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Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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PART VI: APPLICATION FOR A PERMANENCE ORDER GIVING AUTHORITY FOR ADOPTION

Part VI is entitled 'Application for a permanence order' but, being part of the adoption agency regulations, it is written in terms of how the adoption agency carries out its activities and includes reference to seeking authority to adopt. In practice as the legislation introduced this new option, not as replacement for freeing for adoption or for a PRO but to have a new flexible order to make long-term plans that suited each individual case, a similar process should be used whether or not authority to adopt is being sought. Court rules ask you which sort of PO you are applying for, but thereafter the timescales for the process are the same whether the aim is to obtain a PO as the means of securing the plan for the child or a PO with authority for adoption. It would therefore be logical for local authorities to approach both forms of PO similarly within their processes and timescales. The distinction drawn between regulations 21 and 22 depends on whether or not a child is on supervision.

Child not subject to a supervision order

This is likely to be a very small minority of cases where planning for the child has been in co-operation with the birth parents but they have then withheld their agreement to the plan. It is based on the initial notice to the parents about the agency decision to proceed with an adoption plan for the child or to apply for a PO with authority to adopt and will follow on from consideration at the adoption panel. The adoption agency should clearly record the dates of the adoption panel, the agency decision, the notification to the parents with the certificates as laid out in Schedules 4 or 7 and the date either of when the birth parent certified they did not agree with the decision or when the 28 days following the receipt of the certificate by the birth parent has passed and the parent has not responded. The notification to the birth parent should be done in a manner whereby the agency can identify the date it was received.

The timescales available to the adoption agency mean that there needs to be a quick decision about the best way to respond to the situation. Where a birth parent has changed their mind and no longer wishes the child to be adopted, if the child has not been placed for adoption, then if the parent wishes the child returned to their care, plans should be made accordingly unless there are clear concerns that this is not in the child's best interests. If an infant has already been placed in anticipation of the agreement of the birth parents this will clearly be a distressing situation for everyone which will need urgent discussion. If the infant has been accommodated for less than six months the birth parent may seek the immediate return of the child. Unless the adoption agency or the prospective adopters take immediate action this should happen. The other options open to the adoption agency only apply if the agency is a local authority so any registered adoption service in this position will only be able to take this forward if it is done by the child's local authority. This means that there would need to be grounds for referral to the reporter for a supervision order or grounds to apply for a PO immediately. If the child has been accommodated for more than six months, the birth parent should give 14 days notice of removal. In reality, therefore, the provision of 28 days to make application for a PO in line with regulation 21 will only be applicable if the birth parent is not actively seeking return of the child or the child's situation has become protected by the Children's Hearing.

The alternative option open to prospective adopters, if the child is looked after by the local authority and already placed, is the lodging of an adoption petition. Adopters will need both counselling and access to legal advice if they wish to consider proceeding with action to adopt the child. The grounds for dispensing with parental consent for adoption in section 31 of the 2007 Act and for a PO in section 83 are similar. If the parent is dead, cannot be found or there is independent evidence that they are incapable, the lack of consent should have been anticipated and plans made for the next steps towards achieving adoption - which may well be by direct petition. Where there are already known grounds for considering that birth parents are unable to satisfactorily discharge their responsibilities or exercise their rights then a local authority who has gone ahead on the basis that the parent has agreed with the adoption plan - but there are good reasons for going ahead if this is withdrawn - should be ready to establish that legally. The other ground that could be considered is the general one of 'the welfare of the child otherwise requires the consent to be dispensed with'. This may be argued when a child who is or may be identified as vulnerable has established strong attachments and it would be detrimental to remove them from a well established placement. Against that would be the long-term argument that when the child at a later date sought further information about their adoption they may struggle with knowing that their birth parent wanted to resume their care and this was opposed by their adopters.

It is therefore likely to be rare for the provision in regulation 21 to be used and would be most likely to apply where a parent who had agreed to the child's original accommodation had disappeared or did not agree to the adoption plan but made no effort to assume care of the child. In that case, the pre-panel discussion between the social worker and the legal adviser would be particularly important as the application for the PO with authority to adopt would need to be made within the required 28 days from the receipt of the notification as a maximum - and less if the parent returned the certificate earlier signifying they did not consent. This application must include both the request that the order includes the provision granting authority for the child to be adopted and also the ancillary provisions referred to in section 82(1)(a) of the 2007 Act.

It is therefore likely that the majority of the applications for a PO will be for a child already on a supervision order.

