Adoption: better choices for our children

11. Procedures Within Local Authorities and Agencies

Summary

11.1 The Group considered the procedures for planning for permanence within local authorities and adoption agencies, including the functions of adoption and permanence panels, and the procedures for assessment and approval of adopters and foster carers.

11.2 The Group's major recommendations are:

• all plans for permanence for children, including adoption, should be looked at by a single advisory panel within each local authority (11.19)
• there should be an independent review body (external to agencies) to consider appeals against the decisions of agency decision makers on adopters and adoptions (11.36)
• there should be an independent system for appeals by prospective and existing foster carers (11.50)
• there should not be a list of prescribed offences that prevent a person from adopting or fostering. However, regulations should specify that enhanced criminal record certificates should be sought for all applicants as a matter of regulation (11.57)

PERMANENCE PLANNING BY LOCAL AUTHORITIES AND ADOPTION AGENCIES

Principles to be applied in permanence cases

11.3 The following principles should be applied in planning and decision-making by local authorities, adoption agencies and courts in permanence cases:

• the paramount consideration in each case is the welfare of children, or, in adoption cases, the welfare of children throughout their lives;
• children's views must be taken into account in all decisions;
• there must be consideration of race, religion, culture and language in all decisions; and
• no order should be made unless it is better to do so than not to do so - the "minimum necessary intervention" principle. ¹

11.4 A number of areas of the consultation with young people showed the importance of young people being involved in decisions. ² Most young people would want to attend meetings which are considering their future and be involved in decisions about where they will live, including decisions about adoption:

...it is important that you have your say in what is going to be happening to you in your future. (Young woman, 17 years)

I really think that children should have some sort of say. Even if they are quite young … Let them have ... some kind of responsibility for the rest of their lives. ...you are... taking away from their lives if they do not want to be adopted and they realise that later in their lives. (Young man, 17 years)

I felt that a lot of the stuff was hidden from me. I could see the hesitance when they spoke to me … Obviously I was only 10 ... but if somebody had taken the time to sit down with me and explain to me, look this is why this decision was made, do you understand. (Young woman, 20 years)

11.5 The responses also showed the difficulties that can occur if young people do not feel involved in these decisions:

The majority of my foster placements used to go out with a bang... I got picked up and then taken somewhere else. I was taken from my real Mum's to a foster placement, maybe be told briefly where I was going... It was always like that. (Young woman, 21 years)

I would not say I have had a say in it. I feel that if I had not got put into that children's home I would not have spent most of my teenage years in secure units and residential (units). (Young woman, 17 years)

11.6 The consultation also highlighted the complexity of enabling young people to participate in decisions about their lives. For example, some of the responses indicated that young people would not have chosen at the time the outcome they would choose today.

... I would not really have known at the time what that (adoption) was ...when I was that age I would have wanted to live with family because they are people you know. (Young woman, 14 years)

… sometimes they did not listen to me, but … I wanted things that was not best for me …Now I realise and think, they did want the best for me …I was wanting to go and stay with my Mum. But my Mum was really messed up with drugs... (but) I hated them for it. (Young woman, 17 years)

11.7 The responses to the consultation largely indicated that these principles should remain as they are, although increased guidance would be welcomed on some issues, for example how to take and use the views of children and young people. ³

11.8 The Group considered the list of criteria for making decisions contained in the Adoption and Children Act 2002. ⁴ The Group concluded that most of these considerations would be covered by the existing wide-ranging duty to treat children's welfare as paramount. However, the Group was attracted to the provision that courts and adoption agencies must include in their considerations "the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person". ⁵

11.9 The Group recommends that the principles for permanence planning should remain the same, with the addition of a duty in adoption cases to consider the effect on the child of having ceased to be part of the original family and become an adopted person.

Role of local authority adoption agencies

11.10 The Group considered the need for 32 local authority adoption agencies, given the relatively small number of adoptions each year, and the resulting lack of experience for social workers in each local authority.

11.11 The report of Phase I of the review was not in favour of a national adoption service. ⁶ It did, however, recommend national co-ordination of some services and activities, including:

• a national recruitment strategy;
• standardisation of pre-assessment criteria and materials;
• establishment of an Adoption Support Network for Scotland. ⁷

11.12 Views from consultation indicated that there was no clear consensus on these issues. However, there was general support for centralisation and standardisation of some aspects of adoption services, such as adoption information, information about the curator ad litem service and post-adoption support.

