Another bite-sized nibble at the Children and Families Act 2014. [Warning, post contains both Minnie and Moaning]
The more I dig into this Act, the more troubled I become. It may be that an Act that tries to resolve family justice, educational special needs, granting licences for performing children, allowing the Chief Inspector to enter a home and seize documents and take photographs if he believes a person is unlawfully pretending to be a childminding agency, repeals the no-fault divorce provisions of the Family Justice Act that never got commenced, employment rights for parents, whether you can smoke in your car if children are present, legislates on the shape size and texture of cigarette packets (and how you might open them), and whether it should be unlawful to sell nicotine gum or e-cigarettes to children MIGHT, I only say MIGHT, have spread itself a little too thin.
[I’m not exaggerating, this stuff is genuinely in the Act. It’s a Children Act, an Education Act, an Employment Act, a Tax Act and a Health Act all squidged into one place]
Today I’m looking at section 2, which is a new provision in the Children and Families Act relating to the duty on Local Authorities to consider and prioritise “foster to adopt” placements for children.
A “foster to adopt” placement is a foster carer who takes on the care of a child as a foster carer, but who is approved as an adopter, and who thus could move on to adopt the child if the Court’s final decision is that adoption is the right solution for the child.
With anything, there are pros and cons. Here are some (list exhausting, but not exhaustive) :-
Pros – it means that if the child does need to be adopted, the child moves once and only once (from the parent into a permanent placement). It means that the child is not waiting and forming an attachment with the foster carer only to lose that relationship.
It avoids delay in a permanent placement being found. It gives the Court when making final decisions a degree of confidence that a placement has been found and tested and that it works for the child. It gets approved adopters practical experience with caring for the child before making that huge commitment. It might help parents to know that the child is with someone that the child knows rather than there being a big mystery about where the child will be placed and when.
Cons – It can produce a feeling of fait accompli, that before the Court makes any decisions about the case that the child is already in an ‘adoptive’ placement just waiting for the rubber stamp. It can lead to adopters (already a scarce resource) bonding and connecting to a child only for the child to be rehabilitated – which is after all, the starting point in all care proceedings – how big an emotional turmoil would that be? In turn, does this lead to the carer keeping the child at ‘arms-length’ until the Court’s decision is made?
Is this a proper “matching process” or do you end up with a very superficial matching process? Does that lead to increased risk of breakdowns later on? It could lead to a placement for foster-to-adopt being made before a viable family member comes forward and then the child not being placed with that family member. Is there a conflict of interest in evidential terms – i.e if the foster carer hopes to adopt the child, how confident can the Court be when the foster carer reports that the child has nightmares after contact or never talks about missing mummy? The risk of the address coming out is greatly increased, as during the care proceedings documents are produced and circulated and it only takes one slip for an address that should be redacted not to be.
Most importantly, does having a ready made adoptive placement for the child end up tempting the Court into making the wrong comparisons when making their final decision – rather than looking at whether the parent is good enough do professionals and the Court get seduced into comparing what the child’s life would be like with these adopters versus going home?
And of course in light of Re B-S, how confident can one be that the Court, even if approving that the child should live with these carers would want to do it under adoption rather than fostering or SGO – doesn’t that raise the spectre of the foster-to-adopt carer being asked that specific question in evidence?
[I think you would need to be very transparent in recruiting foster-to-adopt carers that there is a very real possibility that the Court, even if the placement with them is sanctioned, might want to do this under SGO or Care Order rather than adoption, and that they might find themselves drawn into care proceedings]
Another difficult issue is what this means for sibling groups – if you have a group of children and one is aged 8 and one is aged 2, should the two year old be put in a foster-to-adopt placement and separated from the other, or is it more important for them to be together? [As we will see later on in this piece, if the s22 (9A) duty is triggered, that removes entirely the provisions in the Act that say that it is better for siblings to be together. That doesn't feel right to me - if there's a presumption about which is best "being in a placement where you might get adopted" or "being with your brother" I have a different view to the Act about which way the presumption should go]
It is hard to try to balance the pros and cons as an overall philosophy – it depends on your perspective and stance, and whether what is more important is justice and justice being seen to be done or minimising disruption and delay for a child. Perhaps it is the right solution for some cases, some children.
