Me? Adversarial?

I had an interesting experience the other day. During a discussion about child protection and the recording of meetings a participant cautioned us to refocus on the children who were, it was said, getting lost. The recording of meetings was “all about the needs of the parents” and a dangerous distraction from the need to focus on the child’s needs. Well, yes, possibly. But that depends a little on whether you view the world in binaries – parents v child, them v us, important v distraction.

Although I understand the sentiment and acknowledge the problem (children DO sometimes get “lost” somehow amongst all the feverish adult activity to help them – and some parents are skilled in distracting professionals from the real issues / their own behaviour), I’ve realised that “it’s all about the parent’s needs” and “focus on the child” are phrases that can sometimes used to shut down attempts to challenge social work professionals who are not prepared to work hard enough to engage, work with and support parents – or who just experience challenge as a threat. I’ve often been told by an irritated social worker that they are there for the child not the adult.

Well, I’m sorry to say that I disagree with that limited way of seeing things. It’s just NOT as simple as parent versus child. A social worker is there to help make a child safe, to help ensure the child has a functional family unit in which to thrive and grow. You can’t do that without taking the parents with you, without helping the parents to make change, without building trust. And sometimes that means continuing to work with parents even when they make you want to bang your head against the table repeatedly (trust me, I have this urge with many of my clients). There is of course a time, for some families, when professionals have to hold their hands up and say “Enough. We cannot make this work.” But that time is not as soon as you’ve identified the problem, it’s after you’ve worked damned hard to resolve it. I’m pleased to see that the new head honcho of the ADCS seems to think so too.

In my view a child’s social worker has a DUTY to try and engage parents who are on the edge of the rabbit hole, ready to leap head first into a world of conspiracy theories about corrupt social workers and adoption bonuses if nobody gives them another way. To give up on distrustful and suspicious parents is an abnegation of that duty to a child. Because some of those parents have the potential to draw back from the brink (See www.survivingsafeguarding.co.uk for one such parent). And all parents who are working with child protection professionals are so very, very vulnerable to the negative stories and dangerous information out there on the internet – we have to help them see another way. This is why conversations about recording meetings are so important (as one piece of the puzzle) – a parent who wants to record meetings is probably fearful. This should be a flag to social work professionals that they need to work extra hard to build trust. We can’t help all parents, but we have to help those who are capable of being helped. And just because a parent is suspicious, fearful of engaging or even unpleasant and hostile does not mean the potential is not there. I’d be all those things if you wanted to take my child.

I set out a precis of the above during the discussion, and indeed the momentary positing of “parents needs” as necessarily in conflict with those of the child DIDN’T shut down debate – but I still left the session with an odd sensation – which I realised was actually quite familiar : the sensation that it can sometimes be the child protection professionals who see things in an adversarial way, rather than the lawyers. That it can be social workers who wheel out the false dichotomies about “the needs of the child” versus the parents “demands”. None of which is to say that we shouldn’t continuing to check in on how well we are focusing on the child, or that raising that issue was wrong (or that some parents might not use recording inappropriately and not at all for their child’s benefit) – but rather than using concern about what *might* happen to halt or stymie a discussion, how much better to thing about ways to reduce those risks? I guess that lawyers are used to switching sides, to seeing things from a range of different perspectives. If I ONLY acted for parents or ONLY acted for LAs or ONLY acted for children I guess I might get a bit “stuck” too.

It was a really constructive discussion, and together we went some way I think to better identifying the risks and difficulties and to thinking about how to overcome or avoid them – we moved from hand wringing about the possible risk of child suicide to considering what practical steps might reduce risk or prevent misuse of information. I think the guidance published by The Transparency Project was well received – and most importantly generated some genuine open thought about how we might do things better. It also gave me some new ideas about some of the legal and practical complexities that would need to be worked through if recording were to happen and to happen more regularly.

