Children and Families Bill

Baroness Butler-Sloss Excerpts

Wednesday 9th October 2013 Grand Committee

Moved by

[Baroness Butler-Sloss]

11: Clause 2, page 1, line 15, at end insert—
“( ) In subsection (4)(d) (matters to which court or adoption agency must have regard), after “the child’s age, sex, background” insert “, religious persuasion, racial origin and cultural and linguistic background”.”

[Baroness Butler-Sloss (CB)]

My Lords, I have a considerable number of interests that I need to declare, not all of which I have to say I can remember. I am a governor of Coram, a patron of BAAF and of PAC, a patron—I think—of TACT and a patron of the Grandparents’ Association. I am very involved with Barnardo’s, the NSPCC and probably many others. I was also chairman of the pre-legislative and post-legislative scrutiny committees.

I strongly support the Government on the Bill, which in principle is an excellent one. There are, however, as one would always imagine, certain points that need both elucidation and change. Perhaps I may also add how delighted I am with the extra resources that have now been offered by the Government toward the adoption process and post-adoption support. There is an area about which I wish to speak in this debate and that is Clause 2 of the Bill, where it is intended to repeal Section 1(5) of the Adoption and Children Act 2002.

The opinion of the adoption committee that I chaired was that it was right to start with the removal of the words from subsection (5). This is an issue of ethnicity—an issue of race, culture, religion and language. In Clause 2, the Government are removing it entirely from the 2002 Act. That is a step too far. In paragraphs 57 to 83 of the adoption report, we said—putting it shortly—that we agreed that the Government were right to take it out as a separate subsection of the 2002 Act. It was given too great prominence. The evidence that we received as a committee was to the effect that there was a time when social workers elevated subsection (5) to inappropriate heights and therefore they were trying to match in colour in particular where it was not appropriate and moving children from very good families who were not of the same colour, race or background. However, we also had evidence, both from social workers and from the adoption agencies, that that problem had largely receded; it had been far less obvious in recent times and there was a counterdanger that, if it were taken out altogether, the social workers who cared too much about it when it was in would care equally when it was out. They would say, “Now that it’s not in, we have to disregard it. We must not consider race, ethnicity, language, religion or culture”. That is an equally important danger. We had evidence from the social workers and the agencies that there are social workers and other people out there who might take that view. It is a danger and one that must not be disregarded.

We also had informal evidence from children; we had a group of children who had been adopted and a group of children who were looked after who came to talk to me and one or two other Peers at the request of the then Children’s Rights Director. They were extremely interesting groups of children, ranging in age from about seven or eight to about 19. The young ones were very vocal, and at least two of them said to us that the question of ethnicity was extremely important to them, and they were worried about being placed—or the possibility of being placed—with someone who would not understand their background. To me, this was very powerful evidence from the horse’s mouth. I am very concerned about the Government keeping this clause in the Bill, when in fact we made it very clear in our report how concerned we, as a committee, were. Our proposal was that it should not be set out on its own, where it has too important an effect, but in among other matters that have to be considered under Section 1(4) of the 2002 Act.

If my amendment were accepted, Section 1(4)(d) of the Act would require the court or agency to have regard to, “the child’s age, sex, background, religious persuasion, racial origin and cultural and linguistic background and any of the child’s characteristics which the court or agency considers relevant”. It is neatly packaged into a number of other matters.

As I understand it, the Government are saying that “characteristics” includes that. It does in a sense but, unless you highlight the relevant points somewhere, there is a great danger that they will be overlooked. If you look at subsection (4) it is interesting to see the various points that are spelt out because a great many of them could be covered by one word or sentence, but the legislators of the day thought it necessary to explain some of them. I urge the Government to think very carefully about including, neatly packaged in subsection (4)(d), those words as part and parcel of a larger package of what the social workers should be looking at. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, our Amendment 12 is on the same issue and a similar wording to that moved so eloquently by the noble and learned Baroness, Lady Butler-Sloss. We very much support the argument that she put forward and the care with which the adoption Select Committee considered this matter and other issues.

As the noble and learned Baroness pointed out, under the Children Act 2002, the court and adoption agencies must under current legislation give due regard to a child’s religious persuasion, racial origin, culture and linguistic background when making decisions. The Bill removes that wording, but we continue to consider that these are important factors.