11.13 The Group recommends that there should not be a national adoption service, but, as recommended in Phase I, there should be centralisation of some services. In addition, guidance from the Scottish Executive should encourage consistency in service delivery throughout Scotland, and encourage authorities and agencies to work together to ensure this. The Care Commission inspection of adoption agencies will have an important role in establishing national standards of service.

Fostering, adoption and permanence panels

Functions of and terminology for panels

11.14 Local authority fostering and adoption panels make recommendations to - not decisions for - local authorities on approval of foster carers and adopters, and - in the case of adoption panels - they can recommend whether adoption is in the best interests of an individual child, and the match with prospective adoptive parents. ⁸

11.15 Local authority advisory panels can be known as fostering, adoption or sometimes "permanence" panels. The first two are names used in regulation, but the last one has no statutory meaning. Some local authorities combine the two statutory panel functions in one body, and various combinations of names are used, such as "fostering and adoption panel". The term "permanence panel" is sometimes used for a combined panel, and sometimes for a panel that deals with all permanence plans for children, including adoption and long-term fostering, although again this is not a statutorily defined function. The Phase I report recommended "that local authorities should have one panel to consider all decisions about permanence away from home, including adoption". ⁹

11.16 The Group considered whether carer panels should be created to deal with all approval recommendations for foster and adoptive carers and whether agencies should continue to use adoption/permanence panels as part of the planning process for children. ¹⁰

11.17 The consultation responses on the first matter gave no clear view. The consensus of the responses about the use of adoption/permanence panels indicated that the current system seems to be well established and working relatively well across Scotland, with panels developing on a local basis to suit the needs of particular authorities and agencies.

11.18 The Group agrees with the Phase I recommendation that one panel within local authorities should deal with all permanence plans for children. However, it considers that there should formally be two different panels, one for fostering and one for adoption, to recognise the different range of functions each has. For example, a recommendation by an adoption panel that a child should be adopted has formal consequences in terms of court applications which might not be the case for other permanence plans. Fostering panels need to deal with the approval of short-term as well as long-term foster carers. However, the Group believes that the regulations should allow both functions to be exercised at the same meeting. This reflects the practice in many authorities and agencies. The regulations should allow individual local authorities and agencies to organise the membership of panels separately or together, as they wish. This will give maximum flexibility to local authorities and agencies to organise the work of panels in their area.

11.19 The Group recommends that all plans for permanence for children, including adoption, should be looked at by one advisory panel within each local authority/agency. There should continue to be separate regulations for fostering and adoption panels, but these should allow individual authorities and agencies to operate these panels together if they wish.

Attendance at adoption/permanence panels

11.20 The Group considered who should be able to attend adoption panels, including:

• children whose plans are being discussed;
• birth parents whose children's plans are being discussed; and
• prospective adopters whose approval is being discussed. ¹¹

At present, prospective adopters have a right to be invited to and attend the panel when it is considering whether to approve them. ¹² There is no such regulatory right for birth parents with parental responsibilities and rights, although a few agencies do invite them to panels which are considering plans for their children. ¹³ Questions have been raised whether children should be able to attend panels when discussing plans for them.

11.21 The responses to the consultation indicated that there was considerable support for allowing children to attend panels, if the child was mature enough to understand the process. There was mixed support for allowing birth parents to attend panels, although it was generally considered positive, provided that there was guidance to govern how this would operate in practice.

11.22 As laid out above, the consultation with young people showed clearly that it is important for young people to be involved in decisions about their lives, including plans for adoption. ¹⁴

11.23 The Group concludes that children should be given the right to make representations to any panel which is looking at plans for them, taking into account their maturity and wish to be heard. The Group agreed that the birth parents should have the right to make oral or written representation to the panel, although this should happen at the stage when the plans are discussed at panel, rather than at the matching stage. There should also be the discretion to invite fathers without parental responsibilities and rights. Prospective adopters should continue to have the right to be invited to panels, and clearer, non-ambiguous regulations are needed to avoid confusion on the rights of adopters to attend or make representations to the panel.

11.24 The Group recommends that:

• children and young people should have a right to make representations to adoption panels and/or attend them, taking into account their age and maturity.
• birth parents should have a right to make oral or written representations to adoption panels considering plans for their children.
• fathers without responsibilities and rights may be invited to attend adoption panels at the discretion of the local authority/adoption agency.
• adopters should have a right to make oral or written representations to panels considering their approval.

