In a week not short on proclamations about reforms to children’s services, adoption retained its now customary place as a priority of the Conservative government. In (yet another) announcement, it committed to more money for adoption support, more money to help establish regional adoption agencies, and that it would continue paying the inter-agency fee between local authorities, valued at £30 million when it was first announced in July last year.
However, this announcement carried significantly more weight than previous ones, as education secretary Nicky Morgan revealed an intervention with adoption law. The government promised a fundamental change in legislation that would place the quality of reparative care and length of placement at the heart of all permanency planning and decisions.
This latest measure could be viewed as the government’s final attempt to combat the effect of the Re B-S judgment made in 2013, which has been held responsible for a 51% reduction in children placed for adoption and has pointed attention towards the validity of special guardianship orders. The number of SGOs has increased by 193% since 2010, leading to concerns that they are being misused.
Clear in the announcement and Morgan’s comments was a commitment to increasing the number of adoptions, which has been a focus of the government for several years now.
Despite this, commentators are split on whether this is a reform to adoption law at all. Some say the change will lead to a prioritisation of adoption over other permanency options, others say this is more intended to strengthen special guardianship assessments, and some aren’t sure if this latest move will have any impact at all.
Last week’s announcement was first signposted in November, when David Cameron said the government was considering a legislative change to adoption at the same time he announced that special guardianship assessments would be strengthened. Reforms to special guardianship were outlined at the end of December, and some feel this latest move is an extension of that.
“I think what the legislation is likely to do is to find some way of raising the threshold for a special guardianship order, particularly in those cases where there’s those further needs for the child, combined with whether there’s a pre-existing bond between the child and respective special guardian,” says Hugh Thornbery, chief executive of Adoption UK.
Thornbery says that figures about the number of supervision orders being attached to a special guardianship placements influenced the decision. A Community Care investigation published in December 2015 found that 1 in 4 special guardianship orders made in 2014 had a supervision order attached, a 173% increase since 2012. Thornbery says this suggests that some children are being placed in “only just good enough” placements.
“The legislation is trying to get us back to the balance that was existing in many areas, that where there had been a good and appropriate use of special guardianship orders, that wasn’t having an impact on adoption. So local authorities and the courts were managing a good relationship between placement orders, special guardianship orders and adoption, so they were thinking about permanence and about avoiding drift,” Thornbery says.
Elaine Dibben, adoption development consultant for CoramBAAF, agrees the move could be about strengthening special guardianship assessments. By placing long-term outcomes and support in the legislation this could halt rushed special guardian assessments, which the courts sometimes ask social workers to do “in two to four weeks”.
“When special guardianship was introduced as an order it was always seen as a permanence order. I think the concern is that some of the scrutiny from the courts is looking much more at the ability of people to meet the child’s needs as they are now and not applying the same criteria that we would apply to adoption and seeing the child throughout their childhood,” Dibben says.
On the other hand, the chief executive of the Family Rights Group, Cathy Ashley, warns that the latest line of adoption announcements creates a “non-level playing field” where adoption receives support not available to other permanency options, such as kinship care or special guardianship.
Ashley also warns that the number of babies removed may increase as a result of this change: “How can a young care leaver prove they are able to offer reparative care? They will have their whole care experience in childhood used against them.
The reality is that the reparative care you can give to a child is dependent on what support the carer can access, in the main.”
Thornbery also warns of a “risk” that adoption becomes the order to go for, “because it is the order that comes with a whole load of guarantees” in terms of post-order support.
This reflects warnings from MPs last year that the government was making adoption the “gold standard” for all children.
Are there also concerns that placing an emphasis on a secure placement until a child is 18, and on the quality of reparative care, makes adoption look the best choice in many cases, as it is a binding legal order that can offer millions of pounds worth of therapeutic support to adopters?
“I think there is a concern there because that might mean for children whom special guardianship is exactly right if the support was there, they don’t go down that route, they go into adoption,” Thornbery says.
He adds: “There’s a risk of an unintended consequence there. What I am interested to see, because I’m not sure we’ve heard the end of all of this yet, is that the evidence that we have now about being able to better support adoptive families now transfers itself across to support for special guardianship.”
Dibben also shares a warning that “whether it’s the right order should not be about whether or not the support’s available to one set of people because it’s money being put into the fund and not the others, that wouldn’t be right”.
When the announcement was made last week, the government, as governments are inclined to do, heralded this as a fundamental change. Nicky Morgan said the government was “changing the law on adoption to make sure decisions rightly prioritise children’s long-term stability and happiness, so that children are placed with their new family as quickly as possible, helping them fulfil their potential and get the very best start in life”.
Not everyone is convinced, however. Child protection and family law blogger suesspiciousminds reacted to the news by questioning what impact it will have: “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.”
Likewise, Andy Elvin, chief executive of TACT Fostering & Adoption, believes the changes will “make no difference whatsoever”.
He says the number of prospective adopters needed to increase the number of adoptions of children over 5 with complex needs “aren’t out there, they never have been”, and that a decrease in special guardianship orders, matched by an increase in adoptions, “won’t happen”.
Family courts the arbiters
Elvin thinks the number of adoptions per year will eventually rest between 3,500 and 4,000, and that will remain the level of adoptions for the foreseeable future.
“The family courts have shown that whatever the politicians say they will continue to apply the best interest of the child over the lifetime of the child and that is still the bottom line. Nothing has been done that changes that and they will take the view that [they should determine] the most appropriate outcome for that particular child,” Elvin says.
Ashley sees this as the government’s attempt to “get around Re B-S” and increase adoptions, but doesn’t think it is going to achieve this: “I don’t think judges are a pushover.”
The next step is for the government to put forward the detail of its legislative changes, at which point just how “fundamental” these reforms are going to be will become clearer.