We now move to our first formal oral evidence-taking session on the Adoption and Children (Scotland) Bill. Last week, members took part in three focus groups. The one that I was in was extremely interesting. Reports on those discussions will come to the committee in due course.
Thank you for giving us the opportunity to submit written evidence and to meet the committee today. I do not want to take up a lot of time with our issues because I am sure the committee has many questions. We look forward to answering those and discussing the bill with the committee.
Thank you. I will open up the session to members' questions.
In practice, will placing a statutory duty on local authorities to make plans for the provision of adoption and support services make much difference?
Yes. The current regulations make such provision, but adherence to them has sometimes been absent. Introducing a statutory duty will send a very clear message to the relevant organisations that they must make such plans. Adoption is a lifelong process, and any such plans must support it.
Are you happy for ministers to set out in regulations the information that should be kept about adoptions and the circumstances in which such information should or should not be released?
I will ask my legal colleague to answer that question. We felt that with this kind of Morecambe-and-Wise presentation we could, between us, cover the various practical and professional issues and legal details.
We are happy with the provisions in sections 39 and 40, which are similar to provisions in the existing legislation. There are also regulations that govern adoption agencies. We do not know the contents of the regulations that will be made under the bill, but we expect a relatively similar scheme to be developed. That is important because the current scheme preserves the confidentiality of adoption agency records and restricts access to them. I should also point out that adoption agency records are exempt from data protection subject access provisions, which is important in maintaining the necessary confidentiality.
I would like to ask about dispensing with parental consent for adoption. The bill is quite stark, because only one of five conditions needs to be met. One is that
You are right to highlight the fact that the bill presents a stark situation, but it is important to understand that we will have to unpack what we mean by welfare in that context. It might be helpful to develop the idea of a welfare checklist, to agree a set of common areas for discussion, which would enable the agenda to be set when people are having a discussion about what is meant by a child's welfare and why, in a specific set of circumstances, it should mean that we want to dispense with parental consent. A checklist would provide a general set of circumstances, but it would enable us to have a clear remit that focuses on the needs of the child, not just in the here and now but throughout their life, and it would allow us to use the paramount principle as a way of ensuring that. Does that answer your question?
It does, but we are currently engaged in a debate about what should happen to children of drug-misusing families, which is a specific, practical and real example of such a situation. How do you envisage the new legislation working, bearing in mind that drug dependency—if we get rehabilitation right, which is a big if—may be only a temporary issue, whereas adoption is fairly permanent? As is obvious, every child is different, but do you feel that permanence orders, rather than adoption, might be applicable in such instances? The interpretation of that section could lead people to think that the bill would make it easier for children of drug-misusing parents to be put up for adoption.
It is important to understand the process by which plans are made for children, whether for adoption or for the new permanence order. The local authority that has intervened in the welfare of the child will have a fairly detailed planning process, and decisions will be taken at child care reviews and at something called an adoption and permanence panel, which consists of people who have experience of adoption and fostering, independent people, educational psychologists and teachers. The plan for any child will therefore be scrutinised and considered on the basis of what will be right for that individual child.
That reinforces your initial point that there needs to be a checklist to assess what welfare actually means.
The bill is probably restating something that we believe is important, but it also comes at a time when we know more and understand more about the impact on children of their parents' behaviour. We know much more now about the impact on children of living with domestic violence and the effects that trauma can have, about the impact on children of maternal misuse of drugs or alcohol while the child is in utero, and about the impact of early adverse experiences on the physiological and emotional development of children.
You do not think that legislation has shifted the balance towards the rights of the child; you think that the status quo has been kept.
It is holding things in balance—and there always has to be a balance.
I will ask about the issues the courts and adoption agencies have to take into account under section 9 when considering adoption decisions. What impact will the proposed changes have on the adoption process? Are there other issues that you think the courts and adoption agencies should have to take into account when considering whether it is appropriate to place a child for adoption?
We are reasonably satisfied with section 9, which restates some of the existing provisions in section 6 of the Adoption (Scotland) Act 1978, which relate to the welfare of the child being paramount throughout life, the views of the child and the fact that an order should not be made unless that is the appropriate thing to do.
I want to ask about adoptions by unmarried couples. You are in favour of the provisions that enable unmarried couples to adopt a child jointly. There is nothing in existing law to prevent one person in an unmarried couple adopting a child, while the other shares in the child's upbringing. To what extent does the current restriction on joint adoption deter unmarried couples from adopting? Will the proposal have a real impact on extending the pool of available adopters?
It is more likely than not to extend the pool of people who come forward to adopt. You are absolutely right. People in a partnership have been able to apply to adopt: one person has been able to become the adoptive parent and the other person in the partnership has been able, through other legal orders, to play a role in the child's life.
You do not have any quantification of the growth in the pool of adopters that the new provisions might cause.
No. It would be irresponsible to say that the proposal will mean that hundreds more prospective adoptive parents will come forward—would that any provision could make that happen. We would all be delighted if the bill brought about a resurgence of interest in adoption, especially if that helped the children who most need adopting, who are older children and children who have experienced considerable adversity.