Timetables for planning

11.25 Avoiding delays is crucial in plans for all types of permanence for children. The Phase I report identified delays at three stages before the court proceedings:

• between the child becoming looked after away from home and a looked after review decision to seek permanence.
• between such a review and the adoption/permanence panel.
• between the panel recommendation and the lodging of a court application for freeing or adoption. ¹⁵

The Phase I report made recommendations for improved planning for looked after children, including the avoidance of delay. ¹⁶

11.26 At present there are statutory timetables for local authority adoption agencies for the stage between an adoption panel recommendation for the child and an application to the court. ¹⁷ The national care standards for adoption agencies also contain timetables for the delivery of services which the Care Commission will use in inspecting these services. ¹⁸

11.27 Responses to the consultation ¹⁹ indicated that there was support for reducing delays, and it was felt that Sheriff Principal Macphail's practice note was particularly useful. ²⁰ There was support for the development of sheriffs with particular expertise in permanence cases. The consultation also indicated that there was support for guidelines to address delays at various stages of permanence planning.

11.28 The Group concluded that further guidance should be given on the average time each part of the process should take, rather than further timescales being introduced in regulations. Regulatory timetables covering the whole permanence planning process would be too inflexible and could not take account of the wide range of circumstances involved. However, the existing regulatory timetables for the last stage of the process were considered valuable and should be retained.

11.29 The Group recommends that there should continue to be statutory timetables for the procedures between adoption/permanence panels and court applications and clear guidance from the Scottish Executive (or the Care Commission) about other parts of the process.

Role of the adoption agency decision maker and appeals by prospective adopters

11.30 Agency decision makers have a central role in adoption agencies, making decisions on permanence planning for children on the basis of recommendations by adoption panels. They also approve prospective adopters. Decision makers do not have to follow the recommendations of adoption panels but can disagree and make other decisions. However, there is little in regulations and guidance about their role and duties.

11.31 The Group considered whether there should be new regulations and/or guidance about the role of agency decision makers in a range of issues:

• should there be the right to make written representations to agency decision makers, and if so, to whom should it be given?
• should decision makers attend all adoption panels as observers?
• should agencies have more than one decision maker?
• what should be the format of adoption panel minutes?
• should there be an automatic internal review if the decision maker disagrees with the adoption panel recommendation? ²¹

11.32 The responses to the consultation indicated that the current system is satisfactory. There was strong support for the issuing of guidance, rather than regulations, on the role of the agency decision maker.

11.33 The Group considers that clear accountability within the local authority or adoption agency is very important. Recommendations should be the province of the permanence panel. The agency should make the decision. The decision making role should be exercised by senior managers, and every organisation should have more than one agency decision maker. It is not necessary for agency decision makers to attend adoption panels as observers. This could blur the clear separation between their distinctive roles.

11.34 The Group did not consider that parties should normally have the right to make written or oral representation to agency decision makers following the recommendation of the adoption panel. All relevant information should be before the adoption panel when it makes its recommendation. However, there may be circumstances where new information comes to light after the recommendation or before the decision maker has decided, which might indicate that the information relied upon by the adoption panel was incorrect. The decision maker should be able to take such information into account.

11.35 The decision maker, as the proper accountable person, is making the decision of the agency. There should therefore be no automatic review if the decision maker disagrees with the adoption panel. However, the disagreement should continue to be recorded and should also be communicated to all parties, including members of the adoption panel. If a party wishes to appeal, there should be an independent review body, external to the agency, to consider all relevant decisions.

11.36 The Group recommends that:

• the authority/agency decision making role should be exercised by senior managers.
• every authority/agency should have more than one decision maker.
• additional written or oral representations from parties should be invited by the agency decision maker only if new information comes to light after the recommendation of the panel.
• interested parties should be informed if the decision maker disagrees with the recommendation of the adoption panel, but there should be no automatic review of the decision.
• however, there should be an independent review body (external to the authority/agency) to consider appeals against the decisions of agency decision makers.

Issues for fostering panels

11.37 Current regulations about fostering panels are less detailed than those for adoption panels. The Group considered a number of issues about this, including:

• whether fostering panels should have legal advisers;
• whether fostering applicants should be invited to panels; and
• whether local authorities should be obliged to involve their panels in the annual reviews of foster carers. ²²

The fostering standards deal with what prospective foster carers can expect during the assessment process, access to assessment reports and to the fostering panel on approval and review. ²³ However, these matters are not governed by regulation.

11.38 Responses to the consultation indicated that there was general satisfaction with the existing arrangements. However, it was felt that regulations could be useful to provide consistency.

