Is Kinship Care Better than Adoption?

In a recent case in the Family Court the judge decided that kinship care was better for a child than adoption. This is the first known case of an adoption order being successfully opposed. If this judgment has an unjustified influence on social work practice it could have serious consequences for potential adopters and looked after children in need of a permanent home.

The judgment, A and B v Rotherham Metropolitan Borough Council 2014, can be seen here. My interest in this case comes from my experience as a children's social worker. Social workers know that adoption can often be a good way of meeting a child's needs for stable and lasting relationships with caring adults. However, this judgment appears to go against conventional ideas of good child care practice.

The core facts in this case can be summarised in the following way. The mother had previously, while a teenager, had two children by different fathers. They were removed into care and had since been adopted together by one adoptive family. She then became pregnant by the father while living with another man. After the birth care proceedings were immediately commenced and the baby was removed from the mother five days after his birth and placed with foster parents. The child obviously appeared to be of mixed race. The mother and the man then living with her are both white and they jointly registered the birth stating and signing that this man was the father to the best of their knowledge and belief. When the man named on the birth certificate was first seen by the social worker she was surprised he was white but he explained that he had a Burmese mother and this was initially accepted.

Rotherham obtained a care order (unopposed) and a placement order and the child was subsequently placed with the adoptive parents (both white) at the age of seven months. An adoption application was subsequently made and two months later when the child was one year old the child's aunt contacted Rotherham social services and said that her brother might be the father of the child. The brother was interviewed and after DNA testing it was confirmed that he was the father. The genetic father and his sister, the aunt, are black Africans and they wanted the child to be brought up within their family, either by the father, or by his sister, the aunt, or by father's long-term, non-residential partner, who is white, with whom he has a child. All three of them were assessed as potential carers but the father realised that he would be unable to care for the child on his own. The aunt and the father's partner reached a mutual decision to put forward the aunt as the proposed carer. A decision was taken by the Interim Director of Children's Services to oppose the adoption application and recommend placement with the aunt. Once the true facts were known all parties to the adoption hearing accepted that the judge should hear the genetic father and the aunt on the question of whether or not an adoption order should be made.

The dismissal of the adoption application means that the care order now comes back into effect and Children's Services is now required to engage intensively with all the relevant parties and make plans for the child's move to the aunt. The child was 20 months old when this judgment was made.

The judge explained that he was required by statute to consider 'the likely effect on the child, throughout his life, of having ceased to be a member of his original family and become an adopted person'. He said he had a duty to consider the child's whole life, possibly the next 80 years. He admitted this inevitably involved speculation but justified this on the grounds that looking at any person's welfare over the course of a lifetime would have to be speculative. However, in reality it is extremely difficult to predict how a child will turn out in adult life and this is a very unreliable, legal argument.

The assumption was made that the extended family remains a positive element throughout a person's life and this was never challenged. An emphasis was put on the advantages of the child having relationships with family members who share his African heritage and the opportunity for contact with his paternal half-sister. There was less emphasis on the benefits of anticipated contact with his adopted, maternal half-siblings if he stayed with the adopters.

The judge's speculation does not stand up to further analysis. In effect, the judge focused more on family relationships in adult life and less on the child's need for love and security during the early stage of his development, up to the age of 21. It is well known that satisfactory experiences in early life prepare people well for adult life. As they grow up some people leave their family of origin and become independent and, in later life, their extended family becomes relatively insignificant. It is highly speculative to suggest that someone growing up in a genetic family, as opposed to an adoptive family, is more likely to find relationships with members of the extended family beneficial in adult life. The main question should have been where would the child be most likely to receive the nurturing and guidance that would stand him in good stead for the rest of his life.

There were many positive factors in the situation with the adopters. They had cared for the child during much of his life; he was progressing well and had a strong attachment to them. He had been placed with them as a baby and, during the few days in his mother's care, had not suffered significant harm. Therefore, there was a high probability that the adoption would be successful. The child is at an age when he is most vulnerable and the long-term consequences of deliberately disrupting his healthy attachments were unknown. Also, the judge attached little weight to the fact that the adopters had accepted the child as a dual heritage child and were going to do all they could to promote his African heritage.