So it was just a momentary sensation, before we moved on and rolled up our sleeves and talked nuts and bolts – but it is odd as a lawyer, who often has to listen to social work professionals bemoan the adversarial approach of lawyers and the tendency of court process to lose focus on children, to realise that sometimes it is the lawyers who are least adversarial of all. It is so important that everyone involved in the child protection and family justice system is able to listen to the perspectives of all participants – we criticise parents for failing to see things from a child’s perspective, but we must be able to imagine the reality of a parent too if we are to be effective in helping them to engage and through doing so to do better for their children. And we also ought not to assume that when a lawyer (speaking in a learning environment rather than acting for a client) is suggesting something that may assist parents they are doing so with disregard for the potential advantage or risk to the child too. I had actually thought of that! In spite of the stereotypical reputation of lawyers, the family lawyer is nothing if not solution focused. We have to be. We all secretly enjoy a little forensic dust up now and again, but if all we wanted was the VERSUS bit we’d be in another field of law. We are actually all on the same side!

 

Not So Special Guardians

Since the conviction of Special Guardian Kandyce Downer for the murder of little Keegan Downer there have been reports that the government has tightened up the assessment process for special guardians in the hope of preventing this sort of thing happening again (see here for example in The Times [paywall]: Adoption Loophole Is Tackled After Baby’s Death. In fact although Keegan died last September, the review of SGOs was already underway before then, probably in part as a result of the tragic death of another child under special guardianship (Shanay Walker), along with representations made by adoption organisations (BAAF).

The review led to the tightening of regulations in February of this year, some months before the conviction of Kandyce Downer. The Serious Case Review about Keegan Downer’s death has yet to conclude, although it seems likely that the bulk of the work has been done and the reviewers have been awaiting the outcome of the trial before finalising their report.

Until the SCR has been published we don’t really know where the blame lies (if indeed it can be laid anywhere other than at the door of Kandyce Downer). We don’t know where the child protection system went wrong or indeed if this death was preventable in the sense of it having been possible for this to have been foreseen. Maybe the special guardianship assessment was weak, maybe not.

 

There has been a lot of rhetoric about the risks of SGOs in the wake of this case (not just in the wake of this case but especially so), for example :

Hugh Thornbery, chief executive of Adoption UK, has urged the Government to tighten the laws surrounding SGOs, which he said have increasingly been seen by local authorities as a “cheap option” even though it leaves children in “potentially risky placements”…

“Some may say SGOs are a quicker and less costly alternative to adoption at a time when councils’ budgets are cut to the bone but we believe this flies in the face of good practice and common sense,” said Mr Thornbery.

“By taking a child from birth parents and placing them with someone who is only ‘just good enough’ totally fails to understand the quality of parenting that these children will need.”

In the same article containing the above Adoption UK quote, we hear Coram BAAF making a similar complaint.

John Simmonds, director of policy research and development at Coram BAAF, said that a lack of time and resources leads to local councils making rushed decisions about placing children with special guardians. “There is a very real risk that by placing a child with a special guardian, the child can lose contact with the local authority very quickly after the order is made,” he said.

Whilst I welcome the tightening of the assessment process for SGOs these criticisms are criticisms of SGOs themselves not just the assessment process. I’m not sure of the logic in suggesting SGOs are inappropriate because they lead to a loss of contact with the LA very quickly – once an adoptive order is made the same applies and complaints about the lack of support for adoptive parents are commonplace (and acknowledged in recent government policy).

Although the subbie who wrote the headline for the Telegraph article I’ve been quoting initially made the slightly large mistake of referring to Kandyce Downer as a foster carer (thus rather missing the point of the article! It’s now corrected), the article correctly places all this in the context of the supreme irritation of some in the Adoption establishment at the impact of Re B and Re B-S, saying :

The National Adoption Leadership Board warned that the two judgements “resulted in inaccurate assumptions” drawn by local councils about where to place vulnerable children. Following the judgements, the number of adoptions has halved while the use of SGOs has rocketed, with 3,330 issued between April 2013 and March 2014, compared with 1,290 in 2010. This rose again to 5,300 in 2015.

