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13 January 2014
The disturbing case of Alan and Judith Kilshaw - the couple who paid thousands of pounds to adopt twin baby girls over the internet - has put reform of adoption law on the front pages of the newspapers and pushed it up the political agenda.
Ministers seemed ahead of the game, as only weeks before the controversy erupted they had unveiled the biggest overhaul of adoption law in 25 years. The Adoption and Children Bill, which last month had its second reading in the House of Commons, is designed to speed up and encourage more people to adopt children in care. The Government has pledged £66m to overhaul adoption services over the next three years and to increase the number of adoptions by 40 per cent by 2004/5.
But adoption law specialists are wary of easy answers to such complex issues. "There's a lot of rhetoric about getting more babies adopted, but the story's much more complicated," says Katherine Gieve, a partner and adoption specialist at Bindman & Partners. She stresses that adoption should not be regarded as a panacea. She says: "Adoption per se is not a remedy for a lot of the children in care." It was attractive in the past because it draws an end to the local authority obligation, but she argues that the responsibility of the community generally continues. As well as reforming the law, Gieve argues that the Government must also support social services for all parties involved.
Speeding up the process is "vitally important", according to Marcus Dearle, a family partner at Withers. "It's questionable whether the Government can deliver a significant increase in the number of adoptions, and particularly placements of older children in care, which it urgently needs to do," he says. Prospective adopters might want babies, he points out, but they are less keen on seven or eight-year-olds who have spent a few years in care.
There are around 2,000 youngsters waiting to be adopted and 1,200 parents waiting to adopt. But as Tony Blair acknowledged in his foreword to the White Paper, the average time spent before a decision is made regarding a child's adoption is 16 months, and the average time from decision to placement is another seven months. "A lifetime in children's terms," he noted.
At the heart of the reforms is the creation of a national adoption register to match children with potential parents. According to Naomi Angell, a family law partner at Goodman Ray, such a centralised body would enable a family in Newcastle and a child in Devon to be matched. She welcomes such an approach. "Children have been drifting in the system, which is bad for them, because the longer they're there, the more moves and foster placements they're likely to have and the greater the difficulty to place them in permanent families," she says.
New national standards have just been consulted upon under which local authorities have six months to produce a plan for the future of children taken into care and, if that involves adoption, a further six months to be placed with an adoptive family.
Guidelines will also address the perceived problems of bureaucracy in the system and arbitrary decision-making. There has been much criticism of social workers playing God and making overly politically correct, and even bizarre, judgements. For example, potential adopters have been judged inappropriate because they are the wrong colour, the wrong class and even because they are overweight. The original adoption white paper published in December states specifically that no child should be denied adoptive parents on the grounds of "racial or cultural background", but remains quiet on controversial areas such as cohabiting or homosexual adopters.
Jeremy Rosenblatt, an adoption law specialist at 4 Paper Buildings who represented the natural father in the Kilshaw case, detects a new culture at work in the courts. "The Government is trying to make the guidelines wider and more perceptive," he says. In a recent case, a black, middle-aged couple were deemed to be too old to adopt by the local authority, but Rosenblatt says that the court adopted an attitude of "don't be so ridiculous". However, the barrister questions whether this approach is filtering through to the decisions of social workers on the ground.
Under the new law, would-be adopters are entitled to an independent review should an adoption agency reject an application. It is an innovation welcomed by lawyers. "It just has to be natural justice that you have the ability to apply for an independent review of such an important decision," says Angell.
The legislation also envisages "special guardianship" status, which stops short of the legal severance that adoption involves. According to Dearle at Withers, it is an "innovative and flexible tool" for the adoption lawyer's kit. "You're often in a situation where adoption isn't appropriate, and sometimes the child would like to keep in touch with his or her parents," he says. Such an option could be appropriate for older children who might not want to be legally separated from their birth parents.
While the Adoption and Children Bill deals mainly with domestic adoptions, the Kilshaw saga has precipitated a debate concerning the ethics of inter-country arrangements. According to Deborah Cullen, a solicitor and secretary to the British Agencies for Adoption and Fostering's legal group, such private arrangements for adoption are generally illegal in this country. She says: "The difficulty's been when someone has a child placed with them outside the jurisdiction that is not caught by the prohibition." As Cullen points out, it has been an issue since the rush to adopt from Romanian orphanages following the fall of the Ceausescu regime in 1989.
The position regarding cases like the Kilshaws would be made clearer by adopting the international Hague Convention, guaranteeing the rights of children. In fact, the Adoption (Intercountry Aspects) Bill, which would ratify the convention, was passed in 1999, but has yet to be brought into force. It could be used to refuse recognition to those adoptions that do not comply with the convention. Rosenblatt fears that the Government is stalling on the grounds that it would be a costly exercise to introduce a Home Office unit to police the convention. He says: "I'd be amazed - despite all the protests after the Kilshaws - that [the Government] would make it tighter to prevent irregularities, but also fairer so that English people didn't have to go abroad foraging." n
The Adoption and Children Bill
Key measures in the Adoption and Children Bill include:
Changing the law to make the welfare of the child the paramount consideration in all decisions relating to adoption.
Allowing courts to set timetables so as to cut delays in adoption court cases.
Reaffirming existing safeguards that make it an offence to "make arrangements" for adoption or to advertise children for adoption, other than through adoption agencies.
Giving all adoptive families a new right to an assessment for post-adoption support.
Placing a clear duty on local authorities to provide an adoption support service.
Legally underpinning a new national adoption register to enable faster matches between children waiting to be adopted and approved adoptive families.
Establishing a new independent review mechanism for prospective adopters who feel that they have been turned down unfairly.
Introducing a new special guardianship order to provide security and permanence for children where adoption is not suitable.
Making improvements to the legal process of placing a child.
Providing adopted people with consistent access to information about the background to their adoption, making clear the position that only approved adoption agencies and councils may advertise children for adoption, whether using traditional or electronic media.