There is obviously a certain sensitivity around the proposal. Have you encountered any particular problems in dealing with children's carers who are in unmarried or same-sex relationships?
I will unpack the question, if I may. With people who are unmarried and who are in a partnership, whether they be of the same sex or of opposite sexes, it is inevitable that one person—the person who is the adopter—will be seen as the senior partner in the relationship and the other will be seen as the junior partner, if I can use such business imagery.
You mentioned stigma, which might be associated with joint adoptions that are carried out by same-sex partners. Do you have any reflections that you wish to share with us on that issue?
I would be very sad if we did not proceed with legislation that would be beneficial for children simply because we believed that its implementation would be affected by the bad behaviour of other people. If we chose not to proceed with the bill on the ground that children would be subject to bullying or name calling in the playground or to having other people make judgments about them because of the sexual orientation of their parents, we would be doing children a disservice.
You say in your submission that you are generally in favour of permanence orders but that you have concerns about how they might work. Some of the adoptive parents whom we met last week expressed concerns about the division of responsibilities. If a court has allocated some responsibilities to birth parents, some to the local authority and some to the prospective adoptive parents, it is difficult for the prospective adoptive parents to know from whom they should obtain permission for a child to go on holiday or sleep on the top bunk of a bed. Why are permanence orders good in principle? What is wrong with the way in which the Executive has presented them?
The permanence order is a new measure, so it is hard for all of us to get our heads round it. Unlike some orders, it is intended to be both a process order and a state order. For some children, a local authority will seek a permanence order to progress planning in relation to a child and to signal a clear intention that a child's future no longer lies with the family into which they were born, that they will not return to that family and that their future may lie with prospective adoptive parents and the application of an adoption order.
You asked specifically about the situation of a child on a permanence order who is living with prospective adopters; however, some children may be living long term with a foster carer. It is important to make it clear—and, as far as I can see, there is nothing in the bill that does so—that when a local authority makes a permanence order it has the final say in any dispute on a day-to-day basis; otherwise, there will be endless applications going back to court about who can do what. That needs to be made clear.
Your written submission makes the point that it is not clear that local authorities will have the controlling responsibility.
No. We would like some sort of provision equivalent to those in the Children Act 1989 and the Adoption and Children Act 2002. They deal with different types of orders, but where the same issue arises in the English and Welsh legislation, a ranking system is provided for. I am sorry that I do not have the section numbers at my fingertips; I can find them out.
You express concern also about the possibility of a permanence order revoking adoption. That strikes me as a little strange. I cannot envisage a real-life situation in which that would happen.
I hope that that might be the subject of an amendment at stage 2. Under section 87, certain existing orders are revoked when a new permanence order is made. Although I would wish some variation of the section 11 orders and believe that most section 11 orders should fall on a permanence order, I think that an adoption order should not fall. A permanence order should not and will not revoke a birth parent's responsibilities and rights, and an adoptive parent is, by virtue of the earlier adoption, in the same legal position. Their parental responsibilities and rights will be interfered with, to a greater or lesser extent, by the permanence order just as a birth parent's responsibilities and rights will be—that is as it should be. However, at this stage, birth parents and past adoptive parents should be on a level playing field.
It is possibly a drafting error.
I would not necessarily say that. In drafting a complex piece of legislation, it is very difficult to get everything right the first time. We have the opportunity to give evidence and submit amendments, so I am not expressing shock or horror; I am just asking for that provision to come out.
You are also a bit concerned about section 84(5)(a)
Yes. We do not see the permanence order as a replacement for the freeing order. Freeing is a very different thing: it is a non-mandatory process en route to adoption, albeit that—for a variety of reasons—local authorities often use it. As I said, freeing orders are non-mandatory; they apply only in the case of adoption.
Right. I was a little confused on that. The policy memorandum says:
Yes. It is a replacement in the sense that it may be used in the sort of hotly-disputed case in which the local authority feels strongly that a child needs to be safely removed, permanently and legally, from a family and put up for adoption. In such a case, the authority may well go down the route of making an early permanence order application to move things along. In that sense, the order may be seen as a replacement for freeing, but it is not a like-for-like replacement. That is why I would not have used the word "replace".
I see that you welcome the provision for regulations about fostering allowances. What impact will that make? How important is this move?
It is very important. You will be aware that there is a considerable shortfall in the number of foster carers who are available throughout Scotland to meet the needs of children who need placement. Also, work that we and our colleague organisation the Fostering Network have done has estimated that, to provide a properly funded fostering service that fulfils all our aspirations, we would need increased investment of about £65 million, which is not exactly a small amount. That will give you a sense of where we are coming from.
Should the same kind of regulation also apply to kinship carers? It might not be a fostering allowance as such, but perhaps there should be some kind of support. We are talking about adoption being an option when the parents are unable to take care of their children's welfare needs, but there is a gap on kinship care and the extended family as one of the routes that could be taken. If such carers are not to be given the same kind of support as foster parents or prospective adoptive parents, it would seem to place them on a lower level of importance. That is my view; what is yours?
