Chapter 21 Permanence Orders with Authority to Adopt
In this chapter:
2. Children not Subject to a Supervision Order
3. Referral to the Reporter
4. Considerations when applying for a Permanence Order with Authority to Adopt
5. Expectations at different stages of seeking a Permanence Order
Part VI of the Regulations 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. Given that 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, and this chapter of the guidance takes account of this distinction in its structure.
2. Child not subject to a supervision order
This is likely to be a 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 following:
- the date 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.
Response to any challenge from a Birth Parent
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 to address this.
Local Authority responses to address removal
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.
Alternative Option available to Prospective Adopters
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 and can be summarised below.
- 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 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. The counter-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 - will require careful consideration.
Summary of the Provision
In summary, the provision in regulation 21 is most likely to apply when 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 such a case, the pre-panel discussion between the social worker and the legal adviser would be particularly important given that 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.
3. 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'.
Requirement for Referral to Reporter
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 be dependent upon 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.
Local Authority actions following referral for an Advice Hearing
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 continues 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 leave home. Their duties towards a child who remains looked after continue as do the after-care responsibilities until the young person is 19.
Local Authority Requirement to support through to adulthood
Consistent with the whole concept of the use of a PO to provide security for children who need long-term care is the expectation that Local Authorities will provide support through to adulthood. Although adoption may not be the best solution or feasible - and the child may not want a 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.
The need to ensure Parental Responsibilities are held
The making of an application for a PO under section 80 of the 2007 Act 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
- 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 these are automatically removed when a PO is granted, Section 87 of the 2007 Act. Alongside the responsibility to provide guidance, this forms the mandatory provisions of a Permanence Order
The use of Ancillary Provisions
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 and vested in the Local Authority, and the responsibility to provide guidance which is also vested in the Local Authority. 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.
In these cases the application for a PO with authority for adoption may seek the transfer of all responsibilities and rights to the local authority, both mandatory and ancillary, until these are transferred to the adopters through an 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.
Legal routes in the event of opposition from birth parents
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.
4. Considerations when applying for a Permanence Order with Authority to Adopt
The following considerations should be made when applying for a Permanence Order with Authority to Adopt.
- Where the views of the child are clear and they are prepared for a move, delay may be particularly damaging.
- 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 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.
- 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. Research has consistently found confusion amongst practitioner regarding the terminology in this area. 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 advantages of avoiding unnecessary moves by placing the child on a fostering basis with approved adopters.
5. Expectations 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 change 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.
Actions upon the granting of the Permanence Order
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 including the following:
- the need for placement with siblings;
- contact needs;
- medical conditions and disabilities;
- developmental risk factors; and
- a broad 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 challenge for adoption agencies concerns their planning, preparation, recruitment and support strategies. The success of placing a broad range of children for adoption will be determined by how successful adoption agencies are in extending the range of need that can be met through adoptive placements. The assessment of likelihood, therefore, will need to be based upon local practice experience and knowledge, placed in the context of a strategic understanding of need and placement patterns.
The balanced assessment of need and sound recruitment strategies, however, do not guarantee success in individual family finding. Given the challenges of finding adoptive families for some children it may be necessary to keep open the option of long-term fostering. 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 as follows:
- 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;
- 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;
- for the agency, it keeps adoption on the agenda even if this seems difficult or unlikely to be achievable.
Local Authority responsibilities prior to placement with Adopters
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 every six months 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. At this stage, this will usually just be the local authority.
Expectation that the Local Authority will remain pro-active
There is an expectation, set in section 26(3)(b), that local authority's will be pro-active in relation to the needs of children. More specifically, local authorities are expected 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.
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 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.