[I am not actually averse to concurrency placements and think that they represent a good option to have available for some cases, I am troubled by the clunkiness of how this has been rolled-out though]
I know that the Family Rights Group have been very concerned about the provisions, and I share some of their concerns – they did a great job in highlighting them, sadly they weren’t listened to- I’m not convinced that the ramifications of this legislation has been thought through
You can read Cathy Ashley’s piece in Community Care here.
All of the complaints that Cathy makes in that piece are legitimate and she is right that interested groups were making these points when the draft legislation was published. The ills they identified have not been remedied.
But what I want to do in this piece is to consider WHEN the actual duty arises (and in turn, what happens when it does)
Children and Families Act 2014
2 Placement of looked after children with prospective adopters
(1) Section 22C of the Children Act 1989 is amended as follows.
(2) In subsection (7), after “subject to” insert “subsection (9B) and”.
(3) After subsection (9) insert—
“(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and—
(a) are considering adoption for C, or
(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.
(9B) Where this subsection applies—
(a) subsections (7) to (9) do not apply to the local authority,
(b) the local authority must consider placing C with an individual within subsection (6)(a), and
(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.
(9C) Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.”
That’s rather a mouthful, but in essence
Where the Local Authority are considering adoption for the child OR are satisfied that the child ought to be placed for adoption AND if they are not satisfied that a placement with a relative is the most appropriate placement for the child, they must consider a placement with a foster carer who has been approved as an adopter
That seems to me to be two separate circumstances
S22 (9A) (a) The Local Authority are considering adoption for the child
22 (9A) (b) The Local Authority are satisfied that the child ought to be placed for adoption
I’ll deal with 22 (9A) (b) first, because although it is more complicated it is also easier (if that makes sense) because there’s an answer to WHEN a Local Authority are satisfied that the child ought to be placed for adoption.
That comes from s22 of the Adoption and Children Act 2002, which says that when a Local Authority is satisfied that a child OUGHT to be placed for adoption they MUST make a Placement Order application.
We know that a Local Authority cannot make a Placement Order application until they have a decision from their Agency Decision Maker that adoption is the plan for the child AND that they are authorised to make an application for a Placement Order.
Deep breath – therefore 22 (9A)(b) Children Act 1989 can be a duty that is ONLY triggered once the Local Authority have permission from the Agency Decision Maker to apply for a Placement Order.
That would normally be at around the time that the Local Authority file their final evidence, and thus about 8 weeks away from a final hearing. I think it is extremely unlikely that a Court would endorse moving a child from an existing foster placement into a Foster to Adopt placement 8 weeks before a final hearing, unless the parents are in full agreement. So, I just don’t think that this will actually happen in practice.
S22 (9A) (a) is a different matter. In effect, this means that if a Local Authority is considering adoption for the child and do not consider that placing with a relative is the most appropriate placement for the child, they must consider placing with a foster parent who is an approved adopter
Two distinct limbs of the test there
(1) Are the Local Authority considering adoption for the child
How do you decide whether the Local Authority is considering adoption for the child? Are they considering this once all of the evidence is in, or is the fact that they are considering it as a possibility mean that the first limb of the test is met? Are we getting into territory of whether they are REASONABLE in considering adoption for the child?
As the Family Rights Group have raised, this does create the spectre that a Local Authority who are fostering the child under a voluntary (s20) arrangement, long before the case goes to Court or the parents have legal advice, can say that they are “considering” adoption and thus have a duty to place in a foster to adopt placement.
(2) The LA do not consider that placing with a relative is the most appropriate placement for the child .
Okay, this is really important, because what this is a DIFFERENT test about placing a child with a relative.
