(A summary of the Right on Time Ofsted report into delays in adoptions)
Ofsted have prepared a report about the adoption process, which is an interesting read, particularly in conjunction with the Government’s own independent look at this, and the groundswell of political and media opinion that something has to be done.
I would not describe myself as an uncritical admirer of Ofsted, but this does actually read like a good solid piece of work, and they have examined the process and inspected those well-known saws about adoption panels causing delay, politically correct social workers delaying things to look for ethnic matches, and considered whether there is in reality any truth to it.
The report is available here http://www.ofsted.gov.uk/resources/right-time-exploring-delays-adoption
They visited nine Local Authorities, with a good geographical spread. I have the advantage of having worked at one of those authorities, which is always nice to see.
The report outlines some helpful local initiatives – I particularly liked Norfolk’s “Family Law Summit” and a few of the authorities had appointed professionals to perform a liaison job between the social work and family finding tasks and the Court process (what you might call the “Claude Makele role of social work” – okay, you might not, but I just did)
I think often Adoption Panels are an unwitting scapegoat in delays, with under pressure and beleaguered social workers, questioned about why their final evidence is late find themselves throwing out the “I couldn’t get a Panel date” excuse, which is too often accepted uncritically. (And when did you first ASK for a Panel date, and when were you told you couldn’t get one, being the supplementary questions that never get asked)
And so we have a culture nationally that the judiciary and family lawyers generally think that Adoption Panels are nothing but a blight on the process, delaying matters whilst they drink tea and eat warm curled-up potted meat sandwiches in an airless room.
Ofsted haven’t actually bought into that myth…. (bolding here is mine)
71. Inspectors found no evidence of adoption panels contributing to delay, either in their responses to cases or in their capacity to meet the fluctuating but generally increasing number of cases presented to the panel.
72. All adoption panels made efforts to meet these demands by convening additional meetings when necessary. One panel had held four extraordinary meetings in the last 12 months to ensure that recommendations were made on time. Another had increased the number of regular panel meetings; yet another had already met three times in the month that inspectors visited. Elsewhere, a panel had used the opportunity to hear a case during their recent panel training day. Three additional panel dates were arranged as a contingency by one local authority, although they had not been required.
73. Effective arrangements were made to ensure that panels were quorate. One agency had recruited additional panel members to increase flexibility. Another had two panels but members could sit on either panel as required. Vice chairs stood in for panel chairs as necessary.
74. Inspectors saw several examples of the flexibility of panels in reducing delay in cases they were tracking. In two cases, the approval of adopters and the matching of those adopters with children were recommended on the same day. This was done to ensure that introductions and placement could commence more promptly. In one of the cases, this avoided the further delay of having to wait for the placement to commence until after the sensitive period of Christmas.
75. In one local authority, the variable quality of reports and the perceived lack of management oversight of these reports prior to panel meetings were identified as significant problems which caused delays in the progression of some cases. Nearly all panel chairs, however, reported that the quality of paperwork was uniformly high.
76. The Family Justice Review made a recommendation, accepted by the government that the requirement that local authority adoption panels must consider the suitability of an adoption plan for a child should be removed. There were mixed views about this. Some, mainly court or Cafcass representatives, felt that as adoption was a legal process, this was an unnecessary duplication of the court’s task. Panel chairs in particular felt that the panel discussions brought a range of perspectives and areas of expertise that added rigour to the decision-making process. Inspectors did not, however, find that the panel’s scrutiny of the case added delay for children. There was no evidence in the tracked cases that panel decision-making about the suitability of adoption delayed final hearings.
Politically correct yoghurt-knitting social workers insisting on ethnic matches
Ofsted did not consider that this crude stereotype, much beloved of the popular press was accurate. (I recall vividly having had to search through Hansard on the debates on the Adoption and Children Bill, to see if they had addressed a particularly quirky lacunae, and the debate was 98% about same-sex adopters and unmarried adopters, and 2% sheer drivel, much of that drivel being hackneyed clichéd garbage about whether all social workers wear corduroy trousers. It was incredibly demoralising to see that MPs charged with delivering a legal framework for some of the most vulnerable in our society were so utterly out of touch with the real world)
11. Careful consideration was seen to be given to how the ethnic and cultural needs of children could be met. As in the wish to keep siblings together, the objective of seeking to meet these needs had to be balanced against other demands, such as the need to avoid delay. There was no evidence that local authorities were only looking for the ‘perfect’ or exact ethnic match, reflecting stated policies regarding adopter recruitment and permanence.
