Children and Families Bill

Baroness Hughes of Stretford Excerpts

Wednesday 9th October 2013 Grand Committee

Moved by

[Baroness Hughes of Stretford]

2: Clause 1, line 4, leave out “C” and insert “a child who is in the care of the authority”

[Baroness Hughes of Stretford (Lab)]

My Lords, may I welcome the Minister to the first meeting of his first Bill Committee? I thank him for the opportunity to discuss some of these issues in advance. I hope that all of us together can build on the commitments that we made at Second Reading to make these provisions as good as possible because they affect some of the most vulnerable children.

Part 1, as we know, concerns adoption. Clause 1 would enable agencies, as the Minister said, to place a child in a fostering for adoption placement. This would apply to any child coming into care for whom a family placement is not possible and before any decision to move towards adoption has been approved by the adoption panel or the court through a placement order. We certainly share the Government’s concern that where adoption is the best option for a child, any delay in matching and placing the child should be reduced to a minimum. We share the Government’s overall intention. I am also pleased that the Government have listened to the debate on kinship care and brought forward Amendment 1 today, which addresses that issue.

In introducing the amendments from the Opposition Front Bench, I would point out that some of the amendments were placed in respect of the original Clause 1. Those are Amendments 4, 6, 8 and 9. Since then, we have seen the Government’s Amendment 1 and we have tabled further amendments, Amendments 2, 3 and 10. It is to those more recent amendments that I am predominantly speaking at the moment.

While welcoming the Government’s amendment, I still think there needs to be further improvement to the measures proposed in two important respects. The first is kinship care, by which I mean care by a relative, friend or other person connected with the child, as defined by Section 22C(6)(a) of the Children Act 1989. The requirement in government Amendment 1 to consider kinship care as a first step appears to be—I will listen carefully to what the Minister says about this—a weaker prescription than that in subsection (7) of the current legislation, which requires local authorities not just to consider, but to give preference to, kinship placements where they are possible. Furthermore, Amendment 1 still disapplies subsections (7) to (9) in their entirety. These are requirements in the current legislation to place the child near their home, not to disrupt education or training, to enable siblings to live together, to accommodate any disability the child has and to be within the local authority’s area. We think that those are all sensible requirements that enhance the stability of the placement for the child. Therefore, our Amendment 3 simultaneously requires that stronger requirement on kinship care to take preference and retains those other criteria for placement, including keeping siblings together.

However, even with the current legislation, many people share a strong belief that local authorities could do more to explore the potential for kinship care, so Amendment 10 proposes the introduction of pre-proceedings work and family group conferences, designed to ensure that, at an early stage and in a systematic way, the family is encouraged to identify possibilities for the child within the wider family network.

It is easy to understand why family members might not initially come forward at an early stage to suggest options without such structures and support. They might be concerned not to upset the parents who are—obviously, by definition—their relatives. Many often feel, certainly, that they have to wait for the decision of the court as to whether the child is free for adoption, but by then it is too late. Therefore, Amendment 10 would build into the process an early examination under professional guidance of kinship care possibilities.

Our second concern about the clause, as it would be if amended by government Amendment 1, is about the extension of fostering for adoption placements potentially for all children coming into care through whatever route. As currently formulated, Amendment 1 would require the local authority to consider a fostering for adoption placement for every child for whom kinship care was not possible.

I am very much in favour, as we all are, of reducing delay in achieving quality alternative permanent placements for children who need them. I have supported the development of concurrent planning adoption, which is the template for fostering for adoption placements. Concurrent placement has undoubtedly been beneficial for the children placed early on with foster carers approved to adopt. However, we need to be clear that concurrent planning has so far been used only for babies under two born into families where it is already well known that the parents have serious and chronic problems, such as long-standing drug addiction, which interfere with their ability to parent, and who have often already had to relinquish previous children.

In the pilot run by Thomas Coram that the Minister mentioned, 61% of the children were referred for concurrent planning placement at or at about birth and 95% were under one year old, so this is a very special group. In the 11 years of that pilot, only 59 children were placed by this method, so carefully selected are the children for very good reasons. Of those 59, two were returned to the birth family and 57 were adopted, with their original foster carers having been approved for adoption, and they had very good outcomes. However, opening up to the whole diverse range of children coming into care a model conceived specifically for a very small and tightly drawn group of babies seems to be dubious, not least because there is no evidence base as to the possible outcomes for children and families with different characteristics, particularly for older children.

