Written evidence from Coram (CFA0117)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

The House of Lords Select Committee on the Children and Families Act 2014

Coram Group evidence, April 2022

About Coram

Established in 1739, Coram is the UK's first and longest continuing children's charity. Coram today is a group of specialist organisations reach more than a million children, young people, professionals and families every year through legal advice and information, children’s rights and advocacy, family placement and support, service development and improvement, and education and wellbeing.

Over the past year, the Coram Group has directly supported over 118,000 children, young people, parents and carers, and helped over 375,000 children and young people through our education and early years programmes.

Coram provides the national data services for the Department for Education, for whom it previously provided the national adoption register service and continues to provide national matching and adopter recruitment support.

This evidence is drawn from expertise across the group. It complements the oral evidence provided by Dr Carol Homden CBE (Chief Executive) and Alexandra Conroy-Harris (CoramBAAF Legal Adviser). For further information please contact Dr Carol Homden at carol@coram.org.uk.

Responses to the Committees’ questions

1. To what extent has the Act improved the situation for the most vulnerable children, young people and families in England? To the extent that it has not, is this because of the Act itself, its implementation, or challenges which subsequently emerged, whether lasting or temporary? 
 

Overall, provisions in the Act will have improved the situation for some children, but not to the extent that it was intended or hoped. Many of the provisions put existing practice on a statutory footing without introducing new practices. Whilst the Act provided clarity and encouragement to the spread of these practices, the overall effect has been muted because of a lack of resources to support implementation and the impacts of structural reform of adoption.

2. If there were to be a Children and Families Act 2022, what should it include and what might be the barriers to implementation? 

If there were to be an act, it would strengthen the obligation for a court to consider adoption as an option for any child requiring permanent placement outside their birth family. At the moment the court can only consider adoption if the local authority has made an application for a placement order.

Barriers to implementation are likely to be objections in principle from those who prioritise a parent’s right to maintain a legal relationship with their child over the child’s right to establish a secure and legally permanent family life with alternative carers. 

We also recommend that there be a new legislative framework in respect of kinship care, addressing the support that kinship carers receive and the process of assessment. This is to reflect the different way that kinship carers enter the public law process, often in the context of loss in relation to a family member and trauma within their own family and network.

Barriers to implementation may include the need to develop specific skill sets and understanding around kinship care within local authorities. Overall practice and the resourcing of it is patchy.

Overall, there should be a legislative and policy framework in the provision of support services that aligns adoption, foster care and kinship care on a child-centred basis.

3. Is the Act enabling faster, more secure and stable adoptions which are in the best interests of the child? 

Overall, there has been limited change since the passing of the act. There is still very wide variation in the application of early placement, which has long been evidenced as a very positive means to securing secure and stable family life for children.

What has been the effect of provisions on fostering to adopt? 
 

Fostering to Adopt is effective in reducing the number of placement moves for young children. However, in some areas there has been significant professional resistance despite evidence of the benefits, which compounds delay for some children.

Coram developed a national quality mark in early permanence to reinforce the intent and to support agencies in advancing best practice, but the commitment of local authorities and regional adoption agencies to recruitment and training of fostering to adopt carers has been variable, and there remain significant disparities in its use across the country. The percentage of adoptions by this means remains low.

What has been the effect of the repeal of the requirement to consider ethnicity, religion, race, culture and language in England when placing a child for adoption? Are any further legislative or other measures needed to address disparities? 
 

While recognising that we lack robust and comprehensive evidence around children and families’ experiences, the data available indicates that there does not appear to have been any positive effects from this change. Children are waiting longer in care than they were, despite the overall high numbers of approved adopters.

England is a signatory to international conventions that set out the rights of the child to their history and heritage and the role of State services to promote and enable these rights. S1(5) of the Adoption and Children Act 2002 sets this out in the use of the phrase must give due consideration to’. This was a balanced and sensitive phrase and S1(4) of the Adoption and Children Act 2002 still requires courts and adoption agencies to consider the child’s background and characteristics. 

Social workers are also well aware of the identity issues experienced by adopted children and are reluctant to exacerbate those issues by placing children in families who do not share the child’s characteristics.  

The needs of children for a family match which meets their identity needs as well as other care needs can be better served by increased recruitment of a diverse range of adoptive families, with more support for underrepresented communities to consider adoption and work to address the barriers which they may face including housing. 

What effect has the suspension of the Adoption and Children Act register had on the matching process? 

A negative effect. The Register was a service for children requiring that any agency referred a child who had not been matched after more than 90 days to a national specialist team who undertook proactive searching and recommendation of potential links from amongst available adopters. There is now no such service. In its last year of operation (2018/19), the Register which was funded by the Department for Education, supported 275 children to be matched, and supported all agencies free of charge, also supporting 641 adopter enquiries.