I know that you will hear evidence from one of my colleagues about family group conferences. That is an approach whereby, when children first become looked after or there is a risk of them becoming looked after, we bring kith and kin together to consider who might be able to offer something to the child. That is an important approach, but how it is supported financially is an extremely wide and complex question. The availability of financial support for such care is not only within the remit of the local authorities, particularly the social work departments; it takes us into state benefits. Local authorities were not set up to provide benefits; they exist to promote people's well-being and welfare, not necessarily to address their financial issues.
The bill's provisions on fostering are about allowances and nothing much more. Are you disappointed by that and would you have preferred there to have been more on fostering in the bill?
We have high hopes of the regulations and guidance on that because there is probably not a lot wrong with the current legislation on fostering. In the light of more than 10 years of the Children (Scotland) Act 1995, we need to address some of the issues that have come up through practice. One important measure is to use regulations to address fostering allowances.
We see the permanence order provisions as providing a big support for long-term fostering. Although they are not called fostering orders, we see them as supporting the fostering system.
My question relates to the questions that were asked earlier about the provision of information. Can you expand on the importance of the disclosure of medical records? The ability of ministers to prescribe when the medical records of birth parents should be disclosed would be controversial; however, it is important that adoptees have access to their family's medical history. Why is that important?
You have already highlighted the issues. We hope that, when a child or young person becomes looked after and accommodated, the maximum amount of information will be obtained at that time about the health and welfare of their parents. If the parents' situation changes, we hope that that information will be shared. However, parents sometimes find themselves at loggerheads with the local authority that is making plans for the child and refuse consent for everything—that is a way of expressing their distress and anger. Although I recognise the legitimacy of those feelings, as children get older—and increasingly as we understand the nature of inheritance regarding predisposition to certain illnesses—it is sometimes worrying for them not to know the health background of their parents.
I have one other question, on an issue that was touched on earlier by Fiona Hyslop. The nature of adoption is changing from families giving up their children for adoption to more children being removed from families without consent. Is it fair to say that, in some of those cases, the process takes too long—it can extend over several years—and can be damaging? Will the bill help to address that situation?
I agree that the profile of children who are being placed for adoption now is hugely different from that of children who were placed for adoption 25 or 30 years ago. That is one of the challenges. We are talking not about relinquished infants, but about children who have been subject to physical, emotional and sexual abuse and to neglect and who have made at least two moves—from their birth family into care and from care to possible adoptive parents—although it is likely that they have made many more moves than that and have had many care givers. We are dealing with a different cohort of children, which is why the adoption support that I mentioned is important.
Yesterday, the Finance Committee considered the financial memorandum to the bill. We are concerned more with policy, but the Finance Committee discussed the resource allocation to post-adoption services. Your bigger-picture paper says that about £60-plus million is required in broader terms. Even a reasonable estimate that 20 per cent of that is required would still mean that £12 million needs to be found to address your concerns. Does the financial memorandum significantly understate the resources that are required to meet even the bill's aspirations? Should it avoid the assumption that savings could be made, because that could have an impact on other children's care budgets?
Yes—that is exactly what we tried to say in the information that we provided to the committee. In answering Mr Macintosh's questions, I tried to describe a profile of the children whom we know about—those who are looked after and accommodated. The fact that they will be subject to a permanence order or placed in adoption does not change the nature of those children, who have had some of the most adverse starts in life.
My question is about step-parent agreements. In 2004, there were only about 400 adoptions, but tens of thousands of children—if not more—are living in stepfamilies. Why do you think that step-parent agreements were left out of the bill? What problems will be caused by leaving stepmums, stepdads and their stepchildren in limbo?
The situation at the moment is that if a child is living with one of their birth parents who has remarried, so that there is now a step-parent, the new parent may take on a particular responsibility for that child through adoption. In our view, that potentially cuts out the other birth parent and members of their extended family—grandparents, uncles, aunties and cousins. To maximise children's sense of belonging to a family, it is helpful not to cut people out. The adults should make an agreement—with support or mediation, if necessary—so that there is no question of a child having to choose whom they see as their family. Everyone should work together. I know that that is a counsel of perfection, because we are saying that people who may feel upset, angry and anguished about the end of the adult relationship should work together. However, it is important for the sake of the child's welfare that they should do that. We should look to create the opportunity for step-parent agreements.
What legal powers would step-parents have under such agreements? Would such agreements be more about them and less about the children?
I refer you to some of my earlier observations about children needing to know that the people who are looking after them on a daily basis can act on their behalf. I hope that the agreement would specify that the person who was living with the birth parent would exercise joint responsibility for day-to-day matters, but that the other birth parent should be involved in critical issues, such as a serious health problem. Such issues would need to be examined in the context of the step-parent agreement. The measure was suggested during the passage of the Family Law (Scotland) Bill, but the suggestion was not accepted. The policy review group suggested that the measure be considered as part of the present bill. The problem is that, until we have a basic principle that we will consider step-parent agreements, it is hard to say how they would work in practice.
