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 A
Rate
per 1000
Time B
Australia
3.3
1999
7.8
2013
England
4.5
1994
5.5
2009
Canada
4
1991
9.7
2007
US
8
1997
6
2007
Sweden
6
2000
6.6
2007
Norway
5.8
1994
8.2
2008
Belgium
7.9
2004
8.6
2008
Germany
9.5
1995
9.9
2005
Netherlands
8.4
2000
10
2009
Denmark
9.5
1993
10.2
2007
8
1994
12
2007
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
1. Restoration to
parents
UK
1. Restoration to
parents
US
1. Restoration to
parents
2. Long-term
2. Legal Guardianship 2. Adoption
guardianship to 18 Special Guardianship
to relative or kin
3. Adoption (open)
3. Adoption
3. Legal
Guardianship
4. Parental
responsibility to
the Minister
4. Residence Orders
4. Permanent
Placement with a
fit and willing
relative
5. Get rid of this box
5. Get rid of this box
5. Another planned
permanent living
arrangement.
Adoption by
relatives
Guardianship
Order
Open adoption
Concurrent
adoption
Fostering for
adoption
Preference for
adoption over kin
Subsidised
adoption
% adopted out
Australia
(NSW)
United Kingdom
United States
No
No
Yes




Decreasing
?
NSW


No

No
No
No
Yes, after parents
No
 Increasing
subsidies
 Significant to
states & individuals
Very low now
13%
20%
Australia
(NSW)
Supported
adoption
% of kinship
foster care
Subsidised
kinship care
% in foster care
Subsidised foster
care
Children leaving
care – ‘freed’ but
no adoption
?
United Kingdom
Increasing supports Greater for non-kin
– see C&FA 2014
adoptive carers
47%
11%
(56% NSW)
but increasing
SGOs yes, but
Minimal
often no orders so
no funding
Increasing
Increasing
√
United States
√
Currently numbers
Not yet of children awaiting
27% ↑subsidised
kin care/ informal
arrangements
Increasing funding
of guardianship
(often kin)
Decreasing
√
11% +
Selwyn & Masson 2014
No of children
Adoption
Special
Guardian/
ship Orders
Residence
Orders
37,335
5,912
5,771
Av age at ‘entry
to care’
14 months
Time to final
placement
Longest –
children aged 4
yrs on average
On average aged 5 yrs
3.2% over 12
years
5.6% over 5
year period
Disruption rate
When
2/3rds during
teen years
3 yrs 4 mths
4 yrs 5 mths
On average aged 6 yrs
25% over 6
year period
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 20th
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

http://www.community.nsw.gov.au/pathways/index.htm
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