The usual test
S22 C (7) Children Act 1989 means that a placement with a relative, friend or other person connected to the child MUST be given priority (and thus a child will only not get placed in a family placement if the circumstances in s22C (4) are made out – that the placement is not reasonably practicable or would not be consistent with the child’s welfare)
Won’t apply if the LA are ‘considering’ adoption under s22 (9A) In those circumstances, it seems that the LA can discount the placement with the relative if they think that it is “not the most appropriate placement for the child”
A different quality of test. S22C means that unless there are compelling reasons, the placement with the family member is better than foster care, and s22 9B (c) means that the LA don’t have to place with a relative unless they consider that this is the ‘most appropriate placement’ – that’s an entirely different character of test, and it is unlocked by the Jedi-hand-wave of “we’re considering adoption”
Also, WHEN is it that the LA “do not consider that placing with a relative is the most appropriate placement”? Is it at the outset of the case, when it might be that they want to conduct an assessment first and say they can’t place until that assessment is done? (Does THAT trigger the duty to place in a foster to adopt placement?) OR is it after that assessment is done?
At the moment, the wording is so loose that it appears that if the child is being placed away from the parent under voluntary accommodation, and the child is under six, the LA would be ‘considering adoption’ and can thus decide that a foster-to-adopt placement is more appropriate than placement with a relative, and also separate the child from a sibling. And not only CAN do it, but it appears that they have a duty to consider it.
I’m not suggesting that Local Authorities would do this willy-nilly or capriciously, but the point of legislation is to provide safeguards as well as powers, and this doesn’t have much. (It only takes one bad LA or one bad social worker)
IF a Local Authority were to do that, it can be argued that they are just following the duties pushed onto them by the Act.
[A simple solution to this would be for the LA to say that they have a duty to CONSIDER it, they have CONSIDERED it and are not going to do it as a result of the wider context of the case. That might be the angle that is taken in most cases, but it depends to an extent on whether the particular Local Authority is keen to push foster-to-adopt and has such carers available]
The other worrying thing is that if s229A (a) is met, s22C (7) –(9) do not apply.
(9B) Where this subsection applies—
(a) subsections (7) to (9) do not apply to the local authority,
What those cover are :-
That the placement should be within the Local Authority’s area
That the placement allows the child to live near their original home
That if the child is disabled the accommodation provided is suitable for the child’s needs
That the placement doesn’t disrupt the child’s education or training
That if the child has a sibling, it enables the child and the sibling to live together
The implication of this is, that if the LA are considering adoption and aren’t placing with a relative, their DUTY is to consider a foster to adopt placement EVEN though this would mean separating the siblings – the foster to adopt takes priority over siblings.
Given that ‘considering adoption’ triggers these duties (which can involve not placing with a relative because it is not the ‘most appropriate’ placement, and separating siblings) it seems a glaring omission that such a powerful test is not defined properly.
I also think that placing in foster to adopt is such an important issue that the Act ought to have said that this can be done only with either the permission of the existing holders of parental responsibility or the permission of the Court. That would have cut through most of the worries.
Without this provision, one is looking to the Court to be the safeguard check and balance. It will be the Court who would be endorsing the care plan put before them. The Court would be taking account of the fact that the Local Authority’s duty is to seek a foster to adopt placement even though that means separating brothers or sisters, but the Court is not bound to prioritise foster to adopt above siblings being together. (that priority setting bites on the Local Authority, not the Court)
I suspect that the Court would want to tell the Local Authority that their plan to place one child in a foster to adopt placement and another child in a separate foster placement (because one is young enough for them to be ‘considering’ adoption, and the other is not) is not approved and to change it if they want their Interim Care Order.
However, that then gets into territory of a wholly different kind, because the Children and Families Act 2014 also changes the role of the Court in scrutinising care plans
S15 Children and Families Act 2014
(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—
“(3A) A court deciding whether to make a care order—
(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but
(b) is not required to consider the remainder of the section 31A
plan, subject to section 34(11).
(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long term plan for the upbringing of the child concerned as provide for any of the following—
(a) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;
(c) long-term care not within paragraph (a) or (b).
The argument here, I think, would be that whilst the Court is not REQUIRED to consider in the care plan whether the siblings are together, they are not PROHIBITED from doing so.
[Or being very creative, saying that siblings are including within section 31 (3B) (a) since you are deciding whether the child can live with any member of the child's family - it says 'live with' not 'be cared for by']
Finally, if you are interested, having a child placed with you in a foster-to-adopt placement doesn’t trigger any adoption leave entitlement that exists in other legislation, until the child is actually formally placed for adoption (that’s tucked away in s121 of the Children and Families Act 2014)