for children. What you have said chimes more with government rhetoric which is about making things easier for adopters (because those pesky SW were slow and bureaucratic etc.). Adoption is a service for children. We need more adopters who understand the needs of those children, if there is ANY kind of market to be served, it is the child’s needs being met.

          6. looked_after_child

            There is another quote that I cannot recall..maybe other can?..that goes along the lines of ‘If you can convince someone, that another person is not human, you can convince them that it is OK to do anything you want to that person’ .. as it were.
            Advice to Coram although I cannot see them taking it any day soon. Better to use words like ‘Birth Family, Child and Adoptive family’ rather than ‘persecutor, victim, rescuer’

            when trying to show Coram care whether women (often disabled, often Careleavers) are giving informed consent to supposedly consensual to ‘Foster to Adopt’ arrangements.

            http://www.transparencyproject.org.uk/cooperation-not-coercion-in-foster-to-adopt-placements/

          7. looked_after_child

            .. and the issue between Coram et al and the FRG is about this..more children removed from parents are being placed within the wider family ( FRG leads on this) than being placed for adoption ( CoramBAAF leads on this) than ever before and the adoption charities are seeing their ‘market share’ reduce.

            There is a place for both obviously. What is not right is that the FRG is ploughing such a lonely, unfunded furrow but the DfE has weighed in behind Coram.

            Who needs conspiracy theorists when you hear this naked commercialism from charities like Coram who should have the needs of the child at the centre of what they do.

            As for the DfE and their political and commercial masters…..no words.

          8. HelenSparkles

            ‘persecutor, victim, rescuer’ describes the drama triangle.

            & as John Simmonds points out, S20 to adoption is not possible without the intervention of the courts. I have had cases where S20 has been in place until the final hearing because the court has not granted an ICO on the basis of parents agreeing to S20 and the need for PR sharing not being an issue. However, parents have free legal representation throughout those proceedings, from pre proceedings onwards, and it is only the making of care orders and placement orders that enables adoption. No placement can assume the outcome of care proceedings.

    2. HelenSparkles

      I don’t really understand what you mean but CoramBAAF looks after foster to adopt in the same way. They don’t. All adoption agencies have some carers approved under fostering regulations so that a child can be placed with them pre-adoptions, this would otherwise be an illegal placement. I would be surprised if the take up is high anywhere, since adopters are primarily people who have already tried to form their families in other ways (altruistic adoption does happen but is rare) and this is a trauma too far. I understand that.

      You are absolutely right that people should be given as much info about S20 as possible, I would want them to have that, and to have legal advice but unfortunately many people are not entitled to legal aid outside care proceedings. Of course families have rights but so do children and it isn’t uncommon for children to remain on S20 during care proceedings. This gives them more rights not fewer in terms of PR. Most children on S20 are though older children and they aren’t adopted. The ceiling for a successful adoption is around the age of 5.

      My knowledge of adoption is based on a role I don’t really want to discuss here but which involved working with most LAs in the country. I mention it so that you know I’m not just talking about the few people I’ve met locally. The granting of a placement and care order would be part of care proceedings, where parents have free legal representation, and where the LAs portion would have been made v clear.

      it is always better for children to be with their family of origin where they can be, at home with parents, or with family members. It just isn’t safe sometimes to do so and I think I just need to say that the adoption cases I have been exposed to are cases that nobody would shy away from removing a child from. That doesn’t mean of course that nothing ever goes wrong – as I always say.

      Reply
  10. Angelo Granda

    But is foster- to- adopt really adoption achieved by the back door, likewise long-term fostering with a permanency plan?
    Following the issue of a placement order , children have another chance to avoid it at the case which issues a final adoption order. They have one more chance to return to their real Mums and Dads.
    This is denied them when these other permanence plans are followed unless the family can get permission and funding to appeal the original care-proceedings. In many cases when a care -order is issued on the basis that threshold criteria for neglect are satisfied , all the Judge does is follow advice and agree the care-plan with SW’s and Guardian. They don’t issue a ‘permanence’ order as such. Thus rehabilitation is counted out by the LA inhumanely. The Guardian leaves the picture once a care-order is issued.

    Reply
    1. HelenSparkles

      The placement order is granted or not on the same basis as for any permeant placement outside the family of origin, the potential adopters just have to be approved as foster carers in order to look after the child legally. Anecdotally, a foster to adopt placement didn’t adopt any of the three children placed with them under fostering regs.

      Reply
  11. disgusted at Hewson & Just

    Dear Sarah.

    What I am seeing on your timeline today, especially this evening right now is deplorable. Hewson and Just are seriously mentally ill. It is IMHO the authorities putting them both up to this. Simon Just a.k.a @majorleak2017 intimated as much several weeks ago. These are surely signs of the mass psychosis taking a firm grip on the authorities and these mental ill trolls they are apparently supporting.

    However, despite your not being able to afford any civil actions, they would be pointless. I know many people that have gone to considerable expense to obtain retstraining orders that quite simply are ineffective and not worth the paper that they are printed on for the abusers merely carry on without fear of any civil or criminal penalty.

    What victims like yourself can do is beyond me, there is no answer. It is a sad fact that Twitter actually support this type of abuse, it is their bread and butter, for they are fully aware that this is the kind of behaviour that draws massive attention to their very sick social platform.

    Are you watching your twitter timeline analytics, if not then do so and you will probably discover your timeline is being viewed several thousands of times a day if not more, an indication that people are actually enjoying and revelling in your misery but do nothing about it to support you.

    If you are not aware of twitter analytics, then simply google search ‘twitter analytics’ and clidk on the google result returned and it will install the facility on your timeline for only you to see and you will see what I mean.

    I wish you well, but i firmly believe you are stuck with this abuse until they achieve their objective and force you off of social media.

    Reply
    1. Sarah Phillimore Post author

      Thank you for your reply and sadly I agree that there seems no action anyone is willing to take against these people
      Therefore I will continue speaking up and out.

      I am not made ‘miserable’ by it – growing up disabled has at least given me a rather thicker skin than many of their victims. I think this explains why they continue to attack me with such vigour – they are simply baffled that they are not having the impact they want.

      Reply

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