Most particularly, the requirement to consider a fostering for adoption placement would apply also to children placed into care voluntarily by their parents under Section 29 of the Children Act. By definition, these parents have not relinquished their children for adoption, nor have the local authorities applied for a care order. I do not think it is appropriate even to consider placing such children on a pathway to adoption without the fully informed and independently witnessed consent of the parents, as is required by current legislation. That is why our Amendment 2 would make it clear that the requirement to consider a fostering for adoption placement would apply only to children for whom the local authority had a care order. Indeed, I think that the unintended consequences of not exempting from this requirement children who come into care voluntarily may be to deter parents in the future from approaching local authorities with a view to voluntarily placing a child into care when they are in difficulty.

Briefly, there are a number of other issues on which we should like to hear the Minister’s views before deciding whether the Bill might need further amendment on Report. The main issue is that there is still a lack of clarity, including in the draft guidance that the Minister helpfully issued last week, as to when in the process a local authority may be judged to be considering adoption. We welcome the intention outlined in the guidance to require the director of children’s services to approve a decision to use a fostering for adoption placement and to inform parents and prospective adopters in writing. However, as the draft guidance makes very clear, the local authority will be required to consider a fostering for adoption placement even when the first priority for that child is to be rehabilitated with the birth parents. I think that that is very questionable. When will considering adoption come into play? The guidance says that this will vary from case to case. That is not nearly tight enough and a defined trigger may be needed, possibly as suggested in the amendment tabled by the noble Baroness, Lady Hamwee.

Secondly, there is very little emphasis in the guidance on matching. Thinking about fostering for adoption placements, that is a very important issue. It is worth noting that under the current arrangements it is very often during the fostering phase that detailed knowledge about the child comes to light with professional and expert foster carers. They may learn additional things about a child’s disability or behavioural problems, or the child may disclose experiences to the foster carers that were not previously known, and all this goes into the matching process to try to ensure that the adoptive placement, when it occurs, is as secure as possible. I am concerned that in a fostering for adoption placement, outside of the narrow range of the babies I talked about, of whom knowledge is probably pretty full, issues may come to light during that placement that deter those potential adopters currently fostering a child from proceeding with the placement any further because of the nature of the issues that come to light.

Finally, there is an important issue of timely planning for permanency across all alternative permanent options and I regret that the Bill as it stands does not say very much about those other options. However, we look forward to hearing the Minister’s response on these issues. I beg to move

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I hope that the noble Baronesses will feel that these additional requirements address their concerns. I therefore urge them not to press their amendments. That is all I shall say at the moment. Other points, including those made by the noble Earl, Lord Listowel, about the strength of retention of child social workers. I will write to noble Lords on all other matters.

[Baroness Hughes of Stretford]

I thank all noble Lords for their contributions to the debate on this important subject, many of which were contributions from positions of considerable expertise and experience in this field, working with children, families and foster carers, and on adoptions. I will not rehearse those contributions as Members of the Committee have heard them. In concluding this debate, perhaps I may draw some threads from them.

I am very grateful for the support of the noble Baronesses, Lady Hamwee and Lady Walmsley, and my noble friends Lady Massey and Lord Ponsonby, particularly their support for Amendment 10. The noble Baroness, Lady Hamwee, asked me some specific questions about the phrase,

“unless emergency action is required”.

That is just a reference to the fact that in situations of urgent child protection it may not be possible to make these offers. She also asked me a technical question about the implications for Section 47 of the Children Act, and I would like to get back to her on that if I may.

However, I think all those contributions testify to the importance of trying to maximise the possibility of kinship care and of recognising that, while at the moment the law requires that local authorities give preference to such an option, the reality is that—often for very good reasons, as I and others outlined—those possibilities often become evident, if at all, too late in the judicial process to act upon them. That is why Amendment 10 specifies pre-proceedings work. It is important that that is done in a structured way under the stewardship of an experienced professional. It involves handling very difficult issues within the family, and family group conferencing has been proven to be the safest way to do that.

I would say to the Minister that Amendment 10 does not in fact make offering those pre-proceedings activities and family group conferencing compulsory; it would simply require local authorities to offer them in those circumstances. Therefore, it does not put a compulsion on that issue at all.

While we are on kinship care, the Minister—and perhaps he could write to me about this—did not clarify whether the Government’s wording in the amendment is a weaker prescription for local authorities than the current legislation; that is, whether the requirement for local authorities to “consider” the kinship care option is weaker than “giving preference to”, as specified in Section 22C(6)(a) of the Children Act 1989. Perhaps he could clarify for the Committee in writing whether he regards the current formulation in Amendment 1 as a weaker prescription, because that was one of our most important points.

