John Hemming, former MP, has recently written a blog post on the Marilyn Stowe blog, called Adoption –  A look at the statistics, in which he says :

 In the year to 31 March 2014 5,050 children left care through adoption, and of these 2,400 were “non consensual” or “forced” adoptions. The published national statistics do not properly distinguish between children placed in respite care voluntarily and those taken into compulsory case under care orders or similar legal measures.

I have, however, had an analysis done which looks particularly at the outcomes for children in compulsory care aged under five. This age cut off has been used because as children get older fewer adoptive parents are available and hence there are fewer adoptions as an outcome.

In the year to 31 March 2014, 8,200 children aged under five left compulsory care. Meanwhile, 3700 left through adoption, and of these 1,800 were “non-consensual” or “forced” adoptions. Hence, of the more adoptable children leaving compulsory care, 45 per cent were adopted and of that 22 per cent were “non-consensual” or “forced”.

[…]

The assumption of the compulsory care system is that children are taken into care on a precautionary basis and reunited with their parents “if possible”. The proportion of under fives being reunited with their parents, however, is only 1,300 out of 8,200 (16 per cent) in the year to 31st March 2014.

It is clear from this that “non consensual” or “forced” adoptions are not exceptional within the context of the care system as a whole – contrary to international law and treaties.

It is, therefore, clear that the system as a whole is operating contrary to law and hence the threshold for a non-consensual adoption needs to be increased.

We thought it would be helpful to write this post to help clarify the basis and reliability of Mr Hemming’s blog post, so that people can engage in this important debate on a properly informed basis. Our aim is to increase transparency, not to grind any axe for or against adoption. We’re really sorry that this post is so long – we know that doesn’t help transparency much, but we’ve tried to break it down into sections for ease of reference, and given links to the source material where possible.

So, we started by asking John Hemming to provide the statistics that lie behind these assertions so we could better understand them, and he has done so via the comments on the blog. His spreadsheets can be found here and here.

So, do the statistics back up the proposition, that the system as a whole is operating contrary to the law?

Well, let’s first look at where the data come from. The “source” is cited as “SSDA903”, which refers to Children Looked After statistical returns, that Local Authorities are required to submit annually to the government.

The most recent SSDA903 statistics can be found here. They require quite a lot of close reading, but tell us the following…

How many children left care through adoption in 2014? And how many were non consensual?

The assertion by John Hemming that “In the year to 31 March 2014 5,050 children left care through adoption, and of these 2,400 were “non consensual” or “forced” adoptions.” appears to be borne out by the statistics – this is the figure for all children, not just under fives.

Of the 30,430 children ceasing to be categorised as “looked after” in the year to Mar 14 (the latest complete year) a total of 17% left because they were adopted (5,050). About equal numbers were “consent dispensed with” versus “unopposed” (the latter is likely to include parents who do not engage, give up or come to accept the outcome, as well those who volunteer their child for adoption).

But what other reasons were there for children leaving care?

More than a third (34% or 10,300) of those 30 thousand or so children ceased to be looked after because they had gone home to parents or relatives. Of the remainder ceasing to be “LAC”, 6% were said to be the subject of residence orders (possibly to family members – unclear), and 6% were made subject to Special Guardianship Orders to their former foster carers, 5% made the subject of SGO to someone else (again – possibly family?). The balance were generally exiting the system due to age (table LAD1 of the LA Tables file shows 10,310 – i.e. about a third of all children ceasing to be looked after – as “children aged 16 years and over who ceased to be looked after during the year”), although a sizeable number (almost 5000) were just marked as “some other reason”. See table D1 of the national tables for these figures.

To summarise, 8% of children were adopted non-consensually, whilst 1/3 went home or to family, 9% were adopted without opposition, and 17% were made the subject of SGOs or residence orders.

How many under fives left care in 2014?

SSDA903 states that 10,820 children under 5 left care in the year to Mar 14 (see for example table national figures D5). John Hemming however, states 8,200 children in this age bracket left “compulsory care”. Unless John Hemming means something slightly different by “compulsory care” than “looked after” as per SSDA903 (and we will ask him to clarify this) his figure appears to be inaccurate. We think the difference is too great to be accounted for by rounding.

How many under fives left care through adoption in 2014?

John Hemming goes on to assert that 3,700 of the 8,200 left through adoption, and of these 1,800 were “non-consensual” or “forced” adoptions. He says that this means that “of the more adoptable children leaving compulsory care, 45 per cent were adopted and of that 22 per cent were “non-consensual” or “forced”.”