They need to exist in family law first.
Indeed.
My understanding was that the measure was rejected because an appropriate place could not be found for children's views. Is that an insurmountable problem? Is the issue that children would be put in the vulnerable position of choosing and might resent the step-parent?
I do not know. However, my general take on such issues is that we consistently underestimate children's ability to understand situations and express a view on them. The adults, whether professionals, parents or step-parents, have a responsibility to create a situation in which children can express their views and do not have to second-guess what their mum, dad or stepdad wants them to say. They need to be able to say how they feel.
Your submission suggests that a positive obligation should be placed on the courts to consider contact in adoption cases. At the focus group that I was at last week, one issue that was raised was that the contact provisions that might be appropriate for a child at one point in their life might not be appropriate at another point. Is there a danger that, if we require courts to consider contact, the system might end up being too rigid and might operate against the welfare of the child?
You have expressed the dilemma clearly. In my opening remarks, I said that adoption has changed hugely. On contact, practice and philosophy have changed a good deal in the past 25 to 30 years. One difficulty is that the bill comes at a time when practice is changing and research is on-going. The bill must be fit for purpose for the present, but we cannot have measures that will hamstring us in future. To be realistic, the legislation is likely to be on the statute books for the next 20 to 25 years.
Given our careers, we are probably the weird cousins, aunties or uncles.
As we understand the chapter, the intention is more or less to duplicate the existing system for intercountry adoption. However, as we said in our submission, there is no provision for applications for Hague convention adoption orders for people who have gone abroad to adopt a child but who come back to Scotland to adopt; we need such a provision. The current provision is section 17 of the Adoption (Scotland) Act 1978, which relates to a slightly different type of adoption order.
I thank Barbara Hudson and Lexy Plumtree for their useful evidence and written submission. I will suspend the meeting for five minutes while we change witnesses.
Meeting suspended.
On resuming—
On our second panel this morning are Eddie Follan, head of policy at Children in Scotland; Maggie Mellon, director of children and family services at Children 1st; Tam Baillie, assistant director of policy and influencing—that is an interesting title—at Barnardo's Scotland; and Joan Atherton, service manager at the Scottish Adoption Advice Service.
Our submission was brief. I will concentrate today on the role of the wider birth family in making decisions about adoption and permanency for children.
I follow Maggie Mellon's line in that we have a specific interest in advocacy for children. Our colleagues on the previous panel covered many of the technical aspects of that.
We have a general interest in the policy of the bill, about which I am happy to answer any questions. I am particularly interested in fostering. We manage three fostering services that have placed about 150 children. We also have an interest in the adoption side of the bill.
We provide services to 15 local authorities in Scotland and we work with about 500 people each year who are affected by adoption and permanency. I will speak about the need for adoption support services and how they are resourced.
Thank you for those opening remarks. I am sure that those issues will be picked up during questions. Questions might be directed to individual members of the panel, so do not feel that you have to answer every question that is asked. Obviously, if you feel that you have a contribution to make, feel free to do so.
My first question is really directed at Children in Scotland and its concerns about the recognition of the rights and views of children under the age of 12. Could you expand on those concerns?
It is always a difficult point. We are saying that the bar—if you like—in legislation is set at age 12 and it is presumed that children who are over the age of 12 have capacity and can consent to an adoption order, for example, which is fair. We also have the Age of Legal Capacity (Scotland) Act 1991. We need to take into account the views of younger children. Although there has to be an emphasis on age, there should also be an emphasis on maturity.
Do you have a follow-up question Rosemary?
Do you want me to go on to the fostering issue?
We will come on to that later.
There are great pressures on the foster care system at the moment; Barnardo's mentioned that. We know that there is a shortage of foster care and that because of current problems with drug misuse and so on, the services will be pushed further. Can you give us a bit more information about your concerns and say how we can improve the situation?
I should say at the outset that we are positive about the legislation and endorse much of the evidence that you have heard this morning. I am sure that you will hear our views later.
Should ministers be able to lay down in regulations what information must be kept about adoptions and the circumstances in which that information should or should not be released?
Can you expand on the second part of your question, about the circumstances in which the information will be released?
The proposal is that the matter should be covered by regulations made under the bill later, rather than by the bill.
I agree with what Lexy Plumtree said. Adopted people should have access to information. We do a lot of work on the matter. It is important that adopted people feel that they have the right to access information.
Are there problems under the current legislation that need to be addressed?
In relation to information?
Generally. Does the bill address the current problems?
Like Barbara Hudson, I would welcome medical information from the birth family being released to adopted people. Adopted people would very much welcome that development.
I attended a focus group with birth mothers last week. A fundamental need for them is to know whether their child is still alive. Can anything be done in the bill or in guidance to address that issue?