11.39 The Group agreed that there is no need for a regulation obliging fostering panels to have legal advisers. This can be left to the discretion of the organisation. The Group considered that, in the interests of openness, both prospective foster carers and foster carers being reviewed should be able to attend panels. The Group did not believe that it was necessary for a routine annual review of foster carers by a fostering panel, but approvals of foster carers should be considered by a fostering panel every three to five years and when the Care Commission recommends it following an inspection of a foster care service.

11.40 The Group recommends that:

• regulations should give those applying to foster and existing carers being reviewed the right to make oral or written representations to fostering panels, including the right to attend the panel.
• fostering panels should be involved in reviews every three to five years and when the Care Commission recommend such involvement in light of its individual inspections of fostering services.

Access to assessment information by foster carers

11.41 Adoption applicants currently receive a copy of their assessment report, excluding confidential third party information. ²⁴ There is no equivalent regulatory right for fostering applicants, although the Fostering Standards services say:

You [the prospective foster carer] know that you have access to the assessment report before a decision on approval is made. You can add to the report and go to the fostering panel. ²⁵

11.42 The Group recommends that fostering applicants should be given a right to receive a copy of their assessment report, excluding confidential third party information.

Appeals by prospective and existing foster carers

11.43 There are three situations where prospective or existing foster carers may wish to appeal or seek a reconsideration of a decision:

• where prospective carers are not approved following assessment;
• where existing carers are de-registered at their annual review, whether they have attended a panel or not; and
• where existing carers are de-registered after allegations are made, whether they have attended a panel or not.

The Fostering Standards state that carers and prospective carers should be "given information about the appeals procedure and how, and in what circumstances" they can be accessed. ²⁶ They also state that "a review will be held as soon as possible after any significant incident, complaint or allegation of abuse or neglect" against an existing carer. ²⁷ Foster carer approval must be reviewed at least annually, and the review may or may not involve the fostering panel. ²⁸

11.44 However, there is no statutory provision for an appeal process, either for prospective or existing carers. Existing carers are not employees and are therefore not eligible for the support available to the employed, despite the fact that de-registration may deprive them of their income.

11.45 The Group considered whether there should be a statutory appeals system for applicants who fail to be approved or are de-registered, and if so, whether it should be a national one. ²⁹

11.46 The consensus of opinion from the consultation was that there should be an independent appeals mechanism for prospective and existing carers. It was considered that appeal procedures should be available, widely advertised, and that they should be transparent, accessible, and in place across Scotland.

11.47 In England and Wales, the recent fostering regulations require agencies to give written notice to carers of an intention not to approve or to de-register or to change the terms of registration; 28 days are allowed for them to make written representations. ³⁰ If written representations are made, the case must be referred to a panel and agencies must take account of the panels' recommendations before reviewing their decision anew.

11.48 Under the Standards for Fostering Services in England and Wales, information about procedures for dealing with complaints and representations should be widely available. Agencies must also provide information about their procedures to deal with investigations into allegations to a range of people, including carers, and provide independent support to foster carers during investigations. Where there are allegations of abuse, agencies must keep records of these and have clear policies about when carers should be de-registered. ³¹

11.49 The Group believes that there should be a statutory process for appeals by carers, giving access to an independent review of decisions on approval and re-approvals of foster carers. This independent process should review rather than overturn decisions of the local authority or voluntary agency decision makers. The system could be supported by an independent agency, or by the Care Commission, or through local arrangements of independent advisors. The Group also believed there should be a system to provide independent support to foster carers during the investigation process. This could again be delivered by either national - possibly a central agency - or local arrangements. To underpin the system of investigation, the Group believed that agencies should have clear and consistent approaches to handling allegations against foster carers. A national code of practice on handling investigations would provide agencies with a basis for these policies.

11.50 The Group recommends that there should be an independent system to review decisions about prospective foster carers and existing foster carers whose approval has been terminated or whose conditions of approval varied. There should also be an independent system, similar to that already in place in England, to provide support to foster carers during investigations and appeals. There should be clear and consistent policies from agencies on the handling of allegations against foster carers based on a national code of practice.

Other panel issues

11.51 The Group considered some general issues about panels:

• the meaning of "panel": is it a particular meeting or is it the wider group of people from which the attendees of a particular meeting can be drawn?
• qualifications of panel members.
• whether it is necessary to have a man and a woman at each panel meeting.
• the form and style of panel minutes. ³²

11.52 Responses to the consultation indicated that there was general satisfaction with the existing system, but that some changes would be valuable. It was felt that there is scope to achieve a better representation of gender, age, qualifications and background with panel members, but that this should not be too prescriptive, otherwise it could be difficult to recruit panel members.