12. While local authorities paid due attention to ethnic or cultural needs, decisions to look for a ‘best fit’ were generally made promptly. In nearly all the cases seen by inspectors, ethnic and cultural issues did not cause delays. There were several examples where minority ethnic children had been placed with adopters from a similar background, with no delay. In those cases where it proved hard to find suitable adopters who could meet children’s needs in those areas, but were not necessarily from the same background, delays typically ranged between one and six months.
Court proceedings and assessments
The finger does get well and truly pointed at the plethora of assessments and the often sequential nature of such assessments, being the main factor in delay, however.
[I am reminded here of my all-time hero, Gilbert Keith Chesterton, who stung by a series of letters to The Times about what varying things were making our great country go to the dogs, wrote his own pithy letter. Dear Sirs, I know exactly what is wrong with this country. It is me. Yours faithfully, G K Chesterton]
26. The most significant cause of delay in tracked cases was the length of time taken for care proceedings to be concluded before an adoption plan could be confirmed. The average duration of completed care proceedings in tracked cases was slightly under 14 months. The individual local authority area average for these cases ranged from 11 months to 20 months.
29. Additional and repeat assessments during care proceedings, generally occurring sequentially, were found by inspectors to contribute to the delay in achieving permanence for children in 20 (38%) of the cases tracked. This figure does not include those cases where the ability of parents and extended family members to care for children was quite properly assessed as part of proceedings in a timely manner. The 20 cases were cases where repeat or late assessments had a measurable and adverse impact on the timely granting of a placement order. Delay for these children was measured in months, or in some cases, years.
Now, one has to be careful here, because the Inspectors were looking back at cases which ultimately had unsuccessful outcomes (in that the child/children were adopted, rather than could be placed within the family), so there is a danger in drawing inferences about cases generally; since obviously all cases that end in adoption did not have assessments which made the positive difference and ended up with rehabilitation.
I happen to think that it is probably right that in 75% of cases, those second opinion assessments, when you’ve already done one thorough assessment, tell you nothing at all and make no difference. The trick is, in determining whether the instant case before you is one of the 75% or the 25%.
32. There was a common perception that the courts’ anxieties about upholding the Human Rights Act often overrode the ‘no delay’ principle of the Children Act 1989. There was a general consensus that the court process was adult-centred. One social worker said that children get ‘sucked into court’, without sufficient consideration of the impact on the children’s emotional well-being.
33. In eight cases, the commissioning of independent social work assessments essentially duplicated the task of the allocated local authority social worker and prolonged care proceedings. These assessments generally arose due to a disagreement about the proposed plan between the guardian for the child and the local authority or as a result of effective advocacy on behalf of the parents. In a number of the cases examined, repeat assessments, often ordered late in the process, ended up confirming the outcome of the original assessments but added months to the delay before the child’s future could be determined. In one case, a potential adoptive match was lost, leading to further delay.
It is hard to say if this is right; it certainly appears that there’s a correlation between the duration of care proceedings going up and the introduction of the Human Rights Act (and I noted from a recent analysis that prior to introducing a 40 week time limit, the average duration of proceedings was below that, and after the 40 week limit the average just went up and up and up – why? Because once you set a time limit, it is assumed that the run of the mill case will take that limit, and then you add all of the longer ones on top, skewing the average, whereas before there was a time limit, the shorter cases would end earlier)
But correlation is not causation. It could well be that the decisions of the Court of Appeal, quashing Judge’s decisions when they had tried to resist independent assessments had more to do with the proliferation of second opinion expert reports than the HRA – or it could of course be that it was thinking about the HRA that led to those assessments.
I would suggest that in a considerable number of cases, assessments are commissioned not because there is the gap in the evidence envisaged by the Court of Appeal in TL v (1) LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2) ED (3) S (BY A CHILDREN’S GUARDIAN (2011)  EWCA Civ 812 but through fear that if you get to final hearing without a psychological, or an independent social work assessment, or a culturally appropriate expert, that the whole of the final hearing will be spent bemoaning that fact and trying to persuade a Court that it would be unfair to make final decisions without one; so acqueisance to the instruction of an expert is often with a view to it being worse to reach a final hearing in four months time and then have the Court decide to adjourn for a further four-five months to get a psychological assessment rather than get one now, and have the final hearing in six months time.
That’s not going to change until the Courts who determine that a further assessment isn’t needed and apply the principles in TL V London Borough of Hammersmith and Fulham get the backing for that decision by the Court of Appeal. It may come on its own, it may require the FJR to be put into statute, it may still not come, but one can’t be surprised that professionals and the Court play cautiously when there’s such a risk of being overturned when robust case management decisions are implemented.
This also feeds into the next issue that Ofsted considered, which was the relative weight that social workers evidence gets, compared to that of other professionals.
