Adoption Reforms NSW style: A Comparative Look ACWA Conference Nicola Ross & Judy Cashmore 18 August 2014

MAIN THEMES  Need for reform - continuing tension between the child’s right and need for secure LT family for life and parent’s capacity to ‘become’ good enough parent  What approaches have other countries taken? And changes over time to current approaches?  Pros and cons?  What do we know re adoption and foster care outcomes ? Transferable? Research issues …  What works best for children – and their views?

Why the need for reform?  Continuing evidence that many children in care do not have stability and are not doing well in care and after care  Need for new approach to permanency  Increasing numbers of children in care and shortage of foster carers  Need for new source of carers and opportunity for children in certain circumstances to be adopted by foster carers

Numbers of children in care Rate per 1000 Time ARate per 1000 Time B Australia England Canada US Sweden Norway Belgium Germany Netherlands Denmark Finland Gilbert et al (2011)

Reasons for low adoption rate  Cultural attitudes to adoption – Stolen Generations, Forgotten Australians  Greater focus on kinship care  Loss of foster care allowance and other entitlements  Caseworkers’ lack of time, resources and skills to discuss with parents and process adoptions in Supreme Court  Costly court proceedings if parent does not consent to adoption – not wanting to be seen to relinquish or ‘reject’ child  Children’s resistance - not wanting to relinquish family ties  Replacement by guardianship or permanent care orders eg Vic

NSW Hierarchy UK US 1. Restoration to parents 2. Long-term guardianship to 18 to relative or kin 2. Legal Guardianship Special Guardianship 2. Adoption 3. Adoption (open)3. Adoption3. Legal Guardianship 4. Parental responsibility to the Minister 4. Residence Orders4. Permanent Placement with a fit and willing relative 5. Get rid of this box 5. Another planned permanent living arrangement.

Australia (NSW) United KingdomUnited States Adoption by relatives No Yes Guardianship Order Open adoption Decreasing? Concurrent adoption NSW Fostering for adoption No No Preference for adoption over kin No Yes, after parents Subsidised adoption No Increasing subsidies Significant to states & individuals % adopted out Very low now13%20%

Australia (NSW) United KingdomUnited States Supported adoption ? Increasing supports – see C&FA 2014 Greater for non-kin adoptive carers % of kinship foster care 47% (56% NSW) 11% but increasing 27% ↑ subsidised kin care/ informal arrangements Subsidised kinship care Minimal SGOs yes, but often no orders so no funding Increasing funding of guardianship (often kin) % in foster care Increasing Decreasing Subsidised foster care √ √ √ Children leaving care – ‘freed’ but no adoption Not yet Currently numbers of children awaiting adoption 11% +

Selwyn & Masson 2014 Adoption Special Guardian/ ship Orders Residence Orders No of children 37,3355,9125,771 Av age at ‘entry to care’ 14 months3 yrs 4 mths4 yrs 5 mths Time to final placement Longest – children aged 4 yrs on average On average - aged 5 yrs On average - aged 6 yrs Disruption rate 3.2% over 12 years 5.6% over 5 year period 25% over 6 year period When2/3 rds during teen years Within 2 years - esp if not kin

Philosophical tensions and issues  No easy answers - long-standing debate between – child’s need for stability and timely decision-making – parents’ need to meet demands for ‘good-enough’ care  Tension foremost in time-frames  Dispensing with consent of birth parents  UK Courts – recent cases require ↑ in quality evidence – may create tension with government policy to speed up adoption  Need for post-adoption support – forecasting problems vs assuming families will cope privately and not require support  Purpose and efficacy of contact issues – reduced in UK  Role of research evidence – appropriate translation

Trends in the US & UK  US, UK and Australia are all advocating “permanency”  In Australia (NSW) we are moving to a public health model of child protection, which suggests a focus on primary care & prevention, family support  US approach heavily favours adoption as a solution, but new emphasis on kin care subsidies and services to restore children to families. Reducing numbers in care not only due to adoption: some children never adopted.  UK heavily focused on adoption as means of securing permanency ( ↑numbers and speed) – but evidence tension with courts in their traditional role of providing checks and balances on state intervention into family.

Recent English Cases in tension with UK government policy on adoption  Recent Supreme Court cases of Re B (Care Proceedings Appeal) [2013] UKSC 33, followed by Court of Appeal cases of Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146 and Re S (Appeal from Care and Placement Orders) [2014] EWCA Civ 135 –  Court focus - limits adoption to a ‘last resort’ (fundamental reappraisal of adoption as a child protection mechanism & proportionality requirements)  Increased scrutiny of social work evidence to support this in comparison to other options for care ( ↑ delay)  Lowering leave hurdle for parents to have a placement order revoked or to contest adoption

Permanency  3 forms of permanency: legal, emotional, physical  Trust, feeling loved, cared for – sense of security makes the difference at the individual level  Children’s perceptions that matter  Relationships esp with parents and caregivers mediate the effects of structural variables  Social support – family level

Permanency: a narrow legal construct?  Criticism of the US construction of permanency as equated with narrow legal concepts of adoption  Permanency equated in social sciences approaches to the sense of security a child has that they belong in a family – not severance of legal ties to birth family  Adoption developed as a private law concept in 20 th century in context of consensual decisions; now key mechanism in public law, coercive state intervention  Adoption concept needs legal renovation; danger of not recognising the new context in which it operates and overemphasising it as a panacea

Focus of Adoption Research  Focus on outcomes, identity and contact between members of child, adoptive and birth parents  Relatively few studies directly with children re their experiences  Reliance on UK and US research – little in Australia  Not a singular experience – diversity and different contexts  Differences between :  Local and intra-country adoption  ‘Known’ and ‘unknown’ adoptions and  Adoption by foster carers and other unknown  Challenges in trans-racial adoption

Adoption Research  Focus on outcomes, identity and contact between members of child, adoptive and birth parents  Relatively few studies directly with children re their experiences  Reliance on UK and US research – little in Australia  Not a singular experience – diversity and different contexts  Differences between :  Local and intra-country adoption  ‘Known’ and ‘unknown’ adoptions and  Adoption by foster carers and other unknown  Challenges in trans-racial adoption

Factors affecting adoption and LT foster care outcomes  Age at placement – expectation re age of child  Time in care and number of earlier moves  Severity and duration of abuse and neglect  Children’s emotional and behavioural problems  Carer’s age, commitment and resources  Child’s wishes – ambivalent or opposed  Presence of other children  Children of carer near age or less than 5 years  Siblings / other foster children

Research issues  Somewhat mixed picture: Issues to consider  Comparing ‘like’ with ‘like’ – selection and ‘survival’ biases  Correlation vs causation –  Nature, size and quality of sample – national rep studies  Going beyond disruption rates  Outcomes - quality of relationships and felt security  Whose reports? Hearing from children  Best evidence – longitudinal studies  Pathways of Care study – NSW important opportunity  Beyond 18 – Vic larege-scale longitudinal study

NSW Pathways of Care study 

Children’s Rights Issues  Children’s right to a family – balance  Best interests and rehabilitation as primary objective  Children’s rights to family, to identity and to be heard and to participate  Regular (independent) evaluations of practices, programs  * UN Committee Concluding Observations

Policy Implications  Importance of varied options to meet needs of particular children : adoption no panacea for all but can meet needs of very young children if undertaken early (research evidence)  It is an important option for children, but risk it will be favoured because of resource implications in difficult fiscal times; not because it is only option for individual children  Introduction of adoption as preferred approach needs to be evidence-based and accompanied by support