Children and Families Bill

Baroness Walmsley Excerpts

Wednesday 9th October 2013 Grand Committee

[Baroness Hamwee (LD)]

My Lords, we have two amendments in this group. As we are starting in Committee, I begin by declaring an interest as a patron of PAC, which deals with both pre and post-adoption support and care and the Intercountry Adoption Centre. I am joint president of London Councils—of course, local authorities have adoption responsibilities—and I have other interests that are well in the past. I have been informed by the directorship of an adoption agency, membership of a local authority adoption panel and membership of the legal group of the British Association for Adoption and Fostering.

I enjoyed both the subject and the process of serving on the Select Committee on Adoption Legislation under the chairmanship of the noble and learned Baroness, Lady Butler-Sloss. Fostering for adoption is a concept much supported by members of that committee, although we all recognised that it may be of quite limited application. The Select Committee urged the Government to widen the scope of the duty to include it in options for all children for whom adoption is the permanent plan. I appreciate that that is why the Government made an alteration to the original draft clauses, although not the alterations that the Select Committee suggested.

I appreciate that my Amendments 5 and 7 would be pre-empted if the Committee accepts government Amendment 1. However—and I say this for clarity and not too aggressively—if we are not persuaded by the response to the other points raised in this debate, I for one will want to return to the matter on Report to deal with the equivalent issues in the clause that, if we accept the government amendment, will then have been amended.

My first amendment is to probe both the meaning and the weight of the term “consider”. It is not a technical term. When I first saw it, thinking very much as a non-professional, I wondered where on a spectrum of thinking about something—from something casually crossing one’s conscience all the way to making a decision—“consider” comes in terms of considering adoption. I then discovered that many professionals were also concerned. BAAF and the Family Rights Group, endorsed by other organisations, say that there is a wide spectrum between adoption considered as one possibility when all options are open and a formal decision that a child should be placed for adoption. Things follow automatically, step-by-step, when one is in the formal process. This suggestion is made that unless we link this provision to the statutory review process, we are not centring it properly as part of that step-by-step sequence. In defining a more precise trigger point, they suggest it when the local authority considers that adoption is the likely permanence plan. I accept that I have failed to bite the bullet by not offering an alternative.

I wondered whether I was fussing unnecessarily because if one looks at new subsection (9A)(a) of Section 22C, all that will be required is for the local authority to consider placing the child with a foster parent approved as an adopter. However, and this is very central to my point, I worry that a lack of clarity or agreement across the sector as to what is meant by “considering for adoption” may lead to inconsistencies in practice between agencies. That cannot be a good thing.

Given that the Government’s amendment proposes new subsection (9ZA)(b), I am even more unclear now about the local authority being satisfied that the child should be placed for adoption. Why is paragraph (b) required if being satisfied, in the terms set out there, is different from “considering adoption” in paragraph (a)? I hope that in reply the Minister can explain the distinction between the two paragraphs in the first part of his Amendment 1.

Amendment 7 would require the matching process to have been carried out; the noble Baroness referred to this and to issues coming to light which are not necessarily initially obvious. It is a very careful process which should be reflected in the legislation. I was not reassured by what the Minister said in the Commons about this. He said that fostering for adoption should,

“be used where the local authority has not … decided”,

on a “permanence option” and that it is,

“not … appropriate … formally to match the child and carers”.—[Official Report, Commons, Children and Families Bill Committee, 12/3/13; cols. 183-195.]

He also said it would be “premature” because a fostering for adoption placement was generally before adoption was the definitive plan. If permanence is the objective, I do not follow the logic of that.

There is of course an important place for guidance in all this. I thank the Minister for distributing the indicative guidance but it does not seem to deal with this. Surely it should at least be included as an issue, even if one does not go as far as the amendments that I have tabled. What a lot of this comes down to is taking all reasonable steps to avoid placing a child in a situation where disruption or a breakdown of the placement has not been considered adequately.

