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With influential voices questioning the scale and nature of adoption in the UK, Damian Woodward-Carlton looks at the question, raised by Lord Justice McFarlane, whether the current model is the right one
In recent years there has been an increasing tension between the message from government that there must be more and quicker adoptions – with pressure on local authorities to achieve this – and the re-affirmation in the family courts regarding the stringency of the approach that must be taken when making such momentous decisions (see box, p 36).
In 2001 the Blair government, and in 2011 the Coalition government, launched initiatives to increase the number of adoptions. These policies spurred local authorities to consider children for adoption up to and beyond the age of seven years. (Department of Education figures for 2015 indicate that currently 20% of adoptions are of children over the age of four years.) In 2015 the Cameron government launched measures to double the number of children placed with their adoptive family sooner.
Despite these efforts, research indicates that ‘in the third of local authorities with the highest adoption rates over the last five years there was an increase of 10.0% in children in care whilst in the third with the lowest rate the number of children in care fell by 3.2%’. To complicate the picture, the pattern of ‘increasing adoption and increasing numbers of children in care is not uniform across the country. The annual rate of children leaving care to be adopted varies across local authorities from 30% to under 3%.’ (See ‘The government’s adoption drive isn’t achieving its aims’, Andrew Bilson, Community Care, February 2017, at: bit.ly/2zDcqHO)
Is adoption still the best outcome?
Over the last few years, there has been observable turbulence in interpretation of the law in relation to adoption and how family court judges should deal with such cases. Increasingly, influential voices are questioning the scale and nature of adoption in the UK, reflecting changes in values, technology and practicality. In part to clarify the law and judicial approach, Lord Justice McFarlane gave a speech in October 2016 to the Family Law Bar Association National Conference entitled ‘Nothing Else Will Do’. In it he concluded: ‘The aim of the recent flurry of case law has not been to remove or devalue the option of adoption for such children; it has… been to ensure that the all-important adoption decision is made, as it must be, by affording paramount consideration to the child welfare throughout her life, following a comprehensive balancing of the relevant welfare factors, and where adoption is seen to be both necessary and proportionate to the facts of the case. That is the exercise in social work and judicial analysis that is required; indeed, I would say, “nothing else will do!”’
In a more recent lecture to the Family Justice Council, McFarlane LJ gave a compelling overview and analysis of the state of the balancing in society between the protection of children and the rights of families (The Bridget Lindley OBE Memorial Lecture 2017, ‘Holding the risk: The balance between child protection and the right to family life’). He identified areas of ‘hesitation’ preventing the conclusion that all was well in how we, as a society, strike this balance: ‘Making an adoption order radically shifts the tectonic plates of an individual’s legal identity (and those of others) for life. That is a very big thing to do in order to protect that individual from harm during their formative years. Is an order of that magnitude necessary? How do we know that it is indeed the best outcome for the young person whose future life is being decided by the court?’
McFarlane LJ set out ‘a radical change in a number of the fundamental elements of our model of adoption in recent years’ as follows:
The older the child when placed for adoption, the more knowledge and understanding they will have about their life to date and of their natural family – they may have developed stronger (not necessarily positive) relationships with birth family members. They are also likely to have been exposed to more dysfunction and abuse, resulting in a greater chance of engrained long-term harm: ‘No matter how strong, skilled and loving the placement in their adoptive home may become, it must remain likely that the consequences of their earlier experience will be played out as they come to terms with the sense of their own identity whilst traversing the choppy waters of adolescence in the adoptive home.’
The difficulties facing adopters and adopted children have been made significantly more difficult in recent years with the ever-increasing facility to trace and make contact (in an uncontrolled way) with individuals over the internet or via social media. The Children and Families Act 2014 inserted ss 51A and B in the Adoption and Children Act 2002 to deal with post-adoption contact. Section 51A(2) allows the court to prohibit contact with a child post-adoption – but it is difficult to be confident of the effectiveness of such prohibitions given the pervasiveness of social media.
These factors, McFarlane LJ concluded, are: ‘sufficient to raise the question of whether our model of adoption continues to be as valuable to each of the individuals concerned as we have hitherto held that it is… the question is a valid one, it can only be answered by substantial research by suitably qualified experts. Such research is, in my view, sorely needed.’
How do we know it has worked out all right?
Family judges receive very little feedback on the outcome of their decisions. The little they do receive is ‘haphazard’ and generally when a case comes back to court in another form. Without ‘sound, wide-ranging research’ as to outcomes, and without detailed individual feedback on particular cases, McFarlane LJ said ‘it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is “necessary” to do so to protect the child, is indeed justified.’
