Adoption Agencies (Panel and Consequential Amendments) Regulations 2012

Viscount Eccles Excerpts

Wednesday 25th July 2012 Grand Committee

[Baroness Howarth of Breckland]

My Lords, I do not intend to repeat the very clear, coherent points made by the noble and learned Baroness, Lady Butler-Sloss, but I shall add to them. I am delighted that this debate is being held because the committee was extremely concerned when it saw the instrument. It is important to make the point that if the Government ask a Select Committee to undertake a task—in this instance to look at adoption—the committee should be kept well informed and other decisions should not be made without cognisance of the evidence that it is hearing and has heard. If it is not, we might as well all go home, rather than continue to work hard on the issues. I know that the chair is unable to say that but I think I can.

I shall say a little about some of the work around the family justice review, which was extremely complex and fraught. I know that because while it was being undertaken I was chair of CAFCASS, which was central to the disputes and discussions about delays and whether systems should be changed. David Norgrove did not say a great deal about panels but they are what I call low-hanging fruit. In looking at structures and systems, panels are one layer that you might be able to take out. You would then have removed a level of what looks like bureaucracy to move things forward. However, David Norgrove found an extreme level of mistrust between all the partners. I am sure the noble Lord, Lord Hill, spoke to him during that period. He was almost obsessed by the relationships between judges, social workers, CAFCASS and the other stakeholders in dealing with the issue. Therefore, finding good recommendations was important to him, and there is much in his report that takes us forward.

It is clear that, at present, many children spend far too long in care, moving in and out of it before decisions are made, and that we have to find ways of speeding this up. Views about adoption panels and whether they help or hinder the process are mixed. There is no systematic evidence. There has not been any decent inquiry into the working of panels. Again, I will not repeat what the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have said about the evidence that we have heard from other parties, but people have anecdotal evidence that is as strong as any that might come from a review. I think that that would be useful. Personally, I am agnostic about panels and I suspect, as CAFCASS said, that they could be reviewed; that they come far too late in the process; and that the important thing is that the multi-professional information is gathered appropriately together to properly inform the decision. I do not think that the way in which that is processed has been properly looked at in relation to the decision to remove panels. Those are the things that would make a difference.

One of the other things that we know—I shall repeat this—is that when information gets to the judges, if they do not believe that they have enough expert information, they will commission experts to give it to them. A piece of work we have done recently is that of reducing the number of experts in court, particularly in the family courts, in order to reduce delay and speed up good quality decision making. It is quite clear that social workers and CAFCASS officers have a high level of expertise, but we also know that local authorities vary hugely one from another. What is the Minister going to do to make sure that when information goes to court, it does not add to delay because the judge is looking for the right information which he or she does not think has been quality tested? At the moment, they have the assurance that it has gone through a number of experts in a panel. It may be that there is an answer to this; I am looking for it.

I am also extremely concerned about the amount of work that falls on the shoulders of both decision-makers and independent reviewing officers. We have seen examples where the level of caseloads—certainly for independent reviewing officers and, I am sure, people up and down the country who have to make these decisions—is quite inappropriate in terms of being able to make the quality of decision that is needed. If Tim Loughton, when sitting in on panels, thought that they had a lot of material to digest, imagine what it would like for the decision-makers if they have to digest the material for themselves without having an expert opinion across a range of issues. They will be looking at psychiatric problems in some children who are going to be placed, or children with learning difficulties. We know that children who are being placed for adoption and coming through care are not straightforward babies with no difficulties. The panels help to assess that information before it is given to the judge in relation to the placement.

However keen you are on adoption, it is necessary to remember the balance between birth families and prospective adoptive families. There is a danger that, if you do not have good information on their families, which social workers in local authorities have to assess, there will be miscarriages of justice. That is of deep concern to me.

I would ask the Minister to answer the questions from the NSPCC which were repeated by the noble and learned Baroness, Lady Butler-Sloss. It is extremely concerned about the mix of practice across the country. I also ask him to tell me how he, being responsible in central government, can ensure that local government, with all the decentralisation, do not overwhelm those who have to make these decisions so that quality decisions continue to be made. I will rest my arguments there.

[Viscount Eccles]

My Lords, I will follow the same theme but I hope that I will not be repetitive. A great deal is going on in the area of adoption, whether it is the Norgrove review, the March action plan or the existence of the Select Committee on which I am very pleased to serve.

I want to draw attention to paragraph 78, which records the decision and has already been quoted by the chairman, the noble and learned Baroness, Lady Butler-Sloss. It ends with the sentence she has already quoted:

“We believe that the court’s detailed scrutiny of these cases should be sufficient”.