The bill should provide a way for agencies that are acting on behalf of birth mothers to access that information. However, I accept the fact that the rights rest with the adopted person, and the adoptive parents when a child is involved. They should have the final say. The current legislation enables agencies such as us to act on behalf of birth mothers. That is sufficient. We do not need to give birth parents extra rights, apart from the one small matter that I mentioned.
The written submission from Children 1st says that the proportion of children in kinship care as opposed to stranger care is 75 per in New Zealand but only 12 per cent in the United Kingdom. In other countries, the proportion is over 30 per cent. What do you want the bill to do? Do you want kinship carers to be given specific adoption rights, or do you regard kinship caring as an alternative to adoption?
This relates to sections 6 and 9 of the bill. Before a decision is made to place a child for adoption, the bill suggests that an adoption agency should be satisfied that no other arrangement is better or more practical. However, the bill does not say explicitly that efforts should be made to try to keep the child within the wider family.
Does that mean adoption or—
It could indeed mean adoption.
Or could it mean, to use the older term, private fostering?
Well, it could be achieved by means of an order or by means of a voluntary agreement of the parents and others concerned.
Does "kinship carer" have to be defined in the bill, to give such carers legal status similar to that given to foster parents?
No, I do not think that that would be necessary. There could be legislation on adoption, on fostering and on securing a child. Sometimes it might be necessary to secure a child legally so that they are not living with their birth parents but with other relatives.
I suspect that historically more young people were looked after by family members and that in previous decades the figures for kinship care were similar to the current figures in New Zealand and America. Why has practice in the United Kingdom diverged over the piece, with the result that we have so few kinship carers?
Some kinship carers might not be counted. The Scottish Executive is about to publish the results of the audit of kinship care in Scotland—Jane Aldgate is involved in that work. We might find that kinship care is not included in our figures because it is not formally recognised as it is in New Zealand.
I understand that guidance indicates that agencies should consider family members, but even now—
They do not.
Is that the understanding of other witnesses? What do you think of the proposals from Children 1st?
Barnardo's Scotland contributed to the research on kinship care arrangements, which are topical in the context of substance misuse. We might increasingly have to consider alternative care arrangements. Kinship care is happening by default and an increasing number of youngsters, particularly youngsters from substance misusing families, are being cared for by members of the extended family. It is worth considering how we routinise such arrangements without killing off the key element: family members want to take care of their problems. The last thing we want to do is discourage such an approach by overregulating, but we want to promote kinship care within safe boundaries.
There is an issue about funding and support. If we want to recognise families as being special, we should not necessarily treat them in the same way as we treat foster carers. However, if kinship carers are not treated in the same way, will they be regarded as second class?
Research indicates that outcomes are very positive for children who are accommodated in kinship arrangements, which might be an argument for having a different threshold for kinship care assessments. However, we are in the early days of trying to routinise how we access that untapped resource.
Children 1st manages family group conference services in nearly half the councils in Scotland, so we have experience of relatives coming forward to offer care. We find that people do not ask for the moon and we would not argue that fostering rates should apply to kinship care. However, we would apply the rule of thumb that no family—particularly a grandparent—should be disadvantaged as a result of taking on grandchildren or family members. Whether people are working or are pensioners, they should not have to sacrifice the standard of living that they expect to enjoy. For example, carers should not have to do without their yearly holiday or weekly night out.
I add a note of caution. The approach that is proposed should not involve a long timescale in which things drift and decisions are not made. People forget that childhood is short. The investigation into members of the birth family who might care for a child should be carried out quickly and should not hold up the process of finding a permanent home for the child.
It takes six weeks to organise a family conference—from the initiation to the meeting itself. Sometimes the conference is just the end of the process and is not needed, because the exploration of the issue with different family members has provided a solution.
Maggie Mellon mentioned the fact that 90 per cent of children return to their parents—usually their mother—after being in care.
One can see this issue from both points of view. That is why we emphasise the importance of the wider family. If a drug-using parent is clearly not giving their child adequate care, there should not be a simple choice between staying with that birth family and coming into public care. The outcomes for public care are not good either: you sometimes find that you have replicated the very situations that you were supposedly rescuing a child from.
I am sorry to have to bring the discussion back to what happens when people leave care, but we have to remember that a significant number of youngsters—I do not want to get into the argument about percentages—leave care to live independently, not to return home. They might eventually return home, become homeless or something else, but, initially, a significant number will live independently. That is why my opening comments were about the age at which youngsters leave care. We have to examine our practice with regard to fostering and other forms of care in relation to those youngsters.
I think that we have explored those issues quite widely. We should return to issues relating to adoption.
In what way will the proposals to allow joint adoption by unmarried couples benefit children who are waiting to be adopted? Barbara Hudson told us that she thinks that, from the point of view of the child, the issue is not so much to do with extending the pool of adopters as to do with normalising family relationships to ensure that both parents have equal rights and responsibilities. Do you agree with that point of view? Is there any evidence to back it up?
I agree with Barbara Hudson that ensuring that both parents have the same legal responsibilities in relation to a child will promote stability.