Asking the right questions: sources of research
One research project McFarlane LJ recommended as ‘required reading for us all’ is the study by Dr Elsbeth Neil and others at the University of East Anglia on contact after adoption, including social media (see: www.uea.ac.uk/contact-after-adoption). This longitudinal study has followed children from when first adopted through to late adolescence and developed apractice model for practitioners to support positive contact plans.
What the study found was that in some cases contact with the birth family via social media could be beneficial where children have the support of their adoptive parents. Such contact, whether initiated by the child or the birth family, could also be very unhelpful when the child or young person was unprepared and therefore ill equipped to cope. The research makes reference to ‘unmet needs’ of some adopted children and birth families as the impetus for communication over social media. It is likely that there are similar ‘unmet needs’ for children in foster care. These needs may well continue to be unmet despite court orders and may drive children and family members to reach out to each other in ways that are imperceptible to carers and professionals.
Another research project currently under way, and the subject of a recent seminar at 42 Bedford Row, is a UK-wide adoption enquiry on behalf of the British Association of Social Workers by the Royal Holloway, University of London and University of Huddersfield. Led by Professor Brid Featherstone and Professor Anna Gupta, the study’s focus is on rights and ethics: ‘Much attention in social work has been focused on... practice issues, and on meeting government-led targets and outcomes. There has been a relative absence of discussion within the profession of the issues of rights and ethics, in what is an increasingly contested and complex area of work.
This focus on ethics and its implicit requirement to ask fundamental questions about not just if a policy can work but whether it is the right policy are questions that all professionals involved in adoption need to be asking. The findings of the enquiry are expected to be disseminated before the end of 2017 and it is hoped that this will represent just part of a wider societal conversation on the role and nature of adoption in the UK.
Essential considerations for judges
Following the leading Supreme Court case of Re B [2013] UKSC 13, the Court of Appeal gave judgment in Re B-S [2013] EWCA Civ 1146, in which Sir James Munby, President of the Family Division of the High Court, listed the ‘essential considerations that judges must always have in mind... at every stage of the process’.
These all arise from Art 8 of the European Convention on Human Rights and include the following considerations:
Damian Woodward-Carlton KC is a family practitioner at 42 Bedford Row and regularly appears in complex cases involving a range of public law matters. He is actively involved in 42 Bedford Row’s new Animal Welfare group.
In recent years there has been an increasing tension between the message from government that there must be more and quicker adoptions – with pressure on local authorities to achieve this – and the re-affirmation in the family courts regarding the stringency of the approach that must be taken when making such momentous decisions (see box, p 36).
In 2001 the Blair government, and in 2011 the Coalition government, launched initiatives to increase the number of adoptions. These policies spurred local authorities to consider children for adoption up to and beyond the age of seven years. (Department of Education figures for 2015 indicate that currently 20% of adoptions are of children over the age of four years.) In 2015 the Cameron government launched measures to double the number of children placed with their adoptive family sooner.
Despite these efforts, research indicates that ‘in the third of local authorities with the highest adoption rates over the last five years there was an increase of 10.0% in children in care whilst in the third with the lowest rate the number of children in care fell by 3.2%’. To complicate the picture, the pattern of ‘increasing adoption and increasing numbers of children in care is not uniform across the country. The annual rate of children leaving care to be adopted varies across local authorities from 30% to under 3%.’ (See ‘The government’s adoption drive isn’t achieving its aims’, Andrew Bilson, Community Care, February 2017, at: bit.ly/2zDcqHO)
Is adoption still the best outcome?
Over the last few years, there has been observable turbulence in interpretation of the law in relation to adoption and how family court judges should deal with such cases. Increasingly, influential voices are questioning the scale and nature of adoption in the UK, reflecting changes in values, technology and practicality. In part to clarify the law and judicial approach, Lord Justice McFarlane gave a speech in October 2016 to the Family Law Bar Association National Conference entitled ‘Nothing Else Will Do’. In it he concluded: ‘The aim of the recent flurry of case law has not been to remove or devalue the option of adoption for such children; it has… been to ensure that the all-important adoption decision is made, as it must be, by affording paramount consideration to the child welfare throughout her life, following a comprehensive balancing of the relevant welfare factors, and where adoption is seen to be both necessary and proportionate to the facts of the case. That is the exercise in social work and judicial analysis that is required; indeed, I would say, “nothing else will do!”’