Referral to the Reporter

These steps apply to adoption agencies who are local authorities. Where the adoption agency is a registered adoption service they will already have been required to refer the child to the local authority where the child resides under regulation 20(2)(b) if they are not already acting in agreement with the local authority and the parent does not consent to the adoption. Regulations 22 and 23 basically refer to what is known as the 'advice hearing'. (see ANNEX D)

Part VI refers to the need for referral to the reporter when applying for a PO with authority to adopt. The legislation provides other situations when an advice hearing is required as laid out in section 73(4)(c)(i) or (v) of the 1995 Act. This brings in adoption without applying for a PO and application for a PO where that is the long-term order proposed and does not include authority to adopt. This again underpins the similarities in planning for the long-term security of a child through adoption or through a PO. As part of developing procedures within the local authority for putting these two legal routes on a similar footing, consideration should be given to notification to parents about an application for a PO following on from an agency decision and similar timescales should be followed. This will both confirm officially to the birth parent the direction of planning and also establish the path to be taken giving them the same legal opportunities to put forward their views as in an application that includes authority to adopt. In all these situations the direction of the local authority planning for the child should not come as a surprise. This will depend on the clarity of the assessment and the plan for the child throughout the time the child has been on supervision and the openness at any hearing review between the LAC review and the adoption panel. The report to the adoption panel should summarise the reasons presented by the social worker endorsed by their line manager. The minutes of the panel should include comment on the robustness of these reasons and should be the basis of the reasons referred to in Schedule 8.

Following on from the referral for an advice hearing the next timescales vary depending on whether or not the hearing agrees with the local authority plan. This allows for time for the local authority to review its decision if the children's hearing does not support the adoption decision. The regulations do not define the steps the adoption agency should take in reviewing its decision but do say it should take into account the report from the hearing and 'any further recommendations it may wish to seek'. Agencies may include in their procedures the possibility of further discussion at the adoption panel before the Agency Decision Maker makes a decision on whether or not to proceed.

In considering any recommendation and decision about applying for a PO the agency should be clear about the need first of all for the transfer of the mandatory right to determine residence and the responsibility to provide guidance appropriate to the child's stage of development. The local authority has responsibility to provide guidance until the child becomes 18 unless the PO is revoked under section 98(1) or automatically ends with the granting of an adoption order under section 106 of the 2007 Act. All other rights and responsibilities only apply until the age of 16 as a result of sections 1 and 2 of the 1995 Act. Where the local authority continue to be responsible for a child under a PO they are therefore in a similar position to any parent with a young person who may wish to make their own decisions such as leaves home. Their duties towards a child who remains looked after continue as do the after-care responsibilities until the young person is 19. This is consistent with the whole concept of the use of a PO to provide security for children who need long-term care away from their birth parents. Although adoption may not be the best solution or feasible - and the child may not want that total legal break from their birth family - they have at least as much need for support and guidance into adulthood, and are frequently more vulnerable than their peers. In the use of the Looked After Children reviewing system for these young people and also the introduction of after-care services, the local authority procedures need to reflect the significance of the role played by the child's carers in providing the child with long-term security and the reality of having family support through this transition, as well as demonstrating the support and guidance they have assumed towards a child who is not just 'looked after' but for whom they have taken clear responsibility. Obviously, where a PO includes the authority to adopt these mandatory rights and responsibilities will transfer to the adopters on completion of the adoption.

In making an application for a PO under section 80 of the 2007 Act this must also include consideration of the ancillary provisions. The court must ensure that every parental responsibility and every parental right is held by a person. 'Person' here includes a local authority. These responsibilities to the child in section 1 of the 1995 Act are to

  • safeguard and promote his or her health, development and welfare
  • provide direction
  • provide guidance
  • maintain contact
  • be the legal representative if required.

The rights in section 2 are to

  • control, direct and guide the child
  • maintain contact
  • be the legal representative if required.

There is also a parental right to regulate residence, but this is automatically removed when a PO is granted, Section 87 of the 2007 Act.

The use of the ancillary provisions in the 2007 Act enable the local authority to consider whether it would be in the best interests of the child to share these responsibilities with the birth parent, vest them in another person - in particular the carer of the child - or remove them from a birth parent who has failed to carry them out and is not regarded as likely to carry them out in the interests of the child within the foreseeable future. Where the application for a PO does not address a specific responsibility or right the 'default' position will be to leave it with the birth parent, except the responsibility to regulate residence, which is automatically removed. This is where it is vital that this is fully discussed with the legal adviser in preparation for moving forward following the agency decision on the plan. This also needs to be part of the discussion with both the birth parents and the child so they have a clear picture of the local authority's intentions and can express their views accordingly. As local authorities become more familiar with these provisions they should consider developing more 'user friendly' information with examples of what this will mean in practice.

