When the government wants to ‘tip the balance’, should we be worried?

Children|May 16th 2016

In an interview with the Sunday Times yesterday the Prime Minister stated that in the Queen’s Speech on Wednesday the government will outline plans to pass new laws to encourage adoption, in a bid to improve the chances of children in social care in England. I haven’t read the interview (it’s behind the Great Paywall of Murdoch), but the report of it I read on the BBC got me a little concerned.

Now, before I go any further I will make my usual disclaimer when discussing public law children matters (i.e. care proceedings, in particular): I haven’t done any public law work myself since the 1990s, and I do not therefore consider myself to be an expert upon the subject. I do, however, follow general developments, including news, cases, and in practice and procedure, so hopefully I don’t speak from a position of complete ignorance.

The government’s pro-adoption campaign is not, of course, something new. For example, in May last year the Adoption Support Fund was launched, providing £19 million to help families settle in newly adopted children, and back in November David Cameron called for a faster adoption process. The proposed legislation to be set out in the Queen’s Speech is just to put into effect the law change that the government has outlined previously.

So what did the Prime Minister say in the interview? Well, as we already know, the government aims to encourage permanent adoption, even if it means children are not placed with relatives. David Cameron said that he was “unashamedly pro-adoption”, and he criticised courts and social workers for favouring “less stable placements” with distant relatives, rather than with adoption families. He went on:

“We will legislate to tip the balance in favour of permanent adoption where that is the right thing for the child – even when that means overriding family ties … For too long, whether through misguided notions of what is right or sensitivities about not wanting to cause offence, we have let the most vulnerable in our country down. That needs to change.”

Now, I have always been a little worried about favouring a particular outcome for children, but those words “tip the balance” give me particular cause for concern. I realise that they are qualified by the words “where that is the right thing for the child” (which may, of course, render the whole pro-adoption exercise meaningless), but the search for the best outcome is always a balancing exercise between competing possibilities – is it right to artificially influence that exercise, simply on the basis that a particular outcome is considered, on average, to be better than other outcomes? Each case is unique, and should obviously be considered on its own facts. If that means that adoption is ordered in more cases, then that is simply because the courts thought that that was the best thing to do in those cases, not because the courts were pro-adoption.

Should the law ever be weighted in favour of a particular outcome for children? After all, we would all be outraged if it stated that in private law disputes the courts should favour the mother over the father. The fact that the courts more often than not do favour the mother is not because of any bias but because that is what the court felt was the best thing to do in those cases. No particular outcome should be favoured until all reasonable outcomes have been considered, having regard to all the circumstances of the case, including any particular circumstances that the law specifically requires the court to consider, as in the welfare checklist in section 1(3) of the Children Act.

To be honest, I doubt whether any change in the law will make anything more than a cosmetic difference, just as happened with the shared parenting presumption, which was designed to placate the fathers’ rights brigade. Still, it is a worry when the government ‘interferes’ in this way. The scales of a delicate balancing exercise should be tipped by what is best for that particular child, not by government decree.

Photo by Number 10 via Flickr

Author: Stowe Family Law

Comment(1)

  1. When the government wants to ‘tip the balance’, should we be worried? — Marilyn Stowe Blog | misskatiek2012's Blog says:

    […] via When the government wants to ‘tip the balance’, should we be worried? — Marilyn Stowe Blog […]

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