Public Law Working Group report: chapter summaries and analyses
CoramBAAF welcomes the publication of the Public Law Working Group (PLWG) adoption sub-group report. ‘Recommendations for best practice in respect of adoption' contains a wealth of recommendations across five chapters aimed at supporting the continued modernisation and adaptation of the adoption process.
Whilst there is no suggestion of a radical overhaul of the adoption system, the recommendations identify the huge amount of work required across the sector to keep the system fit for purpose for the future.
Each chapter makes realistic, practical recommendations to address the identified difficulties with the current law and practice and their application. The report recognises the lifelong impact of adoption and recognises the need to support a child's identity through staying in touch with their birth family. There is, however, no expectations for contact orders to be routinely made where adopters oppose it, rather, that earlier support will facilitate connection. There is recognition of specialist requirements for international adoption.
Adoption continues to play an important role for some children. The volume of recommendations adds up to a significant amount of work which for all those involved in permanency planning will require significant resourcing to achieve.
We look forward to playing our part in taking the recommendations forward and ensuring that we keep the system fit for purpose to meet children's needs now and for the future.
Chapter summaries and analyses (please note we will be publishing more detailed summaries of the implications for practice)
Chapter 1: adoption and contact
We welcome the approach taken by the PLWG in relation to adoption and contact. Those with lived experience constantly reiterate the need for an individual, flexible approach which allows for differences in circumstances and can also adapt to reflect the changing needs of the child throughout childhood, teenage years and beyond. For instance, it should not be presumed that every child will always want to pursue enquiry or connection or that such arrangements function well in other kinds of fostering and kinship arrangements.
The proposals reflect changing attitudes and practice in adoption in England and are welcome. The rise in use and presence of the internet mean that it is no longer possible to have ‘closed adoptions’ in the way it would have been historically. Social media allows easy tracing and contact by both children wanting to trace and know about their birth family members, and vice versa.
Anecdotally, CoramBAAF is aware that practice in relation to adopted children staying in touch with their family is changing. We have increasingly heard accounts of adopted children maintaining links with their birth family and significant people, and that they have been supported to do so by their adoptive parents. In many cases, adopters are better prepared and understand the critical role staying in touch plays in developing a balanced, healthy sense of identity. We do, however, understand that this change in culture is not always reflected in court and many plans for ‘staying in touch’ remain ‘indirect’, such as ‘letterbox’, a system which is outdated and frequently not sustained. The important thing to stress is that there is a need for sensitive, supported and tailored plans for the child and not a ‘one size fits all’ approach.
Change in practice is necessary and welcome, but will require significant resources in terms of training, tools and guides for social workers, adoptive parents, birth family, other professionals and children to help enable this to happen in the way that the PLWG envisages that it should. We have begun this work in updating our forms: the Child’s Permanence Report (CPR) - currently in pilot - Adoption Support Plan and Prospective Adopters Report in particular. We have developed training for social workers to support them writing and developing staying in touch plans and are working on the development of a National Curriculum for adopters.
Chapter 2: access to records
Adoption has lifelong implications for all those involved. The report sets out the various ways in which access to adoption records may be sought and raises concerns that the courts are being increasingly involved in disclosing their records to adopted adults without having the resources or training necessary to support the applicants. A survey of courts (included in the report) identified significant inconsistencies in judicial allocation, timescales, fees and procedures. There is no central register of where records are stored and very little guidance on how applications should be decided. The report identifies the increasing complexity and demand for information and the need for legislative change to ensure that this demand is met appropriately and within a reasonable timeframe. A major issue is the need for support and the suggestion that intermediary services be extended to post-commencement adoptions.
A draft template for applications is provided and recommendations made for a national protocol, standardised timescales and guidance from the President on the exercise of discretion.
Four flowcharts accompany this report (Appendix A) showing the following:
(i) obtaining the original birth certificate of an adopted person
(ii) seeking information or contact through intermediary services
(iii) pre-commencement access to information
(iv) post-commencement access to information
As in other parts of the report, the updating of the Statutory Guidance on adoption from 2013 is recommended, particularly to include the role of regional adoption agencies.