There is no official table published which identifies both the reason for ceasing to be looked after and age group. John Hemming says he has “had an analysis done” in order to produce his spreadsheets, but we cannot see how that data can be extracted from the published data – there is no obvious way of telling which reason applied to each of the children under 5 who left care. We will ask John Hemming to explain how his data is extrapolated from SSDA903 or if it is combined with some other data that is not publicly available, and what assumptions were applied. At present however, the published data does not seem to bear out the proposition made. That is not to say that it is not right, but the figure we are able to directly compare to the source statistics (8,200 is NOT correct) so there may also be errors in the other statistics that are a breakdown of the 8,200.

It is worth noting however, that we think statistics would be likely to show that there is a higher proportion of younger children (say under five) who leave care through adoption (opposed or not) than of younger children. This is because, adoption is more likely to be practically achievable for younger children – both in terms of the availability of adopters, and in terms of the child’s ability to adapt to adoption. Whilst older children can be successfully adopted it is not controversial to state that the older a child is the harder it is likely to be to find adopters and make an adoption work. There are lots of factors at work here – the older a child is the more established are their memories and relationships with their biological family – and in some cases the more harm they may have suffered before removal, leaving them harder to care for. Whilst we therefore don’t think it would be surprising if the percentage of under fives leaving care through adoption were higher than the 17% figure for children of all ages, we can’t say whether the 45% figure given is accurate. We do think it would be surprising if there were a significantly higher proportion of under five adoptions being unopposed than for children of all ages. John Hemming’s figures suggest that a very high 78% of children over 5 who left care through adoption were adopted unopposed compared with an overall figure of 9%. We think this is a very surprising figure and it makes us wonder if something has gone wrong with the analysis – but again we would need to see the analysis to see if we are right about that. If it is right, it raises some really interesting questions. [Update 2 Sept – 78% IS a surprising figure because it’s not correct! That is our mistake. The figures in fact suggest 66% over over 5s were adopted unopposed compared with an overall figure of 48% of children leaving care for unopposed adoption (not 9%). See our Part 3 blog post]

Only 16% of under fives reunited with parents?

John Hemming goes on to say that the proportion of under fives reunited with parents is only 1,300 of 8,200 (16%). For comparison, the percentage for return to parents across all ages is 34%, so if right this would be disproportionately low. Again, we cannot see how Mr Hemming’s analyst has extracted those figures, and will ask for clarification. We cannot presently verify this assertion.

We think there might be some reasons why younger children might be less likely to go home to their parents than older children. Older children are not always viable candidates for adoption, so even if they have suffered or are at risk of suffering really serious harm the list of options that the court has to choose from is shorter. Some older children may not manage well in foster care – they often vote with their feet and the task then is to make them as safe as possible at home. Foster care or special guardianship may enable an older child to maintain links with family even where returning home is not safe. The biggest difference to remember when breaking down children into age groups is that under fives are more likely to be the younger siblings of harmed older children, and are more likely to be at risk of harm rather than having necessarily suffered any or as much harm as those older siblings. This makes for a different range of needs and options for babies and young children. Adoption is only lawful where it is the last resort –  where nothing else will do – but for older children it may not be an option at all, and so the figures for older children will always be different between age groups.

One further question  : If 45% are adopted and 16% go home, what happens to the other 39%? We wonder what percentage of younger children are placed with special guardians or under residence orders with relatives. Our guess would be that proportion might be higher than for older children.

Non consensual adoptions are not exceptional? Contrary to international law?

So, what of the final proposition, that :

It is clear from this that “non consensual” or “forced” adoptions are not exceptional within the context of the care system as a whole – contrary to international law and treaties.

It is, therefore, clear that the system as a whole is operating contrary to law and hence the threshold for a non-consensual adoption needs to be increased.

Well, as identified we really aren’t sure about all the statistics that this assertion is based on. But looking at what we do know we think it’s important to note that the statistics that Hemming relies on are largely NOT actually statistics about “the system as a whole” at all. They are a selective subset of statistics about a group of children with known differences in need and options. When you look at the published data for the system as a whole (which is what Hemming is drawing conclusions about) only 8% of children left care in 2014 through what he terms “forced adoption” (we prefer non consensual).

It is also important to remember that the figures we have been looking at don’t include all those children who are the subject of care proceedings but who are not removed pending long term decisions [amended 29 Aug 15, or who are in local authority care voluntarily under s20 Children Act 1989]. If those children were added into the pot the 8% figure would be likely to reduce. The figures we have been looking at also don’t include children who are the subject of child protection plans but not proceedings.

What does “exceptional” mean?