No one wants children to be disadvantaged by delays caused by the search for a perfect match, but the evidence of the adoption committee was that while there had been pockets of poor practice in the past, this is not a widespread problem. Indeed, it heard evidence from organisations such as Barnardo’s, which believed that the current legislation was adequate, and Coram, which also argued that, while there might have been a problem in the past, the situation was improving rapidly. The committee also identified that there were several other factors affecting the placement of black and minority ethnic children, including having fewer prospective adopters, the age of the children being put up for adoption and a failure of social workers to promote their availability. We are concerned that too much of the legislation being put forward on this issue is being based on anecdote and there is in fact a paucity of evidence that the wording in the legislation is the cause of black and minority ethnic children waiting longer for placements.

The general view was that the current legislative wording was not a problem per se. We therefore think that the Government have swung too far in the opposite direction by seeking to remove any reference to ethnicity, religion and culture. That is why we believe that putting these factors in the welfare checklist, along with other considerations, strikes the right and proportionate balance in addressing the issue. It would require agencies to have regard to these factors, but they would not be paramount.

In addition, any change in this area would be in direct contradiction to the UN Convention on the Rights of the Child and, in particular, Article 20 which states:

“Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language”.

We agree with this principle. It is important that parents understand the identity of their child and that they are able to help them feel at ease with that identity. We cannot be blind or neutral to these considerations. I very much take the point that was made in the earlier debates. We sometimes think that we are talking about babies, but we are not. We could be talking about young people—anything up to adolescents—who have a view about these things. That point was made very eloquently by the noble and learned Baroness in her introduction. They have an identity and they want that to be considered and expressed. There may have been overzealous social workers in the past, but there may also have been adoptions that failed because the complexities of a child’s identity were not properly addressed. It is important to get a balance.

The Government have argued that these issues are taken into account in the general welfare provisions in Clause 2, but in fact Clause 2 does not achieve that. It removes the express duty to give consideration to these factors, but we are concerned, in the same way as the noble and learned Baroness expressed, that withdrawing them completely will send a clear message to those involved in adoption that these factors are no longer to be considered.

In his response to the Select Committee on adoption report, the Children’s Minister argued that specifying ethnicity, language and so on would continue to place excessive emphasis on these factors and would therefore distort the way that they were applied. To be fair to the Minister, when we met him the other day he made a similar point. He said that in order to counterbalance the excessive emphasis, we had to go to the opposite extreme to ram the message home to local authorities and adoption agencies.

We do not consider that that is the right way forward. These are important and sensitive issues. Having the factors on the welfare checklist, balanced with other issues, would allow the flexibility needed to make an assessment of all the child’s needs in the proper context, which would achieve the Government’s stated aim. I look forward to other comments and the Minister’s response but we very much support the point made by the noble and learned Baroness in opening this debate and the eloquent arguments that were put in the adoption report in the first place.

--- Later in debate ---

[Lord Nash]

I am grateful to the noble Baroness for enabling me to clarify this point. I am not saying that it is the sole cause at all. It is one of a number of factors and we believe that our approach will be one element in helping to address this imbalance, which is leaving ethnic minority children short-changed.

Social workers will of course continue to pay considerable regard to ethnicity as they and the courts will be required to have regard to,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”,

as part of the welfare checklist. These will obviously include ethnicity. We do not accept that our approach means that this will no longer be considered at all, as the noble Baronesses, Lady Lister, Lady Hamwee and Lady Benjamin, suggest. Indeed, in her speech the noble Baroness, Lady Walmsley, referred specifically to background. “Background” and “characteristics” must include ethnicity. That is a matter of plain English.

There is unequivocal evidence about the negative impact on their development of delay in placing children for adoption. Children need to form attachments with one or two main carers to develop emotionally and physically. There is also clear evidence about delay caused by practitioners seeking a “perfect” ethnic match. Professor Elaine Farmer, in An Investigation of Family Finding and Matching in Adoption, found that of the BME children in the sample who experienced delay, attempts to find a family of similar ethnicity was a factor in delay for 70% of them. A study by Julie Selwyn—

[Baroness Butler-Sloss]

Forgive me for interrupting, but I wonder if I could have the date of Elaine Farmer’s report.