37. In nearly all local authorities, social workers reported that they lacked credibility and status in the court arena. They believed that the lack of confidence in the quality of local social work assessment resulted in a reliance on independent ‘expert’ assessments, and therefore an increase in the duration of care proceedings. Several representatives from Cafcass and the courts, including senior judges, shared this view.
38. Social workers in several local authority areas were frustrated by a sense that they were not perceived as ‘experts’ in their own right and they felt that independent assessments were not often of superior quality to their own. Managers and social workers in some of these local authorities felt that the implied criticism was unfair, and based on an historical reputation that was no longer warranted.
39. In some areas, Cafcass and the court representatives accepted that the general view of social workers may in part be based on an out-of-date stereotype, but nearly all stressed that the uneven quality of local authority social work assessment remained a problem and was the main factor in the high number of repeat and independent assessments.
40. Senior managers in four local authorities openly expressed their concern that too many social workers responsible for cases in care proceedings did not yet have the necessary expertise and experience to undertake the work well. In particular, they believed that some social workers struggled to consider permanence issues adequately among all the immediate demands of court work including undertaking family assessments, managing contact arrangements and carrying out the myriad responsibilities associated with looked after children.
It is a particular bugbear of mine that Courts continue to give Guardian’s evidence the same weight as they did in the early days of the Children Act 1989, when Guardians really were the independent eyes and ears and a check and balance that the Act envisaged, rather than the Diet-Diet-Diet Guardian we currently have, as a result of CAFCASS trying to manage the service within budget by diluting the service. The next dilution of the service will result, I think, in homeopathic Guardians, where they are so dilute that there is no longer any actual connection with the child in question at all. No doubt they will still have a placebo effect… Ofsted acknowledge that this gap between a social worker’s opinion and that of the Guardian exists.
43. There was a general perception within local authorities that children’s guardians were likely to be more experienced than the local authority social workers and that their views, as a result, carried more weight. Several Cafcass and court representatives acknowledged that this perception may, however generalised or mistaken, have sometimes affected courts’ decision-making.
44. In one case, the local authority had a firm plan for adoption but at a directions hearing as part of the ongoing care proceedings, it was agreed that the plan should be changed to reunification with the child’s mother. Both the social worker and the senior manager reflected that the local authority had been ‘railroaded’ into this change of plan; in their view the social worker’s low status in court compared with that of the guardian, who supported the change in plan, was a key contributing factor. The social worker did not feel equipped to challenge the court’s position and the local authority acknowledged that its own legal advice was insufficiently robust. The plan for a return home was not successfully implemented and there was now likely to be a delay of over a year for the child to be adopted.
Local Authority legal representation
It would be wrong of me, as a local authority lawyer, to gloss over the complaints and issues identified in the Ofsted report about people like me across the country.
45. Views varied on the quality of local authority legal advice. Social workers and managers did not always feel that legal representatives robustly challenged parents’ solicitors or guardians. One authority had recently altered its commissioning arrangements for obtaining legal advice, and each consultation now incurred a fee. This was designed to discourage a previous over-reliance on legal advice, but there was a general consensus that access to legal advice was now actively discouraged by managers and, consequently, was sometimes delayed.
Working relationships between Local Authorities, CAFCASS and the Courts
50. Inspectors found that the relationship between the main participants in the court process was often marked by mistrust – ‘There is an inherent tension here between social workers and guardians,’ said one senior Cafcass manager – and it appeared at times to be adversarial, with each often blaming the other for faults in the system. This tension, however, was less evident in areas where more regular meetings between key agencies were held to address shared concerns and had promoted the development of more constructive and mutually understanding relationships.
51. In all local authority areas, inspectors heard that key court stakeholders met on a regular basis, but often those meetings concentrated on business issues of the court and were acknowledged to lack focus on outcomes for children. Other examples of joint working included regional away days, training, and development work as part of a local performance improvement group. Too often, however, these meetings were erratically attended or had ceased to be convened and most of the professionals spoken to by inspectors felt that they had not had a measurable impact. There was often a lack of consistency in reports about joint activity across local areas, reflecting a low awareness among professionals of how the different partners worked together.
These are much the same concerns as highlighted in the Family Justice Review, that there is mutual suspicion, distrust and blame, between the different organisations who are trying to deliver family justice. This clearly is a problem, and the bit I have put in bold above is something telling, but the first time that I’ve seen someone brave enough to put it into writing.
Maybe Norfolk’s idea of (peace) Summits is a good one. I for one look forward to being involved in such talks, and perhaps we should introduce the UN Model of simultaneous translation too, since Local Authorities, Cafcass and the Courts all seem to be speaking slightly different languages.