Which leads me to ponder about something that ministers did NOT do in light of the SGO review (which I confess I am not completely au fait with) : they amended the guidance on assessment but didn’t amend the task set out in statute for the judges. This is interesting, because whilst an SGO assessor is now directed to have a more acute focus on the longer term capacity to care and meet a child’s needs as a SG, there is no equivalent refocusing of judicial attention. Of course a judge will be looking at a more honed and robust SG report (one assumes) if it has been written post Feb 16 and one would hope that would help a judge make better decisions. But it would have been open to ministers to take steps to require a judge to apply the expanded ACA 2002 welfare checklist to decisions about special guardianship as well as decisions about adoption. But they didn’t do that. And now I’ve thought of it I’m sort of wondering why…wouldn’t it have closed the loop and forced everyone to sing from the same hymn sheet? Perhaps the answer is that secondary legislation to amend the regulations is easy and quick, whereas amendments to primary legislation are more complex and slow – the SGO Review Report promises that the government will “Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship”. Perhaps that is not abandoned as much as it is just not yet actioned, but at the moment it seems rather anomalous.

Adoption Debate

Yesterday I participated in the Adoption Debate at the Bristol Civil & Family Justice Centre, hosted and chaired by His Honour Judge Wildblood QC, Designated Family Judge for the Bristol area. You can see a few tweets on #adoptiondebate, although in fact, due to Olympic tweeter Sarah Phillimore’s absence (stuck in distant court) there was less twitter frenzy than usual.

Kathryn Skellorn QC and Zahid Hussain spoke for non-consensual adoption (10m then 5 m speeches), and Frances Judd QC and myself spoke against. Then there were contributions from a pretty amazing panel including journalist Louise Tickle, Annie of Surviving Safeguarding, a representative of The Potato Group June, who spoke both as an adoptive parent and who read contributions from adopted young people, and Alistair Crine a local Guardian from CAFCASS. We also heard briefly from visiting Danish judges about how things operate there (very very little adoption, although from discussions with them after the event it seems pretty clear that their version of foster care, which is quite common, is much closer to adoption than ours).

The debate was well attended by a mix of journalists, parents, campaigners, lawyers, social workers and guardians, students, judges and academics – and contributions from the floor and panel were respectful, varied, heartfelt and listened to with respect. It was a genuinely interesting discussion, and I only wish we could have arranged a little more time for contributions from the floor, (this is difficult because of the time the court building has to close). There were a lot of points raised, particularly about post-adoption contact, that warrant a whole event of their own.

Although it was of course a bit artificial to call for a vote on non-consensual adoption or none at all, because of course this does not capture the complexity and difficulty of the issue – we did hold a vote. The vote was about 2/3 “for” non-consensual adoption – as an option to be available to the court, whilst about 1/3 said no to non-consensual adoption at all. When the audience were asked (at my suggestion) whether they thought adoption orders were made too easily the overwhelming majority of attendees raised their hands.

I’m really proud to have participated in this event, which in spite of the difficult subject matter, was good fun and thought provoking. Although it does not represent entirely my personal view, I thought you’d like to see the notes of my speech against non-consensual adoption (not quite as delivered, not least because I got cut off in my prime by the ruthless chair at the 5 minute mark!). The other three speeches were really excellent (Kathryn pulled no punches and wiggled her glasses impressively, Zahid and Frances were models of calm, measured delivery), whilst I’m just glad I didn’t fall off the dais in a Lemsip induced stupor – but for what it’s worth, here is my bit :

 

Adoption debate

Junior speech AGAINST

 

When children are adopted, a life story book is often prepared for them : An account of why they could not live with their birth family and how they came to live with their forever family. Naturally such narratives are made manageable – to protect a child against upsetting information, information that may make them wonder if they are like the parents who hurt them?

