All change for children law

At the time of writing the Children and Families Bill (the Bill) has reached the Committee Stage in the House of Lords. The Bill proposes a number of important changes to the Children Act 1989 (ChA 1989) and the Adoption and Children Act 2002 (ACA 2002) that will have a significant impact on parents in both a public law and private law context. This blog post focuses on changes that will be of particular interest to family lawyers.

Public law

Clause 1 – placement of looked after children with prospective adopters or 'fostering for adoption'

This clause provides for ChA 1989 to be amended so that where a local authority considers adoption as an option for a child they must consider placing the child with a local authority foster parent who has been approved as a prospective adopter.  The government has also indicated in its impact assessment that to complement this change it  intends to introduce regulations to make it easier for local authorities to approve prospective adopters as temporary foster carers for a named child.

Clause 1 provides that where a local authority is considering adoption as an option for a child it does not need to comply with ChA 1989, ss 22(C)(7)–(9) (which set out the matters a local authority must consider when deciding on an appropriate placement for a child). Therefore, a local authority would not, when considering adoption as an option have to give preference to a placement:

  • with a relative who is also a foster carer
  • which is near the child’s home
  • which does not disrupt their education or training
  • which enables the child to live with a sibling
  • which, if the child is disabled, is suitable for the child’s needs; and
  • which is in the local authority’s area

Furthermore, the local authority will be authorised to place a child on the Adoption and Children Act Register, rather than having to wait for that child to be placed for adoption (clause 6).

This is, in my view, the most significant and potentially damaging change proposed by the Bill. One can imagine adoption being considered as an option by a social worker at a pre-proceedings stage, or even pre-birth, and parents being asked to agree to their children being accommodated with proposed adopters under ChA 1989, s 20 without first having the benefit of legal advice about the implications of this. The local authority would not have to give first consideration to a family placement, or give priority to a placement near the child’s sibling, they would instead be under a statutory obligation to consider placement with potential adopters and would not have to give preference to a kinship placement. This would be the case even if adoption is just one of the possible options for the child.

The reality is, that with parallel planning, and particularly for young children and babies, adoption will almost always be one possible option, even if a parent has a viable chance at resuming the care of their child, or if there is a promising kinship placement.

The effect of placing a child in a placement such as this at such an early stage is that once the court comes to make a final decision about placement, the child may have already formed a bond with their carers and, if threshold is met, at the disposal stage it may be too late to consider rehabilitation back into their family if their placement is stable.

From the point of view of the foster carers/possible adopters, they may form a closer attachment with the child as their fundamental wish is to adopt rather than foster, only to then lose the child when the court makes a decision that, for example, a kinship placement is in the child’s best interests.

For parents this provision will make it even harder to satisfy a court, or indeed a local authority, that they are the best option for the child at the conclusion of care proceedings. I would question whether the direction the Bill takes is compatible with the recent spate of Supreme Court and Court of Appeal authorities that remind us that adoption should be a 'last resort' and only permissible if 'nothing else will do'.

Clause 15 – care plans

Another change that goes hand-in-hand with the fostering for adoption provisions is an amendment to ChA 1989, s 31(3A) that:

'no care order may be made with respect to a child until the court has considered a section 31A plan'.

Rather than considering a care plan before making a care order, the court will only need to consider the permanence provisions of the s 31A plan but not the remainder of the care plan except insofar as it relates to contact. The permanence provisions are the plan:

'...for the upbringing of the child concerned as provide for any
of the following—
(a) the child to live with any parent of the child’s or with any other
member of, or any friend of, the child’s family;
(b) adoption;
(c) long-term care not within paragraph (a) or (b).'

The suggestion is that a care order will not be delayed through judicial scrutiny of care plans.

Clause 2 - repeal of requirement to give due consideration to ethnicity: England

The Bill proposes at clause 2 that the provisions of ACA 2002, s 1(5) ie  'In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background', be removed, the policy behind it being that undue precedence should not be given to these factors to facilitate easier adoption. The House of Lords Adoption Select Committee has proposed that instead of this provision being removed entirely, these factors should be considered as part of the welfare checklist in ChA 1989, s 1. We will have to await the progress of this issue as it is debated by the Lords.