I turn to the points about fostering for adoption. Again, I am grateful for the contributions from, in particular, the noble Earl, Lord Listowel, my noble friend Lady Armstrong and the noble Baroness, Lady Howarth. They speak from great experience. My noble friend Lady Armstrong made a point, which echoed my own, about concurrent planning. At the moment, it is restricted. You see adverts in newspapers and in the trade press from local authorities offering concurrent planning, and it is all for babies aged nought to two. Coram has a restriction of age two. In fact, the evidence that I cited showed that in practice 95% of babies who have been referred and placed through that route have been under one year old. This is not a situation in which one can imagine that a seven or eight year-old or a teenager will present the same issues. A great deal is already known about the babies who have been placed by that route. They are very young, so they are unlikely to have a lot of negative experiences as older children may have done, and there is therefore a great deal of certainty from the outset about the child whom the fostering for adoption parents are taking on. That would not be the case with older children or children who are known to have had difficult experiences.

The Minister responded to the question of whether we should have a specific trigger for fostering for adoption placements. In relation to that, one issue that we have not touched on is: what is the perspective of the foster carer approved to adopt in all this? Certainly at the moment, the foster carer approved to adopt is hoping for an adoption.

When it comes to placing children, a direction of travel and a change of culture are being signalled here. Putting all children on a pathway for potential adoption is not appropriate. It would be putting children on a pathway to adoption; that is what the adopters themselves hope will be the outcome of this. As my noble friend Lady Armstrong and the noble Baroness, Lady Howarth, have said, once cases get to court, judges will be very reluctant to disrupt a situation that they feel a child has become accustomed to and embedded in, where they have started to develop relationships.

Secondly, the Minister replied to the comment, “What does ‘consider’ mean?”, by rehearsing the arguments in the draft guidance that it can mean different things to different local authorities in relation to different children. Another way of saying that is that it can mean almost anything at any time. I worry about that, because for the local authority to have to consider a fostering adoption placement for all children, including those going into care voluntarily, is a very serious change. He said that adoption might be one of several options; there might be a list of options and adoption might be on it. Why, then, if there is a list of options, is fostering for adoption the one that the local authority has to consider first? That is the effect of the Government’s amendment.

The comment that concerned me most was what the Minister said about matching. He said—I wrote this down and I hope I have got it right—that in a fostering for adoption placement, the local authority is not required to consider matching in the same way as it does for adoption. If the fostering for adoption placement looks like it might proceed to adoption, then it will undertake the formal matching process—by which time the child will have been there for perhaps six, nine or 18 months. Given that this is supposed to be a device to minimise disruption to children and to place them early with parents with whom they may remain if they cannot return home, that seems to be totally counterproductive. I urge the Minister to think again, certainly in framing the guidance, about what is said about matching. Clearly, if children can stay in a placement that started out as fostering for adoption, then matching needs to take place right at the outset, otherwise there is a real danger that children may then be moved.

I do not feel that I can say we have had a lot of assurance from the Minister on the points raised so far. I hope that he will reflect further on the points that Members have made and on the amendments put forward, and will come back to us before Report with some further thoughts. We will be thinking about what we may want to bring forward on Report ourselves, and it may be that we can come to some consensual agreement on some of these issues. With that, I beg leave to withdraw the amendment.

Amendment 2 (to Amendment 1) withdrawn.

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[Baroness Hughes of Stretford]

My Lords, I shall speak to Amendments 14 to 17 in my name in relation to Clause 3, which, as we have heard, grants the Secretary of State a new power to direct local authorities to outsource their adopter recruitment services to another local authority or to a registered adoption agency by amending the relevant part of the Adoption and Children Act 2002. We understand that the driver for the Government seeking these powers is to tackle the shortage of people approved to adopt. Certainly, we share this starting point with the Government.

I listened with great interest to the points made by the noble Baroness, Lady Hamwee, and it is clear that there is deep concern about these provisions and where they might be taking adopter recruitment services in the future. For me, that is the key issue, as I will explain. I have no disagreement in principle with the power for the Secretary of State to intervene in individual underperforming local authorities as in subsection (3)(a) of new Section 3A under Clause 3. As a Minister, I issued many such directions. Indeed, my first point is that there already are substantial powers of intervention, including the ability of the Government to outsource services when local authorities are underperforming. Perhaps the Minister will explain why these powers in subsection (3)(a) are necessary.

