Has the time come to reinstate s1(5) Adoption and Children Act 2002?

This blog post has been contributed by Professor Robert Jago, Module Convenor for Family law.

On 6th December 2022 the House of Lords published its review of the Children and Families Act 2014. Subtitled: A failure of implementation, the review considers a range of relevant issues including adoption, family justice, employment rights and building a better future for children and families. In the area of adoption, the report acknowledges that the 2014 Act made several important changes which were broadly aimed at speeding up the adoption process (by removing the potential wait for the ideal ethnic match) and for securing homes for all those children who needed them. At the time, the hope was that the adoption reforms would ‘help the 6,000 children who need loving homes to be adopted.’ The review notes, however, that although there was an early increase in adoptions after the legislation was implemented, this figure has steadily declined since 2015. The review also confirms that the time between entry into care and adoption has, in fact, increased rather than decreased.

One area of concern in the review is the question of race, ethnicity and adoption and it is acknowledged that, as well as being overrepresented in the population of children in care, it also generally takes longer for children from minority ethnic backgrounds to be adopted. During the review Nagalro, the professional association for Children’s Guardian’s, Family Court Advisors, and Independent Social Workers, presented written evidence to the Select Committee Inquiry calling for the reinstatement of s1(5) Adoption and Children Act 2002. Section 1(5) Adoption and Children Act 2002 states that:

In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin, and cultural and linguistic background.

It is therefore of interest to family lawyers to ask if the time has come for such a reinstatement?

Section 3 of the Children and Families Act 2014 repealed this section and therefore removed the statutory requirement to give due consideration to this range of factors when matching children with potential adopters. Nagalro limited their submission to consider the effect of the repeal of s1(5) and explained that, in their view, there was no evidence that this was either in the children’s interests or had in fact shortened waiting times. The submission also argues that the impact on Black children, in particular, has been disproportionate as they are already overrepresented in the Local Authority care system and when it comes to placement they are treated differently to their white counterparts because since the repeal of s1(5) white children are more likely to be placed with adoptive parents who do reflect

their cultural, religious and linguistic needs. Nagalro argue this is in fact a type of ‘indirect racism’. They also note that Article 20 of the United Nations Convention on the Rights of the Child states that when considering the future of a child who cannot be brought up by their own family:

‘…due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.’ 

Given the concerns raised by Nagalro it is important to consider why the statutory repeal was ever viewed as justified. In 2011 the government published an Action Plan for Adoption where it committed to tackling delay where the first action point was to:

‘Legislate to reduce the number of adoptions delayed in order to achieve a perfect or near ethnic match between adoptive parents and the adoptive child.’

Commenting on the subsequent repeal of s1(5) Hayes and Hayes (2014) argued that s1(5) had been used to ‘legitimise a race matching ideology’ which was held by many professionals involved in adoption. They noted that s1(5) could be interpreted in two particular ways. The first involved a ‘mild preference’ for ethnic matching and the second allowed for an ‘insistence upon the necessity of ethnic matching’ which they argue could be at the expense of the child’s welfare. Hayes and Hayes favoured what is referred to as the ‘tie breaker’ approach where all other things being equal the closest ethnic match would be preferred. They were particularly critical of what they see as a ‘race matching’ ideology that had emerged in the field of adoption preferring a ‘colour blind philosophy’. To them the ‘colour blind philosophy’ increases the pool of adopters and prioritises the child’s welfare as s1(2) Adoption and Children Act 2022 requires.  Hayes and Hayes note that the welfare checklist under s1(4) of the Act already considers a wide range of characteristics for the child and they conclude that ‘undue emphasis on race, culture, religion, and language has tended to permeate all aspects of the adoption process’ and the repeal ‘represents a challenge to orthodox social work thinking’.

On this basis it is perhaps unsurprising that Nagalro has called for s1(5) to be reinstated. In its review the House of Lords note that the repeal has had limited impact. Evidence was presented that suggested that social work practice had not necessarily followed legal change and despite the repeal:

‘There is no evidence available to support that this change has had any positive impact on the waiting times for black and minority ethnic children.’

The House of Lords review does not recommend a reinstatement of s1(5). It does however propose that the government create a task force which is dedicated to addressing ethnic and racial disparities in the adoption system. In response to the review the government declined to set up this task force arguing that work had already been undertaken by another task group which focusses on how more Black adopters can be recruited and more Black children matched and importantly to ‘rebuild trust and resource interracial adoption.’

Nagalro reports that the repeal of s1(5) was something of a sacrifice and ‘This sacrifice was considered to be in the children’s interests, as long as it reduced waiting times.’ Evidence to date suggests those waiting times have not been substantially reduced. Despite this there appear to be no plans to reinstate s1(5). Nagalro conclude that ‘we must afford Black children equality of treatment within the adoption process.’ It remains to be seen whether the House of Lords review and government response will see any meaningful change for Black children in care who continue to hope to be adopted into a happy home.