The Secretary of State for Education has “unveiled plans” to fundamentally change the law on adoption, many newspapers report today.
This is one of those peculiar unveilings where nothing actually gets unveiled. This announcement is unveiling in the same way as Michelangelo lifting up the cover over David an inch so that people can see it is a statue of a human, possibly a man, almost certainly made out of marble is unveiling the statue.
Or being invited to a film premiere, where you are ushered into a room and shown a copy of the poster for the film.
There’s nothing on the DFE website with any actual proposals, any actual intentions, any sort of timescale, or any suggestion as to how it is going to be done. There’s not even a press release available. I’m sure the Press got one, but it isn’t published. My guess is via statutory instrument, the Adoption and Children Act 2002 has enabling provisions to allow the Secretary of State to make regulations telling Local Authorities and Adoption Agencies to exercise their functions under the Act. There’s no such power to tell the Courts how to apply the law or tests, so that would require an Act of Parliament. A much longer process, and generally one that starts with a formal proposal to be consulted on.
Anyway, let’s look at what little we do know. I think Community Care’s piece is the best one for that.
The government has said it will quickly change legislation to make sure councils and courts prioritise placements on the basis of whether they will provide care up to the child’s 18th birthday, and provide the quality of care the child will need to recover from abuse and neglect.
The government said the change would mean that courts and councils always pursue adoption when it’s in a child’s interests. Morgan said it would “make sure decisions rightly prioritise children’s long-term stability”.
It sounds to me that this is intended more to be a reform to Special Guardianship – we were after all told at the start of this year that changes to law on that would be imminent, so it would fit. It seems as though this is focussing on Local Authorities making scrutiny of potential alternative placements with an eye to two things :- (1) will this placement really endure until the child’s 18th birthday and (2) can the placement offer the quality of care needed to fix any harm the child has suffered – a concept called “reparative care” and one that’s not so far had a clear place in English law.
One person’s “reparative care” is another person’s “This is social engineering” and it can be a tricky argument to deal with in Court. It will be interesting to see how the draft (or indeed actual) legislation frames it.
Will changes to what Councils have to look at make any real difference on the ground if the legal principles that the Court will apply remain those set out in the Act itself, as developed by caselaw?
Potentially, if the legal change is more about examining the alternatives to adoption, then the DFE / Secretary of State have potentially wider powers to make regulations than under the Adoption and Children Act 2002
s14 (F) (7) The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.
(8)The regulations may in particular make provision—
(a)about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;
(b)about the way in which a plan is to be prepared;
(c)about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;
(d)about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;
(e)as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);
(f)as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);
(g)as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area;
(h)as to the circumstances in which a local authority may recover from another local authority the expenses of providing special guardianship support services to any person.
Potentially the underlined passage could include factors within the assessment that the Court must have regard to. It would be very rare for Regulations to be made that add boundaries to a Court’s discretion which aren’t contained within the Statute itself – I suppose the precedent would be the various sentencing regulations and guidance for criminal Courts…
I’d also looked at Part I Schedule 11 that sets out the powers of the Lord Chancellor to make regulations in terms of jurisdiction, but that only applies to which level of Court can deal with which particular type of family law case, so it would not allow Regulations to be made about the principles the Court must apply.
Sadly, all of this is in a vacuum of information at the moment. I really wish that rather than giving speeches or press releases announcing a plan, the Government would occasionally put the broad details of what is proposed and timescales and route into the public domain. At the moment, it is very difficult to see whether this really is a fundamental change to adoption law, or simply writing down in Regulations what almost every Local Authority already does – they don’t tend to recommend placing children with relatives if they think it is bound to break down or to damage the child. The issue will always be about whether those doubts are capable of being supported by evidence, which when tested actually comes up to proof.
The press release is now up, and Community Care had already wrung every last scrap of actual detail out of it. But for completeness, here it is