I know that my noble friend Lady Walmsley will say a word about Amendment 10. I absolutely take the point about work with families being difficult. On the drafting—this is a detail—I was not sure that it was necessary for an emergency to preclude the steps which are spelt out. I also wonder how this would relate to Section 47(5)(a) of the 1989 Act, which requires the ascertainment of a child’s wishes and feelings. I suspect that everything else in that section is subject to that anyway but perhaps the noble Baroness might say a word about that.

I finish by putting on record my huge admiration—and not just mine—for both foster parents and adopters. Above all, to be prepared to foster with a view to adoption, and therefore necessarily with a view also to not adopting, is particularly admirable. In the somewhat technical approach that we may have to take to some of this, it is appropriate that we should not lose sight of the enormous contribution that these families, which are sometimes a family of one, will make.

[Baroness Walmsley (LD)]

My Lords, I want to add a couple of comments to those of my noble friend Lady Hamwee, with whose words I totally concur. I have a great deal of sympathy with Amendment 10, and I urge the Minister to consider it and perhaps come back to us at a later stage with some further thoughts about it.

When we are considering all this, we need to bear in mind that adoption is not the only form of permanence, and we must not lose sight of that fact. It is not appropriate for many children. When it comes to considering placement with family and friends, on whatever basis, in my view you cannot do that early enough. A briefing that I received from the College of Social Work pointed out to me—I had not realised this before—that there is currently no duty on a local authority to consider family and friends before the child is taken into care. Given the 26-week limit that we are about to bring in, it would be very wise for the Minister to consider this amendment. It would mean that family and friends were considered even before the child was taken into care, and the concern that people have raised, that 26 weeks may not give family and friends time to come forward, would be averted if family and friends were being considered even before the child went into care. This amendment has merit, and I hope that the Minister will consider it.

[Baroness Massey of Darwen (Lab)]

My Lords, I have two brief points. First, like the noble Baroness, Lady Hamwee, I am concerned about the issue of consideration, and I would like to know at what stage this consideration kicks in.

Secondly, I have the greatest respect and admiration for family and friends carers, who do such a remarkable job, sometimes in very difficult conditions, and I take on board the issue that the noble Baroness, Lady Walmsley, raised about timing. I am curious about the dropping of the preference for looking first at family and friends carers as appropriate to a child. I am surprised that that is not being strongly supported by the Government. I believe that something like 86% of kinship care proceedings are initiated by the prospective kinship carers themselves, not by social workers, and surely that is quite the wrong way round.

I am also surprised that the Government do not seem to consider the costs of kinship care and care by friends. I believe that a foster care placement costs something like £40,000, while the average cost of care proceedings is more than £25,000. I hope that the Government will look again at the whole issue of placing family and friends care at the head of the proposals. I am aware that it is not always appropriate and I accept that, but to have dropped the idea of preference, if appropriate, is a mistake.

--- Later in debate ---

[Baroness Walmsley]

My Lords, I would like to make two points. First, I agree with the noble Baronesses, Lady Lister and Lady Jones, about the danger of transgressing the UN Convention on the Rights of the Child. I will address the point made about respect by the noble Baroness, Lady Perry, when I come to my second point.

I am going to give the Committee an anecdote. I am sorry, but this is why I am so passionate about believing that the well balanced solution of the noble and learned Baroness, Lady Butler-Sloss, to the perceived problem is much better than taking the issue out altogether. It is the fact that my son and his wife, in addition to having their own two white, blond boys, have adopted a Chinese daughter. Cathryn is a wonderful little girl and she is much loved by the whole extended family. For the past seven years, she has been very successfully adopted and I very much hope that it continues that way. Of course, when going out in public with her family she might as well have a big sign on her forehead saying, “I am adopted”, because she clearly looks different. It was so important that her adoptive parents were sensitive to difference and its importance, and to the importance of cultural, racial and ethnic identity. They are approaching the adoption of their little Chinese daughter with all that in mind. That is why I agree with the noble Baroness, Lady Perry, that we must ensure that where there is transracial or transethnic adoption, the matching is right. That is more important than the child and the parents having the same skin colour.