The one thing that I would add is that the Scottish Executive has agreed to revoke regulation 12(4) of the Fostering of Children (Scotland) Regulations 1996, which debars same-sex couples from fostering. That is all well and good—we agree with doing that—but that approach will leave a difference between the revocation of the bar on adoption, which is in the bill, and the revocation of the bar on fostering, which will be in regulations. It will not make any material difference, but that demonstrates the different ways in which we are dealing with adoption and fostering.
So the bill will not affect the position in relation to fostering. Are you saying that the regulations will follow on?
The Scottish Executive has already made a commitment that the regulations will follow on. We hope that they will follow on fairly swiftly, because it would be inappropriate to have different legislation on adoption and fostering. That might be an issue this year, but we hope that the Scottish Executive will follow through on its commitment.
You will be aware that the general issue is contentious to some extent. Are there any downsides to adoption and fostering by unmarried couples or those in same-sex relationships? Have you come across any downsides to such relationships for the care of the children?
That is not something that I could comment on. To pick up Barbara Hudson's points, there could be stigma, but that can be an issue for adopted children in general. I do not have any specific evidence or examples.
MSPs will be lobbied by elements within and individuals committed to faith organisations. How do you, as people involved at the sharp end, challenge the assertion that it is of substantial disadvantage to children to place them with unmarried or gay couples? That is the nub of some of the difficult public debate.
That debate is really about the child's welfare. It is also about the child's views and what the child feels is best for them. In challenging such views, we have to consider whether the relationship is stable, regardless of the couple's sex. There is a process that must be gone through; we are not talking about arbitrary adoption and saying that just because a couple is a same-sex couple, they can have a child. Regardless of anybody's sexual orientation or whether they are married, we would argue firmly that the child is at the centre of the process and they are the one whom it must benefit. We refute the arguments that there is something wrong with such relationships or that they are unstable or would harm the child in some way. As you can see from our submission, 40 per cent of looked-after and accommodated children have mental health and emotional problems. What could be worse than that? Will the situation improve for them if they move into loving, stable, family homes, or will they just have to live with those problems?
When we spoke to adoptive parents last week, they talked about the rigour of the assessment process and the assumptions that social workers were already working on. The idea that some people would leapfrog the system, suddenly seize children and drag them into a circumstance that would forever condemn them to damnation in hell strikes me as absurd, but that argument is being used and we need to challenge it.
If it is of any assistance, not all faith groups have the same position on the matter. It comes down to the needs of the child.
We would agree that the issue is what is in the best interests of the child. The same tests would have to be met, whatever the situation in which a child would be living. The process is lengthy and anyone who had just a short-term interest in adoption would be quickly dissuaded from pursuing it. Sometimes wrong decisions are made in assessing heterosexual married couples; some of them are not right for adoption and sometimes those adoptions fail. Over the years, social work and other professions have learned from their mistakes. As Barbara Hudson said, practice has developed and people are now more aware of what is likely to make an adoption fail or to make a couple or a family not work. Those are the key issues, rather than any particular characteristic of a family home.
I have relatively little experience of the research base. If I was looking for research to justify a position that said that a decision to place a child with, for example, an unmarried couple, was inappropriate, would I find much to back up the claim?
That question might have been better addressed to the BAAF when its witnesses were before you. I am aware that such placements are practised in other jurisdictions; even in this jurisdiction, they have been successful. Currently, one partner applies to adopt and the adoption goes forward on that basis. I do not know what the statistics are and whether the failure, breakdown or outcome rates are worse for such families than for other families. I suspect not. I suspect that you would find a similar failure rate across the piece. I do not know whether there is a significant enough number to judge.
There may be unmarried or same-sex relationships in the wider family.
Absolutely. We would say that each case should be taken on its merits.
Other than the issue of kinship, are there any specific elements that you think should be taken into account by the courts or the adoption agencies before considering whether to place a child for adoption, particularly in relation to section 9 of the bill? What impact do you think the proposed changes in the bill will have on the process?
Does section 9 refer to the views of any relative?
That is in section 10.
Our concern is that the adoption agency must satisfy itself that adoption is the best course. We would say that in order to do that, the wider family should be considered. Family group conferencing is a tool for doing that. We are not saying that you must make that a requirement under the bill, but we would like the bill to say that there has to be evidence that the wider family has been considered. There has to be evidence that grandparents and siblings have been approached and that their circumstances have been established. Internationally, family group conferencing has been developed as the best way of collecting that evidence. There have been proven results from research, not just from New Zealand but, more recently, from Scotland, Scandinavian countries and Ireland. The guidance should say that that is the best way to demonstrate that the family has been involved. That would reassure families, in terms of their trust in services. Especially in the case of drug-using parents, the wider family would want the opportunity to say what they can offer before the child is taken for adoption. That is why we would like a much stronger reference in the bill to the wider family; we would also like the guidance to set out clear recommendations on family group conferencing.
Does any other organisation wish to comment on the provisions in the bill on the considerations that the courts must, in satisfying themselves, take into account?