In reality this means that an application for a PO with authority for adoption will seek the temporary transfer of all responsibilities and rights to the local authority, both mandatory and ancillary, until these are transferred to the adopters by the adoption order. Where the application is for a PO to underpin a long-term fostering or residential placement or other accommodation of a child there needs to be a focussed discussion of the responsibilities and rights that may be shared or left with a birth parent and where it is necessary to seek their removal from a birth parent who has been unable to keep a child safe or act in their best interests.

Where the plan is adoption there will continue to be a need to make choices about the legal route where the child is not voluntarily and actively relinquished. This is basically between the application by the local authority for a PO with authority for adoption and a petition by the prospective adopters with local authority support including timescales in the event of active opposition by the birth parents. The guiding principles are that the intentions of the plan and any placement made with potential adopters are open and transparent and that the route will enable a fair presentation of the evidence and any opposing views in court as soon as possible.

Areas to take into consideration

  • Where birth parents are actively opposing the plan and seeking the return of the child to their care they are likely to view the process as fairer if the child is not placed with adoptive parents until they have had their opportunity to put their case in court.
  • Where the child is continuing to have contact with contesting birth parents pending the hearing of an application, work with the child may be affected by conflicting views amongst the people around her/him. This will have different implications depending on whether the child is with temporary carers or with a family who may adopt her/him.
  • Where the views of the child are clear and they are prepared for a move, delay may be particularly damaging.
  • Some prospective adopters may be fully aware of the risks of a contested case and feel confident about going ahead themselves and in control of initiating the legal process, others may be unhappy about embarking on a legal process which places them in direct conflict with a child's birth parents.
  • Where there are no suitable adoptive families immediately available for the child the added security of a PO with authority for adoption may be helpful in finding a possible family.
  • Where the route to adoption involves placing a child initially on a fostering basis, the agency will need access to a pool of adopters which includes those who understand the differences between fostering and adopting a child and are prepared and approved for both tasks in relation to a child where the plan is adoption but this is not legally secure. The agency should have a clear understanding of the differences between terms such as concurrent planning, twin track planning and fostering with a view to adoption in contested cases.
  • The opportunity to avoid unnecessary moves by placing the child on a fostering basis with approved adopters.

Implications at different stages of seeking a permanence order

Once the local authority has followed all the timescales for notifications, completed the referral to the reporter for the Advice Hearing and received its report and lodged the petition for the PO there will be a period during which the responsible local authority, the Hearing and the court will all have a role. The local authority will obviously continue to have responsibility for the day to day care of the child and also the statutory Looked After Children Reviews will continue. Where the local authority considers that some change of circumstances is required after the application has gone to the sheriff for a PO they will need to go back to the Hearing who will prepare a report for the court. The court will then decide whether to hold a court hearing at that point or send it back to the Hearing. At this stage the Hearing cannot undermine what is happening in the sheriff court but the sheriff court needs to take account of the Hearing. It may be that a child needs to move placement immediately or a particular issue has arisen which indicates a change in contact arrangements. If the court is not at a stage where they can resolve the PO application it may either make an interim decision itself or refer the matter back to the Hearing to make an interim change to the supervision order. It is important that during this period the local authority and the reporter continue to monitor the timescales for review of a supervision order - while the case is pending in the court this will continue to be the legal security for the child. If the court case is delayed the minimum of an annual review of the supervision order is still required, otherwise that order will expire.

Once the PO is granted the court is required to terminate the supervision requirement if it considers it will 'no longer be necessary'. Local authorities should therefore state clearly in their application as to whether the supervision requirement continues to be necessary or not. It is anticipated that normally the requirements will be terminated but there is some discussion in the annotated version of the 2007 Act in relation to section 89 about the situation in the event of an appeal. Where an authority considers there is a risk of an appeal they may request continuation of the supervision order until it is clear there will be no appeal and then ask the Hearing to terminate it.

The 2007 Act makes provision, mainly in sections 82 and 91, about the use of the ancillary provisions in a PO which are particularly relevant when some of these may be shared. Where authorisation to adopt has been granted it would normally be expected that it is accompanied by termination of the rights and responsibilities of the birth parents. These will be held temporarily by the local authority along with their mandatory provision until they are transferred to the adopters by the granting of an adoption order. There is a strong responsibility here on the local authority to secure the future well-being of the child. While an authority may hold a general duty to a child under section 17 of the 1995 Act to act as a responsible parent, when the child is looked after but not on a PO, this is alongside birth parents who still hold their parental responsibilities and rights and often also with the involvement of the Hearing who can supersede some of those rights in the interests of the child. Children who are subject to a PO with authority for adoption will be one group within the wider group for whom the local authority hold responsibility through a PO. Good practice would indicate that authorities should consider generally their policies, procedures and services for children subject to POs, and within this monitor their effectiveness in completing adoption arrangements for those children where this is the plan.