Chapter 3: practice and procedure
The third chapter considers court processes and procedures and makes suggestions for reform. This chapter provides very detailed, process level recommendations, some of which have needed clarification for many years.
The report raises a concern that the existing statutory provisions for leave to apply to oppose the making of an adoption order create delay and anxiety and give parents an unrealistic expectation that they may have another chance at regaining care of their child. Changing these provisions would require legislative amendments, but the PLWG suggests that this should be reviewed in 12 months - when it can be seen whether the recent changes in eligibility for legal aid result in a reduction in unmeritorious applications.
Another legislative amendment suggested for consideration is the extension of the period of a child living with a step-parent before an adoption application can be made (six months being considered too short) and a reduction in the validity of a notice of intention to adopt (two years being considered too long).
The need to update the Statutory Guidance (2013) is identified and we agree that this is badly needed. A 2014 revision has never been brought into force and there have been many changes to legislation and practice since then. Areas to be considered include clarification that in early permanence placements an application to adopt can be made after the child has lived with the carers for ten weeks, including time before matching. The statutory guidance and Family Procedure Rules should be updated to reflect the decision and recommendations of Re A, B & C [2020] EWCA Civ 41. Other issues which the statutory guidance could helpfully address are the delays in assessment caused by waiting for DBS checks and whether the agency should proceed to Stage 2 without them, as well as whether an early permanence placement can be approved before a child’s birth or after a placement order has been made.
The report also makes recommendations for the development of national protocols and templates for courts and for adoption agencies to streamline adoption processes and to address the issues identified in the Somerset case and in the Cumbria Child Safeguarding Practice Review.
Suggestions are made for the production of guides and template statements that would assist birth parents and prospective adopters - who may not be legally represented - and for the use of template orders to provide consistency across courts.
A recommendation is made that work be undertaken to produce one unified report to meet the requirements of the Adoption Agencies Regulations and Family Procedure Rules for Annex A, Annex B and CPR. The CoramBAAF combined CPR and Annex B report is referenced. This report has been revised and updated and is currently being piloted in various local authorities and court areas. CoramBAAF would be happy to work with the PLWG and its members to ensure that this revised version delivers the expected quality improvements that they seek, and to discuss how it can be expanded to cover the Annex A requirements as well.
Chapter 4: adoptions with an international element
The report sets out the various types of international adoptions, incoming and outgoing, and the ways in which these are accomplished. The astonishing quantity and complexity of interacting Acts and Regulations that have to be considered and applied leads to delays, misunderstandings and mistakes that have a significant impact on children and families. It describes the system as ‘just about working’ and recommends that the relevant legislation be consolidated into one statute and one set of regulations that can be applied without the need for constant cross-referencing. Such a consolidation process should also address the anomalies and clarify areas of confusion that the report identifies.
The report notes that this is a specialist area of law, but that often parties to proceedings are not represented. Cafcass Legal are often the only lawyers in court and their expertise is vital. The need for this resource to be properly resourced is emphasised. It is also suggested that a referral unit be set up to deal with non-convention adoptions and that the Home Office fast-track visa applications for children where the adopters have complied fully with legislative requirements.
Chapter 5: adoption by consent
The report identifies that adoption by consent is relevant in a very small number of cases, but that one case may combine complex issues found in other adoption cases. There is a need to consider notification of wider family (Re A, B & C); to consider an early permanence placement, finding specialist counselling and legal advice for the parents and decisions about maintaining a relationship after adoption. The low numbers of these cases means that social workers have few opportunities to gain experience in dealing with them. Mothers are often understandably distressed and unable to engage with services. Co-ordination across RAAs, adoption agencies and Cafcass to develop a specialist service is recommended to meet the needs of these families.
Download the Public Law Working group report.
Alexandra Conroy Harris, Legal Consultant, CoramBAAF
Jane Poore, Adoption Consultant, CoramBAAF