[Lord Nash]

The noble and learned Baroness will get that information in a second.

A study by Julie Selwyn, Pathways to Permanence for Black, Asian and Mixed Ethnicity Children found that “same race” placements often dominated the child permanence report over and above other needs and that some social workers were so pessimistic about finding ethnically matched adopters that there was little family finding. She said:

“We found that local authorities were much quicker at changing the decision away from adoption for minority ethnic children than they were for white children. There were a great number of minority ethnic children for whom no families were found and the decision was changed away from adoption”.

Whatever the child may want, would they rather not be adopted at all or adopted late in life so that they cannot form those early attachments that we all know are so important?

The answer to the noble and learned Baroness’s question is 2010.

Amending Section 1(5) of the Adoption and Children Act 2002 does not mean that ethnicity should not be considered. A child’s adoptive family needs to be able to meet the child’s needs throughout his childhood, having regard to all the factors provided for in Section 1(2) and 1(4), rather than simply matching his or her ethnic background or not matching at all. We have published draft regulations on this for your Lordships’ consideration.

We recognise that practice is very important. That is why we are developing a range of training materials and other tools to support the continuous professional development needs of children’s social workers, supervising social workers, team managers and independent reviewing officers working in fostering and adoption. This is part of the Government’s drive to ensure that social workers working in the care and adoption systems have the knowledge and skills they need to get decisions right and weigh the impact of delay appropriately in the decisions that they make about placements for children in care.

Of course, we need more adopters from all ethnicities. That is why we have allocated over £150 million this year to help adoption agencies respond to the pressing needs of children awaiting adoption and a further £16 million over the next two years to expand the sector.

The UN Convention on the Rights of the Child does not require children to be placed with someone who shares exactly the same ethnicity but someone who respects it. Section 1 of the Act, as amended, will not prevent this. Many children in our society live with natural parents who do not entirely share their ethnicity. I urge the noble and learned Baroness to withdraw her amendment.

[Baroness Butler-Sloss]

My Lords, I thank all those who have spoken on this amendment with a unanimity of support for it. I acknowledge, however, that Amendment 12 is more accurate since it recognises the different position of Wales, whereas my amendment was entirely devoted to the question of what was taken out and did not address the rest of the subsection, so I apologise for that. I think it should probably be Amendment 12 rather than Amendment 11.

The question of ethnicity, culture and so on is not just a question of black, white or brown. I happen to know Kenya quite well and there are 45 tribes and, I think, 47 languages there. It is totally different from Ghana or Nigeria, and so different from Jamaica. It would be very difficult to put a black child from Kenya with a black family from Jamaica. It would be much easier to put them with a white family. I have experienced the difficulties of a black family of whom the son, who is mixed race, is my godson, of whom I am extremely proud, and his black mother in the Cayman Islands had a very rough time because she came—according to the people in the Cayman Islands—who were black, from the trees. So when we are talking about ethnicity, we are not talking about black, white or brown, or indeed people from south-east Asia, whether they are Vietnamese, Malaysian or whatever it may be. What we are looking at is their cultural background, their ethnicity—and the ethnicity, as I say, of one black tribe. Indeed, those who come from certain parts of the United Kingdom are very different from other parts of the United Kingdom or other parts of Africa or Asia. It is important that we recognise that.

One of the most important points that were made in the speeches was about the issue of identity, and that follows very much from what I have just said. It was well put by the noble Baroness, Lady Young, to whom I am grateful. It is underlined by the United Nations Convention on the Rights of the Child. I very much liked what the noble Baroness, Lady Perry, said about respect. I am not quite sure how easy it would be to put into a list of what a judge must have regard to. I am not entirely sure whether we could require a judge to have regard to respect, but it was a very attractive idea and one that we should be looking at.

I take issue with the Minister: we are not suggesting for one moment that there should be a sameness of ethnicity, such that a Kenyan child would always have a Kenyan family. That is impossible and not even desirable. What is needed is an understanding by each of those who would wish to adopt of the cultural differences between them and the child whom they may adopt: the origins, language and culture of the child, as well as racial differences. These need to be understood and recognised, and that is the point of these two amendments.

