Thinking about adoption in a pandemic: Why we need to be concerned about S1 445

Professor Brid Featherstone (University of Huddersfield) and Professor Anna Gupta (Royal Holloway University of London) were authors of the report ‘The role of the social worker in adoption – ethics and human rights: An Enquiry' commissioned by BASW. Here they write on The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (SI 2020/445). 

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (SI 2020/445) makes extensive changes to statutory requirements in relation to adoption and fostering services, children’s residential care and the responsibilities of local authorities to children in care.

This blog is concerned with the implications of the changes for adoption, an area of policy that BASW has devoted considerable resources to over the last few years.

Some of the key areas of concern are as follows:

• The previous safeguards, enshrined in law, ensured that each potential adoption decision and prospective family was scrutinised by an independent panel. This is no longer required under the coronavirus amendments. This amendment seems particularly redundant given the wide spread use by professionals of on-line platforms for virtual meetings.
• The law also required that only a ‘nominated officer’ of a local authority can approve the placement of a child with foster carers who are also prospective adoptive parents for that child (foster for adoption). Such a placement can only be made after the local authority has prepared a placement plan for the child. Both these safeguards are removed. Explanatory notes to the statutory instrument state: “This means that these placements are able to proceed swiftly, ensuring children are not waiting due to procedural delays”. 
• The amendments also relax the requirement for adoption reviews (the reviewing of a child’s plan for adoption if not placed or a review of placement once placed) where it is not reasonably practical to do so, unless the agency has concerns about the welfare of the child.

Why be concerned?

The loss of independent scrutiny and the emphasis on speed in relation to adoption are of concern at any time.  

As the Enquiry into the role of the social worker in adoption commissioned by BASW highlighted, adoption involves the legal and permanent transfer of a child from one family to another and is highly controversial.

Adoption has profound implications and can be a clear breach of Article 8 of the Human Rights Act unless carried out in accordance with the law. Respondents to the Enquiry from a range of backgrounds emphasised the need not to rush such processes, given that all involved would be living with the consequences which are long lasting and intergenerational.

In the context of lockdown, speeding up adoptions and the lack of scrutiny are particularly problematic.   For example a Nuffield Family Justice Observatory study noted significant concerns about the fairness of remote hearings in particular cases and circumstances.

These concerns primarily related to cases where not having face-to-face contact made it difficult to communicate carefully and sensitively, there were difficulties ensuring full participation, and issues of confidentiality and privacy.

Specific concerns were raised in relation to particular groups and circumstances: such as cases involving domestic abuse, parents with a disability or learning difficulty or where an intermediary or interpreter is required.

Digital poverty compounds inequalities for many parents unable to effectively participate in discussions with their legal representatives and in the court arena.

There have also been concerns about the difficulties in organising contact between birth families and children and undertaking assessments, with most happening virtually.

Foster for adoption is used mainly for infants, often new born babies. There has been an increase in the removal of new born babies over the past decade, and concerns were raised about this very severe form of intervention in family life and the ethical, legal and procedural challenges prior to COVID-19.

Indeed, when foster for adoption placements were being discussed as part of the Children and Families Act 2014, disquiet was expressed by various organisations that a child’s right to be brought up by their birth family might be compromised, with short term maintenance of the status quo given priority over proper consideration of the child’s long term interests. 

Given the reduction in pre and post birth support services, including residential settings, for parents during the pandemic, the challenges of providing a fair trial in the courts, and lack of direct contact (with virtual contact being particularly unsatisfactory for a young baby and his/her mother), we would argue there is a greater need for rigorous scrutiny of foster for adoption placements in order to ensure the child and his/her parents’ rights are upheld. Thus, the reduction of scrutiny under S1 445 is very concerning indeed.

A neglected aspect of the current situation concerns those children where the plan is for them to be adopted, but they are currently in foster placements. They may be in such placements because adopters have not been found or the approval and matching processes are not completed.

Despite all the evidence highlighting the need not to rush such processes, we have become aware of pressure being placed on social workers for children to be placed quickly in order to free up foster placements for other children who may be coming into care as a result of the virus.

This is extremely concerning at the best of times, but in the midst of a pandemic which is causing huge strains for all families, it may be positively dangerous.

Vulnerable children who are likely to have levels of anxiety are leaving familiar foster parents to live with strangers in conditions of social isolation and high levels of stress.

As with people across the country, prospective adopters will be extremely worried about themselves, their families, jobs and what support services may be available.

Speeding up the process, moving children during these times will, in all likelihood, impact on their emotional well-being, have longer term affects and possibly lead to higher risk of future placement difficulties.

In addition, the removal of the requirement for adoption reviews reduces the chances of safeguarding issues and support needs being identified.

As many others have noted, changes in regulations have been attempted many times previously leading to concerns that COVID-19 has provided the pretext for pushing through changes that have been highly contested and successfully opposed previously.

In the case of adoption, it is also important to place these regulatory changes in the context of the moves in January 2020, after the general election, by the then Minister for Children and Families to increase and speed up adoptions, moves that were strongly contested at the time.

Once again it seems COVID-19 has provided cover for an agenda that is deeply problematic and very contested.

Blogs are written in a personal capacity and the views expressed may not necessarily represent those of BASW.