I spoke to some of the civil servants about this, and they realise the difficulty of having a limit, if you like, on the age at which a child's views can be taken into account. They said that, often, it will be down to the sheriff to decide what is in the best interests of the child. We are not calling for the age limit of 12 to be lowered, but we need to explore whether what the sheriffs take into consideration can be regulated. I would need to check that out, but it is an idea that we have mooted with the civil servants.
What practical differences do you think that the proposed changes to the grounds for dispensing with parental consent will make? Do the new provisions strike the right balance between the rights of the birth parents and the rights of the children?
Yes. I do not have any concerns about that.
Our concerns have already been stated, and I will not overstate the case. If the consent of a parent is dispensed with, there should not be an automatic assumption that adoption is the best option. The welfare of the child may be best served within their extended family, and that should be clearly stated somewhere.
The written submission from Barnardo's supports the simplification of the legislation, although the bill is quite brutal. All the agencies are approaching the issue from the point of view of the children; however, we also have a responsibility to consider the rights of other people. Whether or not you agree that that is a good thing, do you agree that the balance has shifted more towards the agencies that seek fostering and adoption and away from birth parents' rights?
I think the opposite. The evidence shows that too many children have been affected by decisions not being made early enough on their behalf and have drifted in the system. They have been placed with adopters years too late and there have been difficulties with attachment—such children do not know where they are.
The proposal could result in a huge swing away not from the rights of parents, but from the interests of the child within their broader family. It is important for our culture to respect and look at the extended family when we are considering the interests of the child. We consider the birth parents' right to put a child up for adoption without being encouraged to consider what their wider family can offer and the right of the child to be seen as an individual. We are all very much connected to and identify with kinship groups, networks and communities; yet, we have a narrow definition of the welfare of the child. The interesting issues are what the best interests of a child are and what best serves their welfare.
Your written submissions do not make much mention of permanence orders, although Barnardo's says that it is generally in favour of the idea of permanence orders. Do you have any further comment to make? Do you, like the BAAF, feel that although the orders are a good idea in principle, the way in which the bill is drafted is slightly counterproductive?
Because my organisation is not a placing agency, I cannot really comment on that question other than to say that I agree with the BAAF that permanence orders seem to be a good step forward.
Children's involvement in permanency planning has been notoriously patchy. Professionals have found it difficult to involve children in the process, and research has suggested that, when such involvement takes place, it is not done particularly well all the time.
The courts will judge who will be responsible for making certain decisions under a permanence order. Would an advocate have a role in that respect?
They should be involved at the earliest possible opportunity. Some might argue that we are adding another layer of professionals to the system. I am not saying that an advocate would not look after the child's best interests; they would simply represent a child's views, regardless of what they were. Every other professional involved in the process is, quite rightly, tied by professional interest. Many young people have told us that all they want is someone who will sit with them, listen to them, be on their side and, if they choose, represent their views to other parties. That is not to say that the professionals are not on their side, but young people often have the perception that the professionals are there to look after them. That is not the role of an advocate.
Although we support the introduction of permanence orders, I should point out that, according to the financial memorandum, because the orders will make adoption easier, costs will be offset and, in fact, the provision will be cost neutral. However, given the priority that local authorities give to adoption support services and the need to expand such services, we question that assumption. After all, we already provide services to nearly 15 local authorities. It is difficult to say what impact the bill will have, but it might result in an even greater increase in demand for adoption support services, which are already the subject of increased demand.
A similar point was raised when the Finance Committee considered the bill's financial memorandum yesterday. I am sure that those issues will be reflected in the report that this committee receives from the Finance Committee.
It might. However, we need to look at the issue more closely. At the moment, all youngsters who leave care have been the subject of statutory supervision—there is a statutory duty on local authorities. That has still led to very patchy coverage of services for that group of youngsters. However, the issue is worth considering.
Irrespective of statutory duties, might the relationship issues mean that such youngsters, having had a stable relationship with a family, find it easier to receive support later on?
Yes. That is why it might be worth looking at the particular caring set-up that fostering or family care provides. We might be able to improve matters in that setting. We will certainly consider that in our discussions on what is possible under the framework of the bill.
I believe that the permanence order is a good step forward, but there is anecdotal evidence that authorities sometimes do not plan for children to be adopted because of the resource implications. Although resources can be targeted at fostering, adoption support is much harder for authorities to ring fence. As Barbara Hudson mentioned, there is a need for therapeutic resources to help families with contact issues and to help children to understand their adoption. In some situations, although adoption could be the best option for a child, I think that authorities have not gone down that route because of the resource implications.
You have just answered some of my questions, but I want to explore the issues further. I thank Barnardo's for facilitating last week's meeting with adoptees, which Adam Ingram and I found beneficial and informative. There is anecdotal evidence that fostering is a more attractive option for local authorities because it attracts more financial support. Is that because of the current statutory bases of adoption and fostering or is it because of the specific allowances that they attract? Can you be more precise about why fostering is more financially attractive to local authorities?