It does not say “is sufficient” or “is known to be sufficient”: it says “should be sufficient”. It is quite important that that sentence is conditioned. Indeed, the Explanatory Memorandum should have quoted paragraph 78 in full and not selected the middle sentence. In my view, the Explanatory Memorandum to this instrument has a tendency to short-cut.

Let us take the words “should be” and look at what this enormously comprehensive report, with more than 100 recommendations, said on the relationship between courts and local authorities in paragraphs 3.45 and 3.46. It is worth reading this into the record:

“Our recommendations are intended to restore the respective responsibilities of courts and local authorities”.

If I may interpose, the word “restore” is a quite strong use of language. It implies that something is not as it used to be, even if not quite that it has broken down. The report continues:

“But to change the law does not tackle the root cause of the difficulties. This stems we believe from a deep-rooted distrust of local authorities … This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.”

Paragraph 3.46 states:

“The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each group to sit on the sidelines and criticise the other.”

It may be right to have taken away one of the responsibilities of panels. It could be right to remove the second opinion which may be provided very helpfully either to local authorities or to courts which might need it. It may be right to make them face up to the need to work successfully together. Perhaps I may be allowed to say that that is the Norgrove motivation. But it seems very risky.

We know that the performance of local authorities is uneven, for some quite good reasons such as the size of the authority or the ethnic mix in the authority. Political persuasion may have entered into it at some stage. We also know that the performance of the courts is very uneven. Our committee has not yet received as much evidence on that as we will have done when we come back in the autumn. Indeed, the government literature—the action plan in March or the Explanatory Memorandum—is quite cautious about criticising the courts. It is perhaps overcautious in the balance between its opinions on local authorities and the courts.

However, Norgrove is very clear. I think that he is saying that the front-line troops—the local authorities, the IROs and the social workers, and the courts with the judges—need to be in the front line. They need to get together and to perform without being intervened upon by outside experts and interests, which may be right as a long-term objective. Certainly, one would hope to find relationships between local authorities and courts in general becoming much better than they apparently are if this review is to be believed—and I see no reason to doubt it.

However, the Government will have to watch what happens very carefully, because it is not self-evident that removing this second opinion, this ability to put things together to the benefit of both the local authority and the court, will enhance the process of adoption. Delay has been mentioned as a reason. The evidence for it does not stand up. The evidence for duplication is dependent on there being confidence that the ability to perform exists both in the local authorities and the courts. If it does not, the duplication argument does not stand up either.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the noble Baroness for putting down this Motion today. She has enormous expertise in this area and, as I had anticipated, it has been very instructive listening to her speak not only about her past experience but about the work of the scrutiny committee. It has been interesting also to hear the details of the ongoing work of that committee that other noble Lords have been able to share.

I hope that noble Lords will forgive me if other people in the Room have more expertise in this area than me; I see myself as being on a learning curve. However, I believe that we have so far failed to get the balance right between scrutiny and decision-making in adoption procedure, leading to unacceptable delays in the processing of applications for children to be adopted. As has been said today, this matter has been debated on many occasions over many years. It is also addressed in detail in the Family Justice Review report. As we have heard, the amended regulations before us today implement one small change in a much bigger set of recommendations contained in that report.

Having looked at those recommendations, we are persuaded that a one-stage process of scrutiny by either an adoption panel or the courts through a placement order should be sufficient to protect the interests of children and parents, with the emphasis being clearly on the primary interests of the child. However, the questions posed by the noble and learned Baroness, Lady Butler-Sloss, chime with several of our concerns.

The Explanatory Notes accompanying the regulations make it clear that this change is part of a larger package of legislative reform affecting adoption practices and that the Government will consult on these wider proposed changes. We look forward to participating in the consultation, and I would be grateful if the Minister could take this opportunity to update us on the timetable and scope of the planned consultation. Is it the intention, for example, that the outstanding recommendations from the Family Justice Review relating to adoption and the conclusions from the adoption scrutiny committee will be incorporated in the consultation?

This leads to the fundamental question, which the noble Baroness raised, of the timing of the proposals. We wonder at the wisdom of introducing this change to such an important piece of public policy on a seemingly piecemeal basis. Perhaps the Minister could clarify why the changes are being introduced now, when the scrutiny committee’s work is ongoing and when more radical issues relating to the role of local authorities and adoption panels are on the cards. The noble Baroness, Lady Howarth, asked powerfully why the scrutiny committee’s work was commissioned if it was to be pre-empted in this way as it now appears to be.

Given the sensitivities involved in dealing with adoption issues and the need to ensure that safeguarding the interests of the child is built into everything that we do, can the Minister confirm whether the changes, if introduced, will be monitored and reassessed over time? It is vital to ensure that child protection at this fundamental level is not being compromised. I look forward to hearing what the Minister has to say.