In a more recent lecture to the Family Justice Council, McFarlane LJ gave a compelling overview and analysis of the state of the balancing in society between the protection of children and the rights of families (The Bridget Lindley OBE Memorial Lecture 2017, ‘Holding the risk: The balance between child protection and the right to family life’). He identified areas of ‘hesitation’ preventing the conclusion that all was well in how we, as a society, strike this balance: ‘Making an adoption order radically shifts the tectonic plates of an individual’s legal identity (and those of others) for life. That is a very big thing to do in order to protect that individual from harm during their formative years. Is an order of that magnitude necessary? How do we know that it is indeed the best outcome for the young person whose future life is being decided by the court?’
McFarlane LJ set out ‘a radical change in a number of the fundamental elements of our model of adoption in recent years’ as follows:
The older the child when placed for adoption, the more knowledge and understanding they will have about their life to date and of their natural family – they may have developed stronger (not necessarily positive) relationships with birth family members. They are also likely to have been exposed to more dysfunction and abuse, resulting in a greater chance of engrained long-term harm: ‘No matter how strong, skilled and loving the placement in their adoptive home may become, it must remain likely that the consequences of their earlier experience will be played out as they come to terms with the sense of their own identity whilst traversing the choppy waters of adolescence in the adoptive home.’
The difficulties facing adopters and adopted children have been made significantly more difficult in recent years with the ever-increasing facility to trace and make contact (in an uncontrolled way) with individuals over the internet or via social media. The Children and Families Act 2014 inserted ss 51A and B in the Adoption and Children Act 2002 to deal with post-adoption contact. Section 51A(2) allows the court to prohibit contact with a child post-adoption – but it is difficult to be confident of the effectiveness of such prohibitions given the pervasiveness of social media.
These factors, McFarlane LJ concluded, are: ‘sufficient to raise the question of whether our model of adoption continues to be as valuable to each of the individuals concerned as we have hitherto held that it is… the question is a valid one, it can only be answered by substantial research by suitably qualified experts. Such research is, in my view, sorely needed.’
How do we know it has worked out all right?
Family judges receive very little feedback on the outcome of their decisions. The little they do receive is ‘haphazard’ and generally when a case comes back to court in another form. Without ‘sound, wide-ranging research’ as to outcomes, and without detailed individual feedback on particular cases, McFarlane LJ said ‘it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is “necessary” to do so to protect the child, is indeed justified.’
Asking the right questions: sources of research
One research project McFarlane LJ recommended as ‘required reading for us all’ is the study by Dr Elsbeth Neil and others at the University of East Anglia on contact after adoption, including social media (see: www.uea.ac.uk/contact-after-adoption). This longitudinal study has followed children from when first adopted through to late adolescence and developed apractice model for practitioners to support positive contact plans.
What the study found was that in some cases contact with the birth family via social media could be beneficial where children have the support of their adoptive parents. Such contact, whether initiated by the child or the birth family, could also be very unhelpful when the child or young person was unprepared and therefore ill equipped to cope. The research makes reference to ‘unmet needs’ of some adopted children and birth families as the impetus for communication over social media. It is likely that there are similar ‘unmet needs’ for children in foster care. These needs may well continue to be unmet despite court orders and may drive children and family members to reach out to each other in ways that are imperceptible to carers and professionals.
Another research project currently under way, and the subject of a recent seminar at 42 Bedford Row, is a UK-wide adoption enquiry on behalf of the British Association of Social Workers by the Royal Holloway, University of London and University of Huddersfield. Led by Professor Brid Featherstone and Professor Anna Gupta, the study’s focus is on rights and ethics: ‘Much attention in social work has been focused on... practice issues, and on meeting government-led targets and outcomes. There has been a relative absence of discussion within the profession of the issues of rights and ethics, in what is an increasingly contested and complex area of work.
This focus on ethics and its implicit requirement to ask fundamental questions about not just if a policy can work but whether it is the right policy are questions that all professionals involved in adoption need to be asking. The findings of the enquiry are expected to be disseminated before the end of 2017 and it is hoped that this will represent just part of a wider societal conversation on the role and nature of adoption in the UK.
Essential considerations for judges
Following the leading Supreme Court case of Re B [2013] UKSC 13, the Court of Appeal gave judgment in Re B-S [2013] EWCA Civ 1146, in which Sir James Munby, President of the Family Division of the High Court, listed the ‘essential considerations that judges must always have in mind... at every stage of the process’.
These all arise from Art 8 of the European Convention on Human Rights and include the following considerations:
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