If the Minister thinks that I am talking about same ethnicity—which is what he has just said—then I hope he will read what I have said in Hansard, both now and in my opening speech, because in no way did I intend that to be. There is a real danger, as has also been said, in replacing dogma with dogma—“I pick it up and adopt it with enthusiasm”—because that, I fear, is what this Government are proposing to do. Having come to the view, which I totally understand and with which I agree, that in the past there have been efforts to put a black child with a black family, regardless of their ethnicity, they are now saying that we must not consider it at all. That is a step too far, and I am very concerned about it. I am grateful to the Minister for saying that the Elaine Farmer report was from 2010, but we had evidence last year that that problem with social workers has largely disappeared.

If the amendment is not given the prominence of being in Section 1(5) but is neatly packaged away, as I have suggested, in subsection (4)(d), it will not get undue prominence. I must say respectfully that the Government are wrong in not listening to the unanimity of this Committee in what has been said today. I hope that they will go away and at ask at every level—not only at the level of junior Ministers but right to the top—whether we are really all wrong. I respectfully say that we are not. I shall bring back the amendment on Report and hope that everyone will support me on that occasion if the Government will not listen, but for the moment I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

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[Lord Storey (LD)]

My Lords, it really is important that we do what is best for the potentially adopted child or young person. If we consider this carefully, we can see where some—I would use the word “some”—local authorities have been very poor in this respect. That is in the amount of time taken, the lack of care and attention to detail and the way things are organised. Quite frankly, that is not good enough but it is a very small proportion of local authorities. As we have heard, 80% of placements are carried out by local authorities, which themselves recognise the need for changes to be made in how some of them operate. Many have been hallmarks of good practice and have been highly praised by the Government and the voluntary sector. So the notion that the Secretary of State is given the power to say that all local authorities should cease placement is concerning to me, and I wonder why it is there.

I am not sure that I agree with the noble Baroness, Lady Hughes, that this is some plot by the Government to privatise adoption—surely they would not—or push everything to the voluntary sector, because we know that the voluntary sector has said, “No, we don’t want to do that, and even if we did we wouldn’t be able to cope with it”. I am surprised that the noble Baroness would even consider such a daft notion. No, I think that this is about the Government. I well remember David Cameron, our Prime Minister, saying in the early days, “Look, I am concerned at the time that some potential adopters have to wait before all the paperwork and the processes are carried out”, and he was right to say that. This part of this wonderful Bill addresses that issue by saying, “Yes, we need to ensure that the amount of time taken is proportionate”.

Still, the notion that you give the Secretary of State—maybe Michael Gove’s successor in two, three or five years’ time—the power to come along with these draconian powers is quite concerning, and actually not in the best interests of children. I hope that, if we want to ensure changes, the Government will look at how we learn from best practice in local authorities and in the voluntary sector—not all the voluntary sector is perfect in this, of course; we think that because the tag is “voluntary sector”, they must be fantastic, but not all the voluntary sector is. We must learn best practice from the voluntary sector and from local authorities, and constantly lift the bar and learn and disseminate those best practices so that we do what is best for our children and young people.

[Baroness Butler-Sloss]

My Lords, I endorse what the noble Baroness, Lady Hamwee, said. I shall read out again one sentence from the conclusion of the adoption committee:

“We strongly encourage the Government to allow sufficient time for the sector to develop viable and achievable alternative proposals, before using the new power”.

Having said that, I have to say that I am not entirely opposed to the Government having this power. However, it should be a power of last resort, not a power that would be up front. The various amendments, if I may respectfully say so, are overly elaborate. I would have thought that it would be a good idea, if the Secretary of State had to give a direction, that such a direction gave the opportunity to the local authority to judicially review the Government if it thought that the direction was out of order under administrative law proposals. So I am not at all happy about these current amendments. I believe that the Government should have some power, but I do not like the way in which the power is framed at the moment. I hope that some sort of compromise might come on Report.

[Baroness Walmsley]

My Lords, for a number of reasons, I support my noble friends in their Amendment 13 and on clause stand part, failing the amendment—or something—getting through. I think that this is an excellent Bill in many ways, and I am very proud of it and welcome it. It would be a pity if it were spoilt by one particular little bit that, if implemented, would result in complete chaos in the system.