Research from Coram-I https://coram-i.org.uk/adoption-register-impact/ suggests that with the loss of the Register as many as 200 children a year could end up remaining in care rather than being adopted, and local authorities would spend around an extra £7.3m per year on supporting those children. To cover its annual cost, the Register needs to help find adoptive families for just two children, a target that has been achieved every year since it was created. 

There are concerns that a commercial organisation with no regulatory oversight set up an alternative facility, which we believe may be in breach of the Adoption  and Children Act 2002 s92. We were concerned to hear the Department’s representative in oral evidence refer to this alternative facility as ‘the Register’. It is no such thing.

Initially, the facility was popular with prospective adopters because it enabled them to have more real-time unrestricted access to details of children available for adoption and was initially a low-cost option for local authorities. It is an effective technical solution but, since the Register was suspended, the organisation has had a monopoly and remains a tool for agencies and adopters, not a matching service for children.

The Register was run by three successive registered adoption agencies over 20 years. Referral to the Register was compulsory for all children with an adoption plan, ensuring that no child could be overlooked and links were suggested after consideration by dedicated staff. Now, agencies take a view on how likely children who may be difficult to place are to attract interest on the website, and so whether to pay the fee, resulting in reduced opportunities for those children. Conversely, a social worker looking to place a more ‘attractive’ child may be swamped with applications directly from prospective adopters and have to spend hours filtering out those applications. 

For adopters who put themselves forward repeatedly for dozens of children and are not considered for a match there can be a significant impact on their mental health. There is no longer an available helpline service to support them in this process.

We strongly recommend that the Register be reactivated, with a return of compulsory referrals for children and adopters, run by a properly registered adoption agency to provide a proactive national matching opportunity to ensure every child has the same opportunity.  
 

Are families receiving the right information, budgets and support to assist them post-adoption? 
 

The introduction of the Adoption and Special Guardianship Support Fund provides significant support to adoptive families, certainly much more than other, less formal, placement arrangements have previously offered. 

It does however have its limitations – there are specific forms of therapy that are approved, and there is a risk that the ASF is the only access to a support offer. Families can struggle to obtain the appropriate support for needs which the ASF does not meet, and there can be a particular difficulty in obtaining higher cost support for older children to avoid placement disruption as teenagers. Managing unplanned social media contact with birth families is an area which adoptive parents and social workers find particularly difficult and young people continue to struggle to access skilled life story work.     
 

Adoption support for adopted adults, in particular intermediary services, is very difficult to obtain, and where intermediary agencies are available, their services need to be funded by the individual. 

4. Have the reforms to the family justice system succeeded in making the system faster, simpler and less adversarial? How has the Act interacted with other reforms to the family justice system, for example the changes to legal aid? 

The reforms have not had this effect. The average time for a care or supervision case to reach first disposal was 45 weeks in July to September 2021 - up 4 weeks from the same quarter in 2020. 24% of cases were disposed of within 26 weeks - down 5 percentage points compared to the same period in 2020. The system remains adversarial in nature.
 

Does the 26-week limit on care and placement proceedings strike the correct balance between justice and speed? 

The aspiration for cases to be concluded within the timescale of the child is a noble one. Six months is a significant period for a child but there continue to be many cases where a parent may not have time to realise the gravity of the situation and take meaningful steps to establish a capacity to care for their child in the appropriate period for change for the child. Greater use of concurrent planning is appropriate to assist in the striking of this balance so that children are not left holding the risk of further moves.

In many areas the 26-week rule is largely irrelevant, as there are inadequate resources, either in court time or in availability of experts to provide evidence within the timeframe. In the case work of Coram Children’s Legal Centre, it is common for proceedings to extend over more than 100 weeks which is inappropriate for most children.

The 26-week limit can be a particularly challenging timescale for kinship carers and assessing social workers to complete robust assessments. It does not always allow for consideration of capacity to meet a child’s needs in the long term when the outcome of care proceedings remains uncertain.

The Public Law Working Group Best Practice Guidance postdates the Act and references the need to extend proceedings to allow for assessment of kinship carers and the testing out period. This is welcome but not reflected in the 2014 Act. 

How well have the limitations on expert evidence served children in the family justice system? 

The expectation of joint instruction of experts has largely been accepted in proceedings, although some individual courts are known to allow greater leeway to parents to instruct a second expert if they do not accept the first report. This is particularly so when local authorities have instructed experts in pre-proceedings, as the parents may not have been fully involved in the instruction and another expert report may be seen to be fair process.  