 

Whatever a life story book tells a child, that child – later adult – will imagine, hope, worry and wonder about who and where they came from. They may build their own story. And we know that parents whose children have been removed have their own narratives.

 

All of us have a profound need for a story that explains things in a manageable way. A narrative arc, with structure and resolution. A tidy, palatable version of a messy and complicated world. This is how we process events and survive in the world – we repeat our stories for comfort and by repeating them, reinforce and adjust them.

 

So I want to look at the narratives around non-consensual adoption. We can use this debate as a metaphor. Kathryn and Zahid give you one narrative : Frances and I another. We are pitted against one another in a classic adversarial contest. One or the other. You choose. We all know life is more complicated than those simplified, black and white stories– but we are suckers for easy choices between a good thing and a bad thing: inadequate, neglectful and abusive parents are bad, adoption is good. But of course even abusive parents are still part of the story of an adopted child.

 

I want to suggest that when we talk about non-consensual adoption in this country we struggle to acknowledge and keep hold of the fact that adoption is not easy. That the stories don’t all end happily and that they neither begin nor end at the point of adoption – they continue. In our impoverished public debate and in government announcements adoption is talked of as if it is in itself A GOOD THING. There is official dismay when absolute numbers of adoptions fall. Why? What if the numbers have fallen because less children needed to taken away from their birth families forever – because we are getting better at supporting parents to develop their skills and resilience? The child rescue narrative is really powerful, and there are a number of prominent happily adopted ministers and leaders in the FJS who push it hard to motivate child protection professionals. Because professionals also need a narrative to help us feel that we are morally justified – that we are helping children.

 

For example : in Nov 2015 David Cameron said this (I’ve edited it but you can view the whole speech on conservative home website): I’m a huge fan of adoption…we’ve had some good successes. The number of children adopted is up 72%… … at the moment LAs haven’t got enough choice of children to be adopted…I’m a great fan of adoption and this government has big ambitions to help make sure we adopt more children.

 

You can see in this Cameron extract the easy slippage between an ambition to do adoption better, faster, more successfully where it is the only option into too-easy over simplifications : adoption as a good thing and stops being merely a means to an end and becomes an end in itself. In that speech David Cameron categorically says adoption is better than foster care. But other countries don’t have these narratives about adoption – for example they use foster care with or without contact.

 

So the way we frame it matters a lot. As the Court of Appeal reminded us in Re B-S it’s NOT just about ruling out the parents and going straight to adoption – the court AND PROFS must holistically evaluate all the other realistic options in between – foster care, SGO, really supporting parents to make change over time to prevent the cycle of repeat removals and intergenerational adoption.

 

This is human nature. Debate becomes polarized, stripped of nuance. Newspapers do it. Professionals do it. Parents do it. Children do it. And courts were doing it too – hence B-S.

 

The danger of our rosy narratives about the unmitigated positives of adoption is that we don’t explore or appreciate the potential of other options to be chapters in the complicated stories we construct for children – and we don’t invest in them. And if we don’t invest in fixing and supporting families or alternative care options like stable long term foster care, they wither as realistic options for children.

 

In his inaugural speech this month the new President of ADCS, Dave Hill said this: “There remains effectively an underclass of families often repeating intergenerational cycles of deprivation, lack of opportunity and poor outcomes and we need to focus harder and do better,” he said. “Improving outcomes for children means breaking the cycle of adult disadvantage. Good social work for adults also helps children.”

 

Adoption is no solution to this. Our focus on adoption and the comforting idea of a forever family, distracts us from the real and bigger social problem – and for as long as we allow ourselves to be distracted from tackling those intergenerational cycles we are driving up adoption numbers sibling after sibling – not rescuing children but condemning them. Our child rescue narrative is a false narrative.

 

And so I would urge you to vote against non-consensual adoption – in order that we may refocus on options for children that allow them to build a rich but coherent, complicated but real story to take forward as adults – a story that combines both stability and the continued link with their birth family to which they are entitled.