Likelihood of placement

Section 83 of the 2007 Act lays out all the conditions to be met in seeking a PO with authority to adopt. One that is specific to this form of PO is the requirement to satisfy the court that the child has been, or is likely to be, placed for adoption. The range of children now placed for adoption is very diverse and there are a multitude of factors that adoption agencies consider in linking and matching children - age; needing placement with siblings; ethnicity; contact needs; medical conditions and disabilities; developmental risk factors and the whole range of emotional, social and behavioural challenges. There are sources of information about children already placed, especially through the different resource sharing arrangements across the country. The growing body of post-adoption research also illustrates the reality of the diverse population of adopted children, especially where this research has paid particular attention to the effectiveness of adoption for older children or those with additional needs. The key questions here for adoption agencies are about their planning, preparation, recruitment and support strategies. You will only place school age children if this is an option you consider if they cannot return home and if you actively recruit families for this age range. Your optimism for the sustainability of such placements will be affected by the strength of the preparation and support of both children and adoptive parents. Meeting children's needs arising from their religion, ethnicity and culture will be most effective if you reach out to different communities. Managing complex contact needs will reflect both how you build an understanding of this into preparation and also the robustness of your post-adoption service. Placing children with medical needs or disabilities depends on a belief that these children have the same right to family life as any other child. All these situations depend on the quality of the assessment of the child's needs, including their potential for becoming part of a new family. For some children the life-long dimension of adoption has particular value. This may be because they may take longer to become independent - or they may have a disability which means they will never be fully independent so need a family to continue to keep their needs in mind. For other children, their birth family may be unknown, have disappeared or be unavailable. Agencies will need to consider the likelihood of placement, taking into consideration both the needs of the child and the availability of appropriate resources.

Of course, the reality of adoption practice indicates that there are children who should be placed for adoption but it has not been possible to achieve this for them. Identifying a child's need for adoption and pursuing an active approach to finding an adoptive family will be a good start, but for some children it may be necessary to keep open the options of either adoption or a secure long-term foster family. This is where it may be valuable to consider a PO to establish a more secure legal basis for planning permanence and also make a clear statement about no longer considering return to birth parents, but with some flexibility to explore the best options. At a later stage, if adoption becomes feasible and right for the child, there will be the option of seeking an amendment granting authority for the child to be adopted in accordance with section 93 of the 2007 Act or direct petition to adopt. The important aspects of taking this approach to planning for a child, where the likelihood of adoption is under question, are: firstly, it should be transparent so that the birth parents know the range of options being considered for their child and can express their views in any legal action taken as a route to achieving permanence. Secondly, the child, both when plans are being made and in looking back on the process at some future date, should know that all possible avenues were actively considered in trying to act in their best interests. Thirdly, for the agency, it keeps adoption on the agenda even if this seems difficult or unlikely to be achievable.

Where a PO with authority for adoption has been granted but the child has not been placed with adopters the child should continue to be reviewed at least as regularly as any looked after child to ensure that the plan for permanence is actively progressed. This is laid out in regulation 26. The local authority which has obtained the PO with authority for the child to be adopted should decide whether such reviews should be carried out through their established Looked After Children reviewing structure or at the adoption panel - and if the Looked After Children system is used, whether the adoption panel should be notified of this. The requirements of this regulation are to take into account the views of the child to the extent they can express these and also the views of any person with responsibilities and rights under the order. This will usually just be the local authority, The requirement in section 26(3)(b) to continue to assess the child's ongoing needs, question the reasons as to why no placement has been made and look at the action that should be taken not just to safeguard the child's welfare but also to promote it, puts the onus on the authority to be proactive on behalf of these children. In considering the arrangements for reviewing these children it will therefore be important to bear in mind the responsibility to actively monitor progress, make the case for additional resources if these are necessary to achieve the necessary outcome for the child and ensure there is no unnecessary drift.

Where it later appears that a permanent fostering placement is the best option for a particular child, this should be referred back to the adoption/permanence panel to discuss the need to apply for a variation to the PO to remove the authority for adoption and to reconsider the ancillary provisions.