Adoption Agencies (Panel and Consequential Amendments) Regulations 2012
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, like others, I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, for raising the issues that she has today and for giving us all the opportunity to discuss the role of adoption panels. I was glad that she came in last week, with my two noble friends, to see my honourable friend Mr Loughton. I know that he was glad to have the opportunity to meet her and other noble Lords, and to respond to the concerns put to him. I think that we had a useful discussion on that occasion.
I will make sure that Mr Loughton sees the evidence to which the noble and learned Baroness and other noble Lords have referred today because I do not think that the submissions to which she referred have yet come through. I also take the wider point, which was also made by the noble Baroness, Lady Howarth, about the importance of making sure that the various strands of what the Government are doing and the work of the committee are joined up.
That also relates to the question put to me by the noble Baroness, Lady Jones of Whitchurch. There are a lot of separate strands, on some of which consultation is taking place and on some of which it is not. It might be helpful—I will commission this from colleagues—if I pull together where we are on various issues; for example, the timescales, the proposals around consultation and so on. Like the noble Baroness, Lady Jones, but unlike all other noble Lords here, I am relatively new to this as well. As I am trying to understand where we are on a number of fronts, it might be helpful if I can pull it together and set it out.
I hope that that also responds to the point put to me by the noble Baroness, Lady Howarth: in laying the regulations on adoption panels, the Government were not seeking to pre-empt the conclusions of the committee. Nor, obviously, did we intend any disrespect to the committee. It was simply that the Government had announced that they had accepted those recommendations from the family justice review on that specific point on the adoption panels back in February before the committee, I think, was convened. This relates to a point made by my noble friend Lady Hamwee. We know that the lives of vulnerable children can be improved by making rapid progress, which makes us want to make progress as fast as we can. However, we have to recognise the whole time that we need to strike the right balance between wanting to make progress where we can identify issues that we are able to knock off and move on, and needing to make sure that the safeguards are there so that we do not end up approaching it in a piecemeal way but with a consistent approach across the piece.
As has already been alluded to, the Government accepted the recommendations of the family justice review as part of their overall drive to speed up the system, which we all agree has become too slow. Noble Lords know better than me that the delay damages a child’s development. Where adoption is right for a child and subject to proper safeguards, the adoption process should work as smoothly and swiftly as possible. It is not right that children should have to wait more than a year for care proceedings to be completed by the courts or that it takes an average of one year and nine months for a child taken into care to move in with their adoptive family.
The previous Government recognised this when they set up the family justice review. Tackling delay in care proceedings was one of their key objectives. The 55 weeks for a child’s case to progress through the courts is a very long way from the 12 weeks—I think it was that—envisaged when the Children Act 1989 was introduced.
This Government, like the previous one, are keen to reduce delays. In March, we set out our plans in An Action Plan for Adoption, to which my noble friend Lord Eccles referred. On 6 July, the Prime Minister announced further measures to see children, particularly the youngest, moving in with their adoptive parents as quickly as possible. I know that the Select Committee is looking at this issue through its call for evidence and discussions with expert witnesses. We look forward to hearing the committee’s views in due course.
In the overall context of wanting to reform the system, we have brought forward the adoption agency regulations we are discussing today and which we plan shall come into force in September. I will briefly set out what we do and do not propose. I know that Members of this Committee are clear on them, but this is an opportunity for me to put on the record the Government’s stance because I know that many people are interested in them.
Adoption panels will continue, as now, to provide independent scrutiny in cases where parents have relinquished their child for adoption, and in cases where a child has been taken into care and parents have then consented to the child being adopted. That is because in cases where the birth parents support the decision that the child should be adopted, there is no further role for the courts and so no independent scrutiny of the local authority’s decision; therefore, we can clearly see the need for panels. That means that the adoption panel function is not removed in any circumstances where the case is not scrutinised by the courts, and only in cases where there is parental consent to the adoption under Section 19 of the Adoption and Children Act 2002.
The regulations do not propose to change the role of adoption panels in assessing the suitability of prospective adopters, or in the matching of children with approved prospective adopters. These will continue, and we have an open mind about the future. It is important to say that my honourable friend Mr Loughton is considering whether future changes, including to the size and membership of the panels, would strengthen and speed up the system. He would very much welcome the views of the committee on this in due course.
The change that we are proposing concerns the decision-making process at the point where adoption becomes the plan for a child in care. The amended regulations relate to those cases where a social worker’s recommendation that a child should be adopted need to be scrutinised by the court through the process of a placement order application. In these circumstances we propose that the adoption panel should no longer have a role. Rather than refer the case to the adoption panel, social workers will send their recommendations directly to the decision-maker, an experienced social worker and senior local authority official. If the decision-maker agrees with the recommendation, the local authority will make an application to the court for a placement order.
