New Bill shines spotlight on age-old debate

Having been debated by the House of Lords in July, the Children & Social Work Bill is currently at the report stage of its passage through parliament.

The Bill is intended to promote the government’s expressed intention of ensuring that local authorities deliver their children’s services in such a way as to best promote and protect the interests of those who are in their care.

The government’s abolished overview sets out a list of good intentions and many would appear to be uncontroversial. In fact, one might think that they reflect what local authorities should be aiming to do anyway. Social workers in particular will have an ‘eye’ upon the proposal to create a new regulatory body aimed at raising standards and ensuring continuity and consistency of practice.

Certainly the area of care leavers needs to be looked at, as it is only right that the responsibilities of local authorities ought to continue beyond the date when a care order expires. Children who live with their birth families are not turned loose upon the world at the age of 18; arguably the ‘nurturing process’ continues well after that point. On leaving the care system, it becomes even more difficult for these young adults to find the normal and natural support that would come from a family and more likely that they could fall through the net themselves.

More controversial, however, may be the stated aims in relation to adoption. Writing in the Sunday Times in May, the then prime minister, David Cameron, said this would include ‘tip[ping] the balance in favour of permanent adoption where that is the right thing for the children – helping to give children stability’.

The difficulty is the question of whether that is a balance that ought actually to be tipped given that outcomes for children are matters which are constantly exercising the minds of the judiciary. Adoption is only one of the possible outcomes. Is it right for the government to send signals to the court that any one of those outcomes is preferable to others and should be given priority of consideration?

Petitioners will well recall the judgments issued from our higher courts which have emphasised the need for local authorities to carry out a full analysis of all the possible options. These have very much been a counter against a tendency of social workers to lean towards the outcome of adoption without fully exploring the possibility of remaining within the birth family.

The debate is a pendulum which is constantly swinging. However, we have recently been reminded in the case of W [a child] in the Court of Appeal that the court is under a duty to consider what is in the best interests of a child. There is no presumption that the courts should prioritise placing a child within its birth family. This is something of a counter weight to previous judgments which led some social workers to conclude that adoption orders would only be made in extreme circumstances.

Arguably the pendulum is now somewhere in the middle. The courts are now reminding everyone involved to review the Children Act 1989 and the principle that the child’s interest must be the first consideration: no presumption in favour of parents or relatives and no leaning towards adoption to satisfy the perceived preferences of the previous prime minister.

Paul Hunt is a senior associate solicitor at Kirwans

@KirwansLaw www.kirwanssolicitors.co.uk