However, it is difficult to see how intervening in an individual local authority can solve or address the wider problem of the national shortage of potential adopters, which brings me to the powers under subsection (3)(b) and (3)(c) and where our concerns lie. Those powers would give the Secretary of State the power to remove responsibility for adopter recruitment either from entire categories of local authorities or from all local authorities at a stroke completely.

There are both practical reasons and reasons of principle why those two powers are problematic. First, on the practical reasons, local authorities currently recruit and approve about 80% of adopters. Moving many or all local authorities from this task would seriously compromise the adoption system when there is already an acknowledged shortage of adopters.

Secondly, as the noble Baroness, Lady Hamwee, elegantly pointed out, the voluntary and not-for-profit sector has made it clear that it does not have the capacity to take on the recruitment of the numbers of adopters that would be needed. The third reason is very important. Given that local authorities would retain responsibility for the placement of children and for seeing them through to adoption, it seems to me to be wholly undesirable that they should have no stake in the adopter recruitment process. We actually want local authorities to be more willing to use adopters approved by other agencies. This is more likely to happen if local authorities retain some responsibility for recruitment and are still part of the adoption system so there are some strong, practical reasons that I would like the Minister to address.

In discussion with the Minister this week, he said that the problem of adopter shortage was not in any case primarily one of underperformance by individual local authorities. In his view this was system failure at the national level, particularly because of the disincentives for local authorities to recruit more adopters than they need for their own individual populations and the reluctance, as he perceived it, of agencies to work collaboratively. Again, there have been really positive moves in that direction, as the noble Baroness, Lady Hamwee, pointed out, albeit perhaps recently. That might be so: it might be system failure, as the Minister said, and if the Government wish to review adopter recruitment and propose a radically different system, they are of course entirely free to do so. But if the Government wish to come forward with a new system that would take responsibility for adopter recruitment away from local authorities and give it to some new or different kind of agency, I put it to the Minister that they should come to Parliament with those proposals now for wider scrutiny and debate.

My objections to subsections (3)(b) and (3)(c) are therefore fundamentally ones of principle. It seems quite wrong to go partway along that path to pave the way for wholesale outsourcing or privatisation of adopter recruitment through the negative resolution procedure set out here without spelling out for Members what the endgame here is. I asked the Minister whether he had a vision of where he would like these services to end up and he said no, he did not. However, I cannot see the point of the power in subsection (3)(c) unless the Government have at least some desire, if not the intention, to move towards providing the recruitment of adopter services in a very different way.

In our view, the powers in subsections (3)(b) and (3)(c) are a step too far unless the Government set out their further vision. Our Amendment 14 would delete them from the clause. Amendments 15, 16 and 17 would address the issues that the noble Baroness, Lady Hamwee, raised were the Government to retain the ability simply to intervene in an individual authority by instituting: that it should be by the affirmative resolution procedure; for the Secretary of State to give reasons for direction and to allow the authority to ask for a review; and for the Secretary of State to revoke any direction should he desire so. Amendment 17 would address the point that the direction should be based on the quality or performance of the local authority in providing these services.

With those amendments, this would be a reasonable and proportionate mechanism for the Government to use when they believe a local authority could do much better at adopter recruitment. They would take away the possibility that the Government could slide through an entirely new system on the back of a negative resolution procedure in relation to subsection (3)(c).

[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.

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[Lord Nash]

I begin with the proposal to remove the clause, but most of what I will say is also relevant to all the amendments. I think that we would all agree that we have an undoubted problem in the narrow but important function of recruiting, assessing and approving a sufficient number of prospective adopters. The statistics are stark. As I have already said, the average length of time that it takes for a child to be adopted from entering the care system is two years and seven months, and of course this conceals many children who do not get adopted.

My noble friend Lord Storey said that there is poor performance by local authorities in only a minority of cases, but I respectfully suggest that the figure of two years and seven months denies that. However, I agree with him that there is good practice: in West Berkshire, for instance, the figure is a year and a month. I question why many if not all local authorities cannot do the same.

At the end of March this year, there were 6,000 children with placement orders waiting to move in with a permanent family. This is 15% higher than a year previously. When compared with the 3,980 children adopted from care last year, one can see that this is a very significant backlog. Indeed, one cannot conclude from this backlog anything other than that the system is broken and we are facing a real crisis.