11.53 The Group agreed that there should be greater clarity about the meaning of "panel" in different situations to distinguish a meeting of a panel from the wider pool of people from which the local authority or agency can draw to consider individual cases. More detailed guidance is required about appropriate qualifications for members of fostering and adoption panels, and the composition of meetings of the panel. The composition of a panel meeting should be appropriate given the child's ethnicity and related matters. Guidance should also make it clear that each panel meeting should include a man and a woman wherever practicable. As far as panel minutes are concerned, the Group agreed that more clarity is required and this should be covered in guidance.

11.54 The Group recommends that:

• the terms "panel" and "panel meeting" should be used in regulations and guidance to distinguish between the pool of people as a whole and who may serve out the composition of an individual meeting.
• there should be detailed guidance from the Scottish Executive about qualifications of panel members and the composition of panel meetings, including the child's ethnicity and related matters.
• guidance from the Scottish Executive should make it clear that there should be a man and a woman at each panel meeting wherever reasonably practicable.
• guidance from the Scottish Executive should be provided on the format of panel minutes.

Criminal record checks on prospective carers and adopters

11.55 In Scotland there is no prescribed list of previous convictions which would automatically bar applicants from approval as foster carers or adopters. The only exception is where applicants seek to adopt from a Hague Convention country. The Group considered whether a prescribed list should be introduced for all applicants, as exists in England and Wales. A related issue is whether regulations should specifically instruct that enhanced criminal records certificates must be sought for prospective carers and adopters.

11.56 Consultation responses showed a clear division of opinion about whether a prescribed list would be a positive move. The majority view supported a prescribed list. However, other responses suggested a prescribed list could be burdensome because it would remove discretion from local authorities and agencies. Should convictions for this purpose "expire" after a given number of years enabling the agency to consider all the circumstances?

11.57 The Group recommends that there should not be a list of prescribed offences. It was better to allow local authorities and agencies to make judgments in individual cases based on all the facts before them. However, the Group recommended that regulations should state that enhanced criminal record certificates should be sought for all applicants. This would ensure that the best information was available to the local authority or agency in reaching its decision. In addition, under the 2003 Act no person can be approved as a carer or adopter if they are disqualified from working with children. This legislation has been in force since January 2005.

Recommendations of Chapter 11 -procedures within local authorities and agencies

86. The principles for permanence planning should remain the same, with the addition of a duty to consider the effect on the child of having ceased to be part of the original family and become an adopted person. (11.9)

87. There should not be a national adoption service, but, as recommended in Phase I, there should be centralisation of some services. (11.13)

88. All plans for permanence for children, including adoption, should be looked at by one advisory panel within each local authority. (11.19)

89. Adoption/permanence panels should be attended and/or hear representations from:

• children and young people taking into account their age and maturity
• birth parents (unmarried fathers at the discretion of the local authority/adoption agency)
• adopters. (11.24)

90. There should be statutory timetables for the procedures between adoption/permanence panels and court applications and clear guidance from the Scottish Executive (or the Care Commission) about other parts of the process. (11.29)

91. Authority/agency decision making role on permanence and adoption cases should be exercised by senior managers and every organisation should have more than one agency decision maker. (11.36)

92. Additional written or oral representations should be made to agency decision makers after an adoption panel's recommendations only if new information comes to light. (11.36)

93. There should be an independent review body (external to agencies) to consider appeals against the decisions of agency decision makers on adopters and adoptions but there should be no automatic review of cases where the decision maker disagrees with the adoption panel. (11.36).

94. Fostering applicants and existing carers on review should have the right to make oral or written representations to fostering panels, including the right to attend the panel. (11.40)

95. Fostering panels should be involved in reviews of foster carers every three to five years. (11.40)

96. Fostering applicants should be given a right to receive a copy of their assessment report, excluding confidential third party information. (11.42)

97. There should be an independent system for appeals by prospective foster carers and existing foster carers. (11.50)

98. There should be general guidance from the Scottish Executive on fostering and adoption/permanence panels covering:

• the composition of panel meetings (man and woman wherever practicable; reflect child's ethnicity and related matters)
• qualifications of panel members
• the format of panel minutes; and
• the meaning of "panel" and "panel meeting". (11.54)

99. There should not be a list of prescribed offences that prevent a person from adopting or fostering. However, enhanced criminal record certificates should be sought for all applicants. (11.57)