I would also say to the Committee that ethnicity really matters; I absolutely agree with the noble Baroness, Lady Young. That is why it is important that you find the right adoptive family. If the race, culture and ethnicity are different, they have to understand, be sensitive to and take account of that as they help the child to develop into a fully fledged grown-up with an understanding of their ethnic and cultural background. To throw it out altogether puts the Government in great danger of the pendulum swinging in the opposite direction and no account being taken at all of the difference in ethnicity. If they did that, they would be in danger of finding adoptive families who, although they were very well intentioned, did not have that sensitivity to difference and to the importance of the cultural identity of the child.

That is so important when you have a transnational, transracial, transcultural or transethnic adoption. The fact is that we are going to have some of those because there is a mismatch between the pool of children of ethnic majorities who are waiting for adoption and the ethnicity of families who are prepared to adopt them. Until we get equal numbers in those two pools, we will have transracial and transethnic adoptions. However, the important thing for the success of the adoption is that the matching is right. The danger is that if you take out reference altogether instead of putting it in the checklist, as has been so sensibly suggested, you will get a mismatch and have unsuccessful adoptions. Alternatively, the adoption will complete until the child is an adult but that adult will be damaged by the lack of consideration having been given to their background.

This is terribly important. I can tell your Lordships that it can be very happy and successful—because I have personal experience of that—and I very much recommend that it happens where a child needs a loving family. Those considerations really matter, though, and we must not throw the baby out with the bathwater.

[Baroness Benjamin (LD)]

My Lords, I support the amendment. Living in Britain as a culturally diverse person can be very challenging and you need to be well prepared to face the challenges and adversities, which can be never-ending, even if you are living with your birth family. When you are different, you have to be confident about who you are as a person.

Since I spoke about this issue at Second Reading, I have been contacted by those who are for and against my stance that “due consideration” of a child’s religious persuasion, racial origin and cultural background when being placed for adoption should not be removed but should be included as an important part of the Bill.

We all agree that adoption between races adds another invaluable dimension to the adoption experience which cannot be ignored, because living in a loving family is priceless. However, the evidence points to ethnic background being a significant factor which cannot be ignored, and this has been said to me over the past few months by both children and adults who have been adopted. That is why I believe that social workers need to ensure that prospective carers can respond positively to the ethnic background of the child and consider what implications this may have as they grow up, especially during their adolescence, reflecting on their identity and heritage.

The British-Chinese adoption study by the British Association for Adoption and Fostering in 2012 found that this was an important consideration among young Chinese people who were placed with families with whom they could not identify, unlike the story that my noble friend has just told about the little girl whom her family has adopted. If a child experiences racism or rejection because of their religion or culture, they may feel isolated and not able to share this with anyone within the family. Being visibly different from family members can also result in a sense of feeling as though you do not belong, along with a loss of confidence, which I mentioned earlier.

I know that the Government recognise this as an important factor, but I believe that we are in dangerous territory if we remove consideration of it altogether from legislation. Do we really understand what the impact of these changes would be? Do we really understand what would happen and the message that we would be sending out? Nothing that has been said to me can convince me that such consideration by a court or adoption agency when coming to a decision relating to the adoption of a child is not important. Social workers need to be sensitive to this factor and to work with parents, who need to be able to understand the identity of the child they are adopting. This should not be a stand-alone but should be included in the child’s welfare checklist along with religion, culture and language, as so passionately put by the noble and learned Baroness, Lady Butler-Sloss, and as recommended by the House of Lords Select Committee on Adoption Legislation. It should not be the be all and end all, and nor should all the emphasis be placed on it, but it should be considered.

Equally important is the need to encourage more diverse families to become adoptive parents. That is not something that many people from diverse backgrounds consider, but there are ways in which we can make people realise that they can play an important part in our community.

We also need to improve the long-term stability for culturally diverse children by helping to boost permanence for these children beyond adoption, and the consideration of kinship care and long-term foster care. That is why I believe that everyone needs to support this amendment, for the sake of the well-being of the children whom I speak about who feel that they want to be part of this society and feel as if they belong.

--- Later in debate ---

[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.