Public Law Working Group publishes draft recommendations for best practice in adoption

The Public Law Working Group (PLWG) has launched a two-month consultation on an interim report containing recommendations for best practice in respect of adoption.

The President of the Family Division, Sir Andrew McFarlane, has “welcomed and endorsed” the publication of the interim report, while recognising there will be differing views about some of the recommendations, “as part of the process of robust debate which will help inform us as to the way forward”.

The interim report, which was prepared by a PWLG sub-group chaired by Mrs Justice Judd, considered five key areas: International adoptions, consensual adoption, access to adoption records, processes and procedures in court, and contact.

Outlining the most recent statistics, the sub-group noted that in 2022 the number of children adopted from care was 2,950, which was a small rise on the previous year (2,870) which had been affected by the pandemic.

The fall in the number of adoption orders has been mirrored by a rise in special guardianship orders, normally in favour of wider family members, the report noted.

Chapter 1 of the interim report is concerned with adoption and contact. The sub-group noted that it remains unusual for the care plan for children who are going to be placed for adoption “to propose more than indirect or letterbox contact”.

However, the report highlighted that the House of Lords Children and Families Act 2014 Committee, which reported in December 2022, concluded that the current system of letterbox contact was “outdated” and warned that “the failure to modernise contact threatened to undermine the adoption system”.

On adoption and contact, the PLWG recommended:

• A change in social work practice and training for all involved in the process (including prospective adopters) to give more focus to contact and the benefits that it can bring for many (although not all) adopted children.
• Greater support and counselling for birth parents and that the full range of contact options, including digital options, should be actively considered by the professionals and the court during care and placement proceedings.

The report also recommended more court judgments to be published in full where contact has been a feature.

The working group warned that it does not suggest that contact orders should “routinely be made in the face of opposition from adoptive parents, whether at the time of the adoption itself or later”.

However, the report added: “it is believed that opposition is much less likely where adoptive parents are given a thorough understanding of the child’s needs right at the start and are given the right support”.

Chapter 2 of the report considers access to records. The PLWG noted that being able to access records in a timely way is of “huge significance” to adopted people and their families, both in this country and abroad, and it has been “very difficult” for the courts and statutory agencies to keep pace with the number of requests that are being made.

The report warned that the issue of how to deal with applications to court for disclosure of information is something that will need to be addressed “as a matter of urgency”, as there is concern amongst judges as to “what principles to apply to court applications and inconsistencies between courts as to how they are processed”.

The report made the following recommendations, among others:

• Those affected by adoption should have access to services and support on an “ongoing basis”.
• There should be a national protocol providing for a standard procedure for applications, with a template application form and statement.
• Greater clarity as to the whereabouts of adoption records. The sub-group recommends a protocol to standardise the archiving, retention and retrieval of adoption files across the sector.

The sub-group also said that further guidance as to the exercise of the court’s discretion on an application for disclosure would be “very welcome”.

Chapter 3 of the report looks at the practice and procedures involved in adoption and placement applications – which can be “slow, distressing and often confusing for the parties involved”.

The report noted that an area in which some judges and practitioners “repeatedly expressed concern”, was in relation to applications for leave to oppose the making of adoption orders.

The PLWG said: “Concern was expressed by some regarding the impact of the current legal framework providing parents with the ability to apply for leave to oppose the making of an adoption order when a child is already placed for adoption.”

According to the report, some argued that almost all applications fail and can serve to create “further delay and anxiety for the prospective adopters”.

On this issue, the report recommended that there should be a review in 12 months’ time to consider whether the changes to legal aid make a difference to the number of applications for leave to oppose adoption orders that are made and refused.

New legal aid regulations provide for birth parents to be able to obtain legal representation for applications within adoption or stand-alone placement order applications, and “this may be sufficient to limit the number of applications in cases where there is no realistic prospect of success”, the report noted.

Chapter 4 of the report looks at adoptions with an international element. The working group warned that the current system is “extremely complex”, which makes things difficult for those professionals who are involved and also for lawyers and judges, leading to “misunderstandings and delays”.

The sub-group’s “overarching recommendation” is that the statutory framework should be rewritten so that it is contained in “one single Act of Parliament and subsidiary regulations”.

Turning to short term recommendations, the report said:

• There should be better written guidance from the DfE and Welsh Government for inter-country adoptions of all types.
• There is a tendency for local authorities, in particular, not to provide legal representation for social workers dealing with incoming international adoptions, which should be reviewed.
• Ideally legal aid should be available for prospective adopters, albeit on a means tested basis.

The final chapter looks at adoption by consent. The working group began by recognising that this description was given to many adoptions which took place in past decades “when in fact many of the birth mothers concerned came under such societal pressure to relinquish their babies that they had no choice at all”.

The report noted that what happened in the past “throws sharp focus” on the need to support birth parents to make the right decisions for them and their baby.

It added: “These days many such cases involve women who did not realise they were pregnant until a late stage and who are suffering very significant distress.”

The working group makes the following recommendations:

• The various agencies (the National Adoption Service in Wales, the Regional Adoption Agencies in England, Cafcass and Cafcass Cymru) should develop a national strategy for such cases and training.
• Each agency needs to establish a plan that ensures all who deal with such cases are fully up to date with policy, the law and local resources.
• Early permanence placements should be considered.
• Better access to legal advice for the parent(s) before the birth and that local authorities bring proceedings straight away so that issues such as informing the birth father and/or other family members can be swiftly considered.
• Better communication with the court and an understanding that such cases need to be listed as a matter of urgency.

On the publication of the report, the President of the Family Division, Sir Andrew McFarlane, said: “Professionals from all over the sector have collaborated to produce a very detailed report which looks at the issue of adoption from a number of different perspectives. The group has been led by the judiciary, but it is very much a joint endeavour of its many members who have worked extremely hard on this project. I am most grateful to them all.

“For many children who cannot be brought up within their birth families, adoption can provide the best chance of a secure future, but it is vital for the institution to evolve and adapt if it is to survive. We must listen to the experiences of those who have been adopted and their families and learn from what has worked well and what has not.

“Adoption orders are made in a wide variety of circumstances and this report seeks to address this. The report contains many recommendations, some of which relate to wider policy issues such as openness within adoption and others to more detailed issues of procedure for both domestic and international adoption. Although some recommendations will be easier to achieve than others, all are extremely important because adoption has such a profound impact on the lives of those concerned.”

Sir Andrew added: “This report is in draft only, and the group very much hope to have a strong response to the consultation process. It is recognised that there will be differing views about some of the recommendations (as indeed there were within the group itself) but this is very much welcomed as part of the process of robust debate which will help inform us as to the way forward. The consultation period will last for a period of two months until the end of November and it is hoped the report will be published in its final form, with an implementation plan, in the early part of 2024.”

The consultation will close on 30 November 2023.

Lottie Winson