Clause 14 - reducing the time limit for care proceedings to 26 weeks

These are changes that have been heavily debated, and most of us are now familiar with, as a result of the revised Public Law Outline (PLO). The proposal is that ChA 1989, s 32(1)(a) be amended so as to provide that a court shall timetable a case to dispose of an application without delay, and in any event within 26 weeks from the date of issue. The amendments will provide that a court must give consideration to the impact that the timetable would have on:

  • the welfare of the child to whom the application relates; and
  • the conduct of the proceedings

If a court is revising a 26 week timetable, it must assess the impact that:

  • any revision would have on the welfare of the child to whom the application relates; and
  • the impact that any revision would have on the duration and  conduct of the proceedings

The time limit may be extended but only if the court  considers that the extension is necessary to enable the court to resolve the proceedings justly. The amendments to ChA 1989 will provide that a court will not grant extensions routinely. All in all, the message is that the court must aim to conclude the proceedings within 26 weeks and only grant extensions in limited circumstances where there is specific justification for doing so.

Clause 13 – restricting expert evidence

It is proposed that no one may instruct an expert in children proceedings without leave (permission). When deciding whether to give permission to put expert evidence before the court, the court is to have regard to a list of factors, namely:

  • any impact that giving permission would be likely to have on the welfare of the children concerned including, in the case of permission,  any impact that any examination or other assessment would be likely to have on the welfare of the child  who would be examined or otherwise assessed
  • the issues to which the expert evidence would relate
  • the questions that the court would require the expert to answer
  • what other expert evidence is available (whether obtained before or after the start of proceedings)
  • whether evidence could be given by another person on the matters on  which the expert would give evidence
  • the impact that giving permission would be likely to have on the  timetable for, and duration and conduct of, the proceedings
  • the cost of the expert evidence; and
  • any matters prescribed by Family Procedure Rules 2010 (FPR 2010)

Again, this is the statutory embodiment of what we have almost become used to with the introduction of the revised PLO.

Private law

Clause 10 of the Bill provides that mediation assessment and information meetings (MIAMs) will be mandatory (except in specified circumstances, to be set out in the FPR 2010) for anyone making a family application. It should be noted that the Ministry of Justice is currently proposing, under the Transforming Legal Aid consultation, that applicants for legal aid for the purposes of family mediation will need to satisfy a ‘residence test’ ie they will need to demonstrate that they have been resident in the UK continuously for twelve months prior to the date of making their legal aid application, and it may therefore be difficult for some people who do not meet the residence test, who are on a low or no income, to access a MIAM.

Clause 11 of the Bill proposes an amendment to ChA 1989, s 1 to create a presumption that 'unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.' This is to apply only to parents who 'can be involved in the child’s life in a way that does not put the child at risk of suffering harm' and is to apply  'unless there is some evidence before the court in the particular proceedings to  suggest that involvement of that parent in the child’s life would  put the child at risk of suffering harm whatever the form of the involvement.' My own view is that courts have been operating on this basis for some time, but the insertion of these provisions into the statutory framework opens a gateway for arguments to exclude parents on the basis of evidence of harm, and, in legislating for a presumption of parental involvement, a side effect is the potential for litigation to rebut such a presumption.

Following on from this, it is also proposed that instead of contact orders and residence orders, we have 'child arrangements orders' to regulate arrangements for:

  • where a child will live; and
  • who they will have contact with or spend time with

The aim of this is to encourage 'parents to focus on their child’s needs rather than what they see as their own "rights"'.

In line with the reformation of the family justice system, the Bill proposed the repeal of Matrimonial Causes Act 1973, s 41  so that a court will not have to consider a statement of arrangements for children and, where a case is uncontested, allow legal advisors to process divorce petitions.

Conclusion

The Bill is presented as a programme of reforms to modernise the family justice system and make it more efficient. However, the fostering for adoption provisions are radical and potentially extremely problematic. The government’s aim is to speed up adoption, but of course it must be remembered that while there are cases where children suffer due to delays in finalising their placement, an adoption order requires the absolute severance of a child’s legal relationship with their birth family. As such it is an option that must be considered and explored in detail by a local authority and only advocated where no other option will do - at least that is what the recent case law tells us. That message does not appear to have made its way into the Bill however.

Maria Wright is a solicitor at Freemans

Twitter: @mw_sofia

 

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