In order to find families for all the children waiting to be adopted, we have estimated that we would need around 2,000 more adopters than are currently approved and waiting to be matched. We would then need at least a further 700 additional adopters each year to meet the growing demand from children waiting. Ofsted data tell us that in the year ending March 2012 just over 25,000 enquiries about becoming an adopter were received, but these resulted in only around 4,000 applications to become an adopter—a 16% conversion rate, which I suggest is very low.

The size of the recruitment gap requires us to take radical and immediate action to resolve the underlying problems within the system. These were set out in our January publication, Further Action on Adoption. We currently have around 175 adoption agencies, many operating at too small a scale to be efficient, yet they have no incentive to expand and meet the needs of children outside their local area. Even worse, some local authorities turn away prospective adopters because they do not need them themselves.

A further problem is that, while some local authorities work in constructive partnerships with voluntary adoption agencies, too many commission from them only as a last resort. In large part, this is a consequence of local authorities acting as both a provider and commissioner of adoption services. By this, I mean that they are trying to find or commission adoptive parents on behalf of the child while simultaneously trying to recruit or provide those same parents. There are also issues around the level of fees that are paid to voluntary adoption agencies.

These underlying problems have resulted in a system that fails us in national terms; a system that is unable to make best use of the national supply of potential adopters or respond effectively to the needs of vulnerable children waiting for a loving home and a system that provides no incentives to individual organisations to address a national shortage of adopters. These problems are not the fault of the individual adoption agencies concerned. Indeed, many are doing their best to rise to the challenge and we know that there are some good examples of partnership working between different agencies:

Harrow, Kent and Cambridgeshire, for example, have all contracted elements of their adoption service to the voluntary adoption agency Coram. Oxfordshire has brought in the Core Assets Group to run its adopter assessment process. Three boroughs in London—Kensington and Chelsea, Westminster and Hammersmith and Fulham—and three unitary authorities in the north-west, Warrington, Wigan and St Helens, have merged their adoption services in order to save money while improving quality.

The problems result from the flawed way in which the current system is structured and operates. We therefore require a structural solution that tackles these systemic problems; a solution that incentivises and enables the recruitment of a far greater number of adoptive parents. Clause 3 provides for such a solution.

[Baroness Hughes of Stretford]

I have been accused of being rather unkind to the Minister in thinking that there might be some plans already as to how to do that. He said that this needs a structural solution to address a national problem and that Clause 3 of itself is that solution. In fact, Clause 3 of itself is not that solution. Clause 3 would pave the way for a solution but we do not yet know what that solution and change of policy might be, as the noble Lord said. Can the Minister indicate the kind of solution that Clause 3 would pave the way for so that we might have some indication of the Government's thinking?

[Lord Nash]

Yes, I did say that Clause 3 provides for such a solution. It is not a solution in itself. As I said to the noble Baroness earlier this week, there is no dark plan and no end game. The fact is that the system is working poorly and erratically. There is good practice and there is clearly bad practice. Adopter recruitment could clearly be done more efficiently and on a greater scale, which may involve working more closely together. Of course, the sector may take time to develop and recognise that, which is why we have funded voluntary adoption agencies substantially in order to stimulate them. The power is necessary to stimulate change and I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for supporting the Government in having a power.

Turning to Amendments 14, 16 and 17, Clause 3 is not therefore intended to tackle cases of poor performance or service failure within individual local authorities. Our recruitment problem is not the result of individual failure and, if it was, the Secretary of State already has substantial powers to intervene. We therefore do not consider that the amendments, which would effectively use Clause 3 as an additional intervention power for a small number of local authorities, are necessary.

I am aware that the structural change proposed under Clause 3 would be substantial. I also acknowledge the view of the Delegated Powers and Regulatory Reform Committee concerning the delegation of a power of such scope. With respect to all the amendments, and with particular reference to Amendments 13 and 15, I would therefore like to reassure the Committee that I am keen to continue to listen to views as to how this power could best be used. In due course, the Government will then bring forward their own amendment which is likely to provide greater clarity about the process by which the power might be exercised.

When I write to Members of the Committee following this debate, I will provide a summary of the many steps that the Government have taken to support voluntary adoption agencies, as the noble Earl, Lord Listowel, requested. Briefly, we have invested £150 million in local authorities through the adoption reform grant and recently announced a £16 million boost package for voluntary adoption agencies which will help to recruit and approve more adopters. In terms of stimulating the system generally, as the Committee will know, we have introduced the national gateway. I therefore urge my noble friends Lady Hamwee, Lady Walmsley and Lord Storey, and the noble Baronesses, Lady Hughes, Lady Jones and Lady O’Loan, not to press their amendments.