I guess the reason is that, if a child is looked after, the authority has a direct responsibility but, with adoption, the child ceases to be looked after and becomes the parents' responsibility. Adoption allowances are not on the same level as fostering allowances, although we hope that that will be addressed through regulations. Local authorities cannot pull in the necessary resources for adoptive families, so the families are left to look for them.
I ask because behind the suggestion that we need to address the fact that fostering allowances are more generous than adoption allowances is the implication that we should increase adoption allowances. To follow the logic, if the increase in adoption allowances did not come directly from central Government social security payments, and local authorities had to find the resources, adoption would be even more unattractive to the authorities. Is that a fair comment, or do I misunderstand how local government finances work?
I am not sure.
You might want to ask that question of the minister who is responsible for the bill.
We might also want to ask the local authorities when we speak to them.
I am just trying to understand the difference between how the money comes in for fostering and how it comes in for adoption. There is clearly a difference between the two—the fostering money has a firmer basis.
I do not want us to go down the road of contact orders.
Sorry. The BAAF suggested that there should be a positive obligation on the courts to consider contact in adoption cases.
We think of that as being done through contact agreements, which can be changed as the child's needs change, rather than through court orders, which can become fixed in time.
None of the adoptees whom you are helping and to whom we spoke last week want their birth parents to have the right to contact them, but they would all welcome their birth parents trying to contact them and being made that offer of contact. They all said that they want the support that local authorities and organisations such as yours offer to be reviewed constantly, not just as a one-off, because people's circumstances and needs change at different stages in their lives. That might not be the sort of thing that can be included in legislation; perhaps it needs to be in guidance. Is there enough in the bill about that sort of issue, and about the fact that birth parents could be encouraged to contact their birth children—or at least could be given the opportunity to contact them? Should they have the opportunity, not the right, to do that? Should adoptees, even as mature adults, still have the right to access support services and to have their needs reviewed regularly?
Very much so. There is a sense that the bill is stuck in time. Although we are talking about adoption support, it seems to focus on the first three years or on what happens at the time of placement, when an adoption support assessment is done. There should be opportunities for that assessment to be reviewed. If resources were available, all parties affected by adoption would know that they can go back and get the support that they needed when they needed it; it is a question of when rather than if.
Another need-to-know issue arises when adoptions fail. There is a case for parents whose consent to adoption is dispensed with on the grounds of their inability to care for their children at a particular time in their lives to have access to information that an adoption has failed. That could be damaging in some cases, but it has always seemed to me to be a complete injustice that a child can be removed for adoption by a local authority, then have a couple of failed adoptions and spend most of their life in a succession of different care placements. It is unjust that the original family, having been deprived of the opportunity to care for the child, is not then revisited. The birth parent might have wanted to give up the care of the child, but often that is not the case. I know that there is a birth link register in Scotland, which allows people to register if they want to share information with one another. That could be extended and used for on-going adoptions.
I want to ask about two other issues that arose last week; I know that Fiona Hyslop wants to ask about them too. First, there was a specific issue about birth certificates. At the moment, the full birth certificate of an adoptive child—not the abbreviated version—has a bold statement at the very top stating that it is the birth certificate of an adopted child. All the adoptees who gave evidence to us felt that that was stigmatising. The birth certificate is one of their first ways of accessing information and they all made that point about it. Could the bill do anything about that, directly or indirectly?
Yes, I very much back that. For adoptive parents, the issue is knowing where they can go for support and accessing people who will be aware of the issues that they are dealing with. Just now, if the links with the local authority fostering and adoption team have ended because the adoption has gone through, the parents can access local social work services for support, but they often do not meet people who understand the issues that they face. Adopters also sometimes find that health services and mental health services do not understand particular adoption issues, and they feel that they are failures or that they are blamed for the problems that their children experience.
I agree completely that the adoption, fostering and care system needs more resources, but I add the note of caution that if resources are not given to the preventive side as well as to the side that supports families in caring for their children, you will find the demand for resources increasing on the preventive side. That is why it is important to support the wider family in their care of a child; not because other options are more expensive—although they are—but because that stops the demand going over to the higher end of the system, where outcomes are not so good.
I was struck by what Joan Atherton said about the bill being stuck in time, in the sense that it probably addresses what will happen in the future. The birth mothers whom we met last week, when Birthlink hosted a focus group for us, spoke in a similar vein. Everybody has made the point that, because adoption is not a one-off event but a lifelong process, the bill will have to address what has happened in the past as much as what will happen in the future.
There needs to be more awareness, although there is a lot about adoption in the media. We used to get more phone calls after soaps ran particular stories. There is more awareness, but birth mothers, adopted people and adopters have to feel that it is okay to ask for services, which should be available to meet their needs.
That might be a matter more for policy than for legislation.
Yes.
There are no more questions, so I thank Eddie Follan, Tam Baillie, Joan Atherton and Maggie Mellon very much for coming along this morning to give evidence. I thank them also for their written submissions, which will be taken on board by the committee. We will take further oral evidence on the bill at our next meeting.
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