There is a significant shortage of experts prepared to accept instructions in care proceedings due to the limitations on fees imposed by the Legal Aid Agency (LAA). Local authorities are often forced to make up the difference between the fees demanded by experts and the amount that the LAA are willing to pay, even for ostensibly joint instructions. Where prior authority is needed from the LAA for an instruction, this will take time and local authorities can come under pressure to accept responsibility for all fees to avoid delay. 

5. Has the Act achieved its goal of improving provision for children and young people with SEND, in all settings including mainstream schools, special schools and further education colleges? If changes are needed, could they be achieved under the framework of the Children and Families Act 2014 or is new legislation required? 

The reforms were meant to offer simpler, better and more consistent help for children with SEND. However, the situation is still very challenging for children and families and adversarial. A recent Ofsted report (13 May 2021) on SEND provision found that families experienced “long waiting times and high levels of bureaucracy with the education health and care plan process”. 

Coram’s Child Law Advice Service (CLAS) receives a significant number of education queries from parents and carers of children with SEND. Parents report significant delays in the system and a gap between supply and demand of school places. Coram Children’s Legal Centre is the longest serving charity provider of the CLA Education contract for England and sees a continuing pattern of failure of fulfilment of EHCP process.

Parents of children with SEND are increasingly engaged in protracted and costly disputes with local authorities who are too often failing to deliver on their legal duties. Parents and carers report that taking part in this process can have significant mental, emotional and financial impacts.

Legal aid is available in the SEND tribunal (but only for representation in in the tribunal exceptional cases) and for judicial reviews. The eligibility criteria is limited, and additional funding is not necessarily straightforward to obtain if independent reports or assessments are required. The result is that we risk it being predominantly families with financial resources and those who qualify for legal aid who can secure the appropriate support for their children. Children with SEND from families who do not qualify for legal aid (the vast majority of children with SEND) are therefore less likely to receive the provision to which they are entitled. There is currently a post-code lottery in terms of both provision of support and the local authority approach to seeking defending tribunals.

The SEND green paper launched earlier this year offers some hope for positive changes including additional funding. However, this funding might not be able to address the systemic problems in the system and may only act as a bailout to already financially struggling local authorities as opposed to a new source of funding to aid improvements. We would welcome any changes which make the system less adversarial.

From the new proposals in the green paper, we have concerns that additional bureaucratic burdens may be placed on parents and carers seeking support by the proposal to have mandatory mediation between the local authority and the parents and carers ahead of any tribunal. Further to this we have concerns that the proposals may also limit parental choice in terms of identifying an education placement for their child. There is, however, some positive progress in the proposal to standardise the EHCP form digitally and across the country.

6. Have the reforms to childcare agencies and childcare provision introduced by the Act improved the quality and availability of childcare? Are the reforms introduced by Part 5 of the Act sufficient to safeguard the welfare of children? 

Our research[1] shows that the costs of childcare have continued to rise since 2013 in England. This is a pattern that we have observed since the inception of our Childcare Survey in 2001. The average price of a part time childcare place (25 hours) a week for a child aged under two in a nursery is £138.70 across Great Britain, or £7,210 a year. To give this some context, this is about twice as much as the average household spends on food and non-alcoholic drinks per week (£63.70; Office for National Statistics, 2021)

There are more childcare providers in 2022 than in 2013. In 2013, 20 per cent of local authorities in England reported having enough childcare for children aged two and under. In 2022, this was 57 per cent (‘in all areas’). However, while overall sufficiency has increased, significant gaps in provision for childcare remain – as outlined below – and for some types, childcare it has decreased.

The number of childminders registered with Ofsted has also continued to decrease, despite the aim of the legislation to increase childminder provision through the introduction of childminder agencies. There were 34,800 childminders on 31 March 2021, 27% (13,100) fewer than on 31 August 2015[2].

Comparison of 2013 and 2022 (better, worse)

7. Does the Children’s Commissioner have the correct remit and powers? Are the correct accountability structures in place to ensure they discharge their duties effectively? 

The Children’s Commissioner has the correct remit and powers.

8. Is the system of shared parental leave and statutory shared parental pay functioning adequately? Is the system of flexible working functioning adequately? In light of the changes to working styles brought about by the COVID-19 pandemic, what changes, if any, are needed to provisions in the Act on flexible working? 

Adoption leave and pay for carers in fostering to adopt arrangements is sometimes difficult to obtain as employers are not aware of it. There is also a restriction if a placement for fostering to adopt is made after a placement order has been made, and this appears arbitrary and possibly an unintended consequence of the wording of the Regulations.    

We would suggest extending parental leave and pay arrangements to kinship carers who are often forced to leave their employment to care for children placed with them. It is also important to regularise the status of self-employed carers.

May 2022