If new Section 3A(3)(c) were implemented, there would be complete chaos in the system and increased delays in the time that it took for a child to be adopted, because the voluntary sector simply does not have the capacity to take up the other 80%, and could not do so in the foreseeable future either. The Government are going too far too fast, particularly in the light of the changes that are currently being made in the adoption system. I would put a caveat next to that comment, because I think that we all believe that an extra month taken to find the “forever family” for a child waiting on the adoption list is a month too long. We do not want to increase delays; indeed, we want to shorten the period as much as possible, while at the same time getting it right. In the light of the fact that so many changes are taking place—local authorities are working together and the Government have already put changes in place—the clause as it stands should not be implemented until those changes have been allowed a reasonable amount of time to bed in. Subsections (3)(b) and (c) need to be taken out.

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[Baroness Butler-Sloss]

My Lords, I put my name to this amendment. In paragraph 274 of our post-legislative scrutiny committee we said:

“We believe that the exclusion of descendants of adopted persons from the definition of relatives in section 98 of the Adoption and Children Act 2002 creates an unfair anomaly in the legislation. This can be a cause of significant distress”.

Indeed, we had evidence to that effect. We continued:

“We recommend that the Government amend section 98 of the Act to bring within its scope the direct descendants of adopted persons. The Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005 should be amended accordingly”.

As the noble Baroness, Lady Hamwee, has already said, there are a number of people in respect of whom this small but important amendment really matters. It came to my attention through a friend of mine who is a lawyer—he is actually present in this Room. He wrote to me including the letter from the lady to whom the noble Baroness has referred. There are others out there; it may be that there will be a number of people who will benefit from this, and we know there are. There may be cost implications, except that they will be likely to pay so it would be their cost.

Perhaps more importantly, this is an anomaly. Other people out there who are related to those who are adopted, and to birth parents and so on, have the right to this information. The issue is not whether it is sensitive or whether people should know. It is why so many groups should be allowed to find out and this group not be allowed to find out. The amendment cuts through this sensitivity and complexity. There is actually no complexity; it is an anomaly which requires to be put right. For the Government to hide behind reasons of sensitivity and complexity when all the information is there anyway for everybody else seems at the very least disingenuous. I strongly support the amendment.

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[Lord Nash]

I thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for bringing this important matter to the Government’s attention, both earlier this year through the report of the Lords Select Committee on Adoption Legislation and through this proposed clause.

I entirely understand why the descendants of adopted people may want to find out more about their biological heritage, particularly where there may be a hereditary medical condition. The Government are open to the possibility of reform in this area, but we believe that more detailed thought is needed about the implications and practicalities of any legislative change. For example, we must think carefully about how more information might be provided to descendants, and we need to balance this against the rights and wishes of the adopted adults themselves and their birth families.

This is a complex and sensitive area which needs careful consideration before any change to legislation is considered. That is why the Government are exploring with the Law Commission whether this issue might be included within a possible project as part of the commission’s 12th programme of law reform.

The amendment would enable descendants of an adopted person to find out about the adopted person’s background. It applies to those adopted before commencement of the 2002 Act. Such adoptions were carried out privately and secretly, with very little information shared with the adopted child or his or her birth parents. If a mother, who may never have told anyone about an adoption, was approached out of the blue by her son asking about his adoption, that could have a devastating effect on the individual and the whole family.

We fully appreciate the wishes of descendents and there will be examples—

[Baroness Butler-Sloss]

I apologise to the Minister. Under this proposal, there is no suggestion that there should be any direct relationship between the person seeking the information and the person who has been adopted. It would be done through an intermediary, which is the whole purpose. I urge the Minister not to go down that line because that is not what we are asking for.

[Lord Nash]

I assure the noble and learned Baroness, Lady Butler-Sloss, that we are not seeking to be disingenuous about this and we do regard the issues as complicated. My noble friend Lady Hamwee asked what evidence the Government have to suggest that if we make this provision it could open the floodgates or that the new clause would lead to unwelcome contact. The answer is that we do not have any evidence, which is why we would like the Law Commission to consider it and are prepared to provide funds. I hope that I have provided sufficient reassurance on the amendment and I therefore urge the noble Baroness to withdraw her amendment.