Treading carefully

Children in the care of a local authority are now largely the only children available for adoption since the advent of single parenthood and abortion. However, this, together with the government's continuing zeal for such adoptions, should not prejudice child protection, parental rights, or indeed the hard-to-adopt children lingering within the care system.

Such adoptions are already highly incentivised, used as they are as a local authority performance indicator and coming with a standard £25,000 bonus irrespective of how difficult it is to place a child.

In addition, the local authority's preference to use other councils, or chosen 'charitable partners', such as Coram, to find families willing to adopt has resulted in the death of most private adoption agencies.

Conflicting interests

The chairman of the British Association for Adoption and Fostering (BAAF), the adoption industry's promoter, is also the chief executive of CAFCASS, a connection which is possibly illegal and definitely a potential source of conflict between CAFASS' remit to act in a child's best interests and BAAF's to promote adoption.

This conflict is accentuated by CAFCASS' partnership with Coram, the third largest adopter of children, and the practice of subcontracting Coram to perform all the local authority's child protection and assessment duties.

Coram promotes concurrent planning, a process which expedites adoption by placing children immediately with their prospective adopters.

The process allows 'charitable partners' like Coram to provide the family support for local authorities, despite the conflict of interests between this provision and their adoption role per se, and the payment of a £35,000 fee upon an adoption '“ which by necessity is resultant upon the failure of their support package and their assessment of the parents. In addition, as charitable bodies, they are largely unaccountable for the quality of their services.

In order to form a bond with adopters, parents are only allowed an average of three contact visits per week, at the charity's offices, sometimes supervised. But after such a bond has formed, parents will find it almost impossible to convince a judge that adoption will not be in the child's welfare.

Of the 147 babies and infants involved in pilot concurrent planning projects, eight were returned to their parents. In the Manchester/Goodman projects, only one child out of 11 returned home, and, of the 37 actions supported by Coram in the Family Drug and Alcohol Court, only two families succeeded in keeping their children.

Without a parent's express consent, or satisfaction of the care threshold criteria, a child's removal and/or adoption will be unlawful and in breach of a parents' human rights, actionable by section 7 of the Human Rights Act, in conjunction with article 8 of the Convention on Human Rights (right to a family) and article 6 (right to a fair trial), either on a freestanding basis or as part of any on-going care, or judicial review proceedings.

In Re M (Care Challenging Directions by Local Authority) [2001] 2FLR 1300, for instance, it was held that a local authority's decision to adopt, made without parental involvement, was unlawful.

Vulnerable parents

Vulnerable, unrepresented parents may find that the only 'support' available results in the unlawful removal of their children, as 'probably many mothers who believe, quite erroneously, that a local authority has power, without any court order, to do what the local authority did', in the words of Mr Justice Munby in R(G) v Nottingham City Council [2008] EWHC 400.

The case involved the removal of a baby at birth from her 17-year-old 'eligible child' mother, in pursuance of an 'agreed' care pathway plan, solely on the illegal basis that the mother had not objected.

The council in the case still managed to obtain an interim care order even though the only protection issues were the mother's vulnerability, lack of support and suitable residence. This was also despite the legal requirement that there should be 'an imminent risk of really serious harm' (Mr Justice Ryder in Re L-A [2009] EWCA Civ 822) in addition to the consideration of 'whether the continued removal of (a child) from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care'.

Social workers are generally instructed to concentrate child protection on the under fives, and less than 20 per cent of all child protection plans in England in 2010 were due to physical or sexual abuse.

With care applications at an all-time high, averaging over 800 per month, and a senior family court judge describing social workers' actions as 'like Stalin's Russia or Mao's China', we must question why child protection is now so adversarial and predetermined, and ensure that the right children are taken into care for the right reasons.