Information available about the father and his family is insufficient to form a balanced view of their situation. The father claimed he had delayed contacting children's services until the child was a year old because he was unaware he was in care - but it is hard to believe this. This fact was well known in his community and the child's social worker had kept a note that the father knew soon after the birth that the child was in care. Furthermore, the judge described the father's evidence about his relationship with the child's mother as conflicting and said the father told many lies or half truths about this. However, the genuineness of the father's concern about his child's welfare was never doubted by the judge.

It should be noted that the genetic father did not have parental responsibility in law for the child. He was not named on the birth certificate - instead the mother's partner at the time was named as the father. However, the judge did not let this uncertainty about his legal status stop him from allowing the appeal against the adoption and giving the father a sympathetic hearing.

In reality, the father's track record as a parent was not good. He has had two children by different women but chosen to continue his lifestyle as a single person living in a flat. It is not known whether he contributes financially to the care of his child by his long-term partner. If he had simply been seeking a fatherly relationship with this child it is possible that contact arrangements could have been negotiated with the adopters. The Children and Families Act 2014 deals with the need for consideration of contact at the time of an adoption application. Obviously, any post-adoption contact must suit the needs of the particular child, and complex feelings on both sides can de-rail contact arrangements, but it is unclear whether an alternative, practical solution to this problem had been explored in any depth.

Although his sister, the aunt, was assessed as a suitable carer for the child details of her situation are not known. She is a single parent with a son who is little older than the child. She lives in council accommodation in the South but plans to move north. According to the judge, if the child was able to move to the aunt and form a secure attachment with her, it could be a bridge to a relationship with his father which could be beneficial. The aunt belongs to a family with a non-traditional structure and the upbringing of children tends to be shared with the extended family, which is geographically spread out. There are uncertainties about her move north to live near her brother and mother, and how long this will take. Also, there were uncertainties about the capacity of the father to become closely involved in the boy's upbringing and to offer meaningful emotional support.

Finally, the judge accepted the description of the adopters as 'perfect adopters' and so it would have been helpful if he had clarified why he turned down their application. He said: 'After hearing all the evidence and argument, and after due consideration, I am, however, clear as to the outcome, which I do not reach narrowly or marginally.' He makes reference to the legal argument, under the Adoption and Children Act 2002, that the court must not make any order 'unless it considers that making the order would be better for the child than not doing so'. His decision may be based on the 'no order' principle but, if so, his reasoning is unclear.

It certainly appears that the African heritage was given undue significance as a basis for relationships throughout the child's whole life. However, he is a mixed race child and having a particular cultural identity imposed upon him may not be helpful for his individual personal development. The paramount consideration in this case should have been the welfare of the child and, on this basis, the choice between adoption and kinship care would have been more finely balanced. The judge's decision seems to indicate a bias in the child protection system towards kinship care.

Family Courts which deal with public law cases have a difficult task. Judges are faced with the complexities of human frailty and family dysfunction, often without the benefit of hard evidence, and have to make decisions based on the balance of probabilities. They are very dependent on the assessments of social workers who must not only be skilled in court work but also in presenting evidence that is soundly based, well-reasoned and informed by useful analysis. In this particular case there is reason to think that the social work input into the arguments did not represent best social work practice.

This judgment also raises important questions about justice in the Family Courts. There are signs that the judiciary is too easily influenced by political dogma and rights campaigners and is insufficiently in touch with ordinary people and their common-sense notions of justice. Public concern about this case has tended to focus on moral questions about parental rights and responsibilities. Most people recognise that society may have to deal with the consequences of a parent failing to take responsibility for a child by over-ruling his or her parental rights. Further consideration is needed on the question of how much emphasis should be put on the genetic relationship when seeking a permanent placement for a looked after child.

Hilary Searing