“Exceptional” is often taken to mean something that hardly ever happens. 8% is not something that hardly ever happens, although it is far lower than the figure that John Hemming proposes for under fives (45%). But the laws that prohibit adoption other than as a last resort do not impose a quota of (say) 2% of the total number of children in care as at 31 March the preceding year. That would produce arbitrary, unfair and unsafe results. The laws that prohibit adoption other than as a last resort are specific to the individual needs, rights and risks for each child, and each family – which must be weighed up and considered alongside all realistic options in each and every case. Decisions are not made on the basis of quotas or “adoption should almost never happen” – but on the basis of what is necessary to keep this child safe. If there is a way of doing so without resorting to adoption then adoption isn’t justified. If there isn’t then it is likely to be justified. Put another way – a family has the right to family life to be unimpeded EXCEPT when it is necessary to interfere with it (in this instance to keep a child safe).

An illustration of the confusion about what “exceptional” means can be found in another context in the case of R (Gudanaviciene & Others) v Director of Legal Aid Casework & Lord Chancellor [2014] EWCA Civ 1622, where the Court of Appeal were asked to rule on the definition of the Exceptional Legal Aid provisions of s10 Legal Aid Sentencing and Punishment of Offenders Act 2012, and the Master of the Rolls said this at pa 29 :

…The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.

Statistics might (do) show differences in approach as between different countries, and statistics for the European Court of Human Rights might show a higher or lower number of successful challenges to decisions made in England and Wales than elsewhere (we have not analysed this for this post but see here on the CPR blog for some general stats and helpful links to the Rights Info project), but one can only say whether or not the law is being breached by the courts in England and Wales by looking at individual cases, not statistics (see also Clare Fenton-Glynn’s Children’s Rights in Intercountry Adoption – A European Perspective, Published by the Organising Committee of the Commission on European Family Law (Intersentia), 2014, where the author considers the view that the European Court of HR has taken about the behaviour and approach of the UK and other member states to family law and adoption, and the wide margin of appreciation given (see Ch 6)).

Mr Hemming states that the threshold for non consensual adoption needs to be increased, but we are not sure what he means by this. The “threshold” for non-consensual adoption is necessity and this has been reiterated by the courts in this country repeatedly in recent years, including but not limited to the cases he cites in his article.

There is a perfectly proper public debate to be had about whether and why we seem in England and Wales to use adoption more often than some other jurisdictions (although it is not the Transparency Project’s role to offer a view about this per se). But we do not think that the statistics that Mr Hemming cites, even if shown to be accurate, support the arguments he is making.

One final thought – if it is right that many other countries use adoption far less than we do (as appears to be the case – see for example here : We are not alone – every European country permits adoption without parental consent on CPR blog, and here : Forced Adoption: We need to talk about this also on CPR blog) – don’t we need to compare our system with others before concluding that we have necessarily got it wrong? What if (for example) countries who do not practice any forced adoption leave a higher proportion of children in situations of dire risk or harm? Isn’t that comparison worthy of consideration? See, for example, Clare Fenton-Glynn in Children’s Rights in Intercountry Adoption, where on the topic of loss of parental rights she says (for example) :

…inflexible time limits may also result in a child staying in institutional or foster care longer than he or she needs to, delaying an adoptive placement to his or her detriment. For example, where a child has been sexually abused, family reunification will often be undesirable, and if this is the case the best solution may be to allow an adoption as soon as possible. Long delays may be extremely detrimental for a child… in Georgia parents must have been deprived of their parental rights for one year before the child can be adopted. In addition, an intercountry adoption can only be considered if after six months a domestic placement has not been found. As a result, by the time the child is placed in a permanent home, 18 months may have passed. If this time is spent in an institution, his or her physical and emotional health will most likely be damaged, and development severely delayed [pp 107-8].

John Hemming’s blog post also touches on adoption targets. We’ve started (but not finished) looking at that topic here and here, and aren’t going to tackle that in this post – it’s complicated. Hemming thinks that the financial incentives or penalties for the performance of local authorities in respect of adoption have a distorting effect on local authority behaviour in ways which explains these statistics he cites – in short Hemming thinks that younger children are an easier way for local authorities to achieve their financial goals. However, as previously stated, even leaving aside arguments about pro-adoption incentives, there are also good reasons why younger children are more likely in any event to be adopted, and most adoption incentives relate to children who are already subject to a plan for adoption – they don’t directly impact on decisions as to whether a child should be made subject to a plan for adoption in the first place. Even if Hemming’s statistics are accurate it would be impossible from the figures alone to see what was the cause of any difference in the proportion of children being adopted depending on age.

If we obtain any clarification about the matters we have raised above, we will publish them here, and will mark any edits transparently.

[Update, Sunday evening : John Hemming has responded to this post by placing some further information on his blog. We have not had time yet to consider this or respond to it, but will do so when able. You can read his response here.]

[Update : see Part 2 and Part 3]