I have been asked why the Government are proposing this change, and we have talked about duplication and delay. In cases where the court will need to consider an application for a placement order, the role of the adoption panel is duplicative. I am grateful to the noble Baroness, Lady Jones of Whitchurch, for making the point that if we have a system in which we have confidence, having just one system is desirable in principle. The courts see the same evidence as adoption panels. They provide independent scrutiny of the local authority’s adoption plan. Having adoption panels and the courts both providing independent scrutiny seems unnecessary and, indeed, a potential cause of delay. As noble Lords know, that was the conclusion of the family justice review. The recommendations of that review were widely consulted on and, over time, they have received broad support. The review heard evidence from the judiciary, local authorities and the Family Justice Council which showed that children’s cases were being delayed while the courts waited for adoption panels to make their recommendations. Although there were respondents to the review who opposed the recommendation to remove panel scrutiny of these cases, the majority of respondents recognised that detailed court scrutiny was a sufficient safeguard.
We have discussed whether panels add delay. The noble and learned Baroness, Lady Butler-Sloss, referred to the Ofsted survey and questioned whether there is any evidence for this. When the family justice review looked at this, it concluded that it does. A judgment published last year by Her Honour Judge Lesley Newton highlighted that the adoption panel had added 83 days to the process. I recognise the point that has been made forcefully by noble Lords that there is conflicting evidence around this, and therefore the core argument that the Government would make is around duplication. However, we have also concluded that there is evidence of delay as well.
I want briefly to put these changes into a historical perspective. I hesitate slightly to do so because again I know that there are noble Lords here who have helped to construct these systems over many years. Adoption panels have been part of the decision-making process for the best part of 30 years now. They were originally introduced in 1984 because of the changing face of adoption. The majority of children being adopted were no longer babies; rather they were older or disabled children with more complex needs. The panels certainly provided independent scrutiny of adoption agencies’ plans. Before the Adoption and Children Act 2002, an adoption agency could place a child with the prospective adopters without any intervention by the court. The court’s role was limited to making the adoption order which the prospective adopters, then as now, would apply for after the child had lived with them for at least 10 weeks. However, the 2002 Act changed how local authorities could place children for adoption. A major change was that they could no longer place a child for adoption unless they had the authority to place either as a result of parental consent or under a placement order made by the court. The courts are therefore involved much earlier in the process if the birth parents will not consent to placement for adoption or there are pending care proceedings. Having the court’s early agreement to the adoption plan and sorting out consent before the adoption order stage is better for children and their adoptive families. It reduces the risk that a court would not make an adoption order.
It is arguable that the function of the adoption panel covered by the amendment regulations could or should have been removed in December 2005 when placement orders came into force. It was at that point, when the change was made, that the element of duplication came into the system. A decision was not taken then, but we think that now is a sensible time to address it.
We have also touched on the issue of independent scrutiny. Noble Lords are rightly concerned that we should retain sufficient independent scrutiny of what is a momentous decision about a child’s life. We are confident that this will remain the case. There will be independent scrutiny in all cases, whether from the adoption panel or from the court. In all cases, the local authority decision-maker will hear the views of those with specialist expertise, for example, on medical or mental health issues, before reaching their decision.
We have also heard evidence today from some noble Lords who believe that the courts do not necessarily have the time, the expertise or the opportunity to reflect on children’s cases in the way that panels do. We think it is the case that the courts have the expertise they need. In making decisions on complex issues, they consider the information provided by experts. They do not simply rubber-stamp the local authority’s adoption plan or recommendation of the children’s guardian. Before the court can make a placement order, it must be satisfied either that the parents have consented or that the child’s welfare requires that parental consent should be dispensed with. The court must also be satisfied that the child is suffering or is likely to suffer significant harm. In making its decision, under the 2002 Act, the court must give paramount consideration to the child’s welfare throughout its life and must apply a list of criteria concerning the child’s welfare.
Therefore, the court will continue to play its vital role. The work of the social worker and the adoption team in drawing together and assessing the evidence will not change, nor will their work be added to because they no longer have to seek a recommendation by the adoption panel before decisions are made. We would argue that a simple system with no duplication where the local authority decision-maker is fully accountable for the recommendation that he or she puts forward to the court will function better. Good decisions will be taken quickly in the best interests of children.
I was asked a number of detailed questions. I shall do my best to respond to the main points, but if I fail to answer some of the more specific points, I will follow them up. There was a recurring theme of what the impact would be for local authorities and the burden on the decision-maker. I was asked by the noble and learned Baroness, Lady Butler-Sloss, what advice and support the department would give to local authorities. Alongside the regulations, we have published amended statutory guidance to help local authorities and other professionals understand how we expect the change to work in practice.