Evidence to the House of Lords Select Committee on the Children and Families Act 2014

Joint evidence submitted by Legal Action for Women (LAW), which co-ordinates the Support Not Separation Coalition, and the Disabled Mothers’ Rights Campaign (DMRC).

LAW (founded in 1982) co-ordinates Support Not Separation, a coalition whose members are committed to ending the unjust and arbitrary separation of children from mothers/families. We are in contact with hundreds of mothers across England and Wales; we also work with the Scottish Kinship Care Alliance. We run monthly collective self-help meetings where mothers share their experiences. We hold a monthly protest outside the central family court in London, demanding an end to secret hearings, recognition of the vital bond between mother and child, financial support for mothers and other primary caregivers, and an end to profiteering by a growing privatised child removal industry.

Disabled Mothers’ Rights Campaign brings disabled mothers together to defend our right to have and to keep our children. We campaign to stop the cruelty and discrimination we face from council social services and the family courts which use mothers’ requests for support as an excuse to label us “unfit” and take our children from us. DMRC is part of the SNS coalition.

Our joint evidence is based on the experiences of mothers and children we are working with.

  1. To what extent has the Act improved the situation for the most vulnerable children, young people and families in England? 

The situation for the most vulnerable children, young people and families has considerably worsened since the introduction of the Act:

  1. There are now 4.3 million children living in poverty; that is expected to rise significantly given recent and ongoing substantial increases in the cost of living. Estimates suggest that 10,000 more children will be taken into care possibly rising to 100,000 by 2025. Councils are abusing their powers to remove children, especially from low-income single mothers and mothers who report domestic violence; children of colour and/or disabled children are also disproportionately removed. Poverty is conflated with neglect – children in poor neighbourhoods are 10 times more likely to be investigated without any identifiable rise in actual harm. The vital bond between mother and child is being downgraded. Widespread privatisation of fostering, adoption and children’s homes has led to obscene levels of profiteering by private companies, with CareTech alone being paid £430 million last year by local authorities, and a recent report that £1m was spent to keep one child in care. This profit-making industry depends on a ready “supply” of children to maintain its profits. It has nothing to do with “the best interest of the child” and everything to do with how much money can be made from exploiting the misery of children, mothers and families.

    2. There are now more children in care than ever before, and authorities with higher adoption rates also have more children in “care”. Once in “care” they are often separated from siblings and frequently moved up to five times (sometimes as many as 12) to different foster carers/children’s homes. The damage caused children by the “corporate parent” is well documented: care leavers have worse physical and mental health, lower educational attainment, higher rates of unemployment, less stability of housing than their contemporaries once they leave “care”, and are much more likely to be criminalised — 25% of all adult prisoners grew up in “care”. More babies are being taken from their mothers at birth: currently one in 200 of whom 90% are never returned to their mothers, an increase of 136%. More teenagers are being taken and placed in unregulated homes from the age of 16 and are fundamentally abandoned by the system once they turn 18, when foster carers stop getting any payment for them. Last year, at least 8,373 children were placed in semi-independent unregulated accommodation and the scandals of neglect and inhumane treatment at privately run children’s homes have massively increased. In 2020, 12,430 (11%) looked after children were missing – and there were 81,090 missing incidents. 56% were from semi-independent accommodation, children’s homes or secure units. 25% from foster care and 14% living independently.

3. Too often when mothers and families ask Children’s Services for support they are entitled to either under S17 of the Children Act 1989 or the Care Act 2014 they get no help; they are instead blamed and pushed into “child protection”, increasing the likelihood of child removal, again feeding the growth of privatised companies contracted by the “corporate parent”.  

  • Is the Act enabling faster, more secure and stable adoptions which are in the best interests of the child? 

  • The emphasis on speeding up adoptions has gone hand in hand with devaluing and dismissing the bond between mother and child, creating lifelong trauma among children and mothers. This is against the best interest of the child. Our most recent research (published June 2021) found that of 219 mothers, 10% had children who were adopted.   The UK has the highest level of forced adoption of any EU country, with over 90% of adoptions taking place without parental consent. We refer the Select Committee to the British Association of Social Workers’ Adoption Inquiry Report (published in 2018): it was critical of policy makers who “tended to promote adoption as risk free in a ‘happy ever after’ narrative” with often devastating consequences, including breaching the human rights of birth mothers who grew up in care or have mental health or learning difficulties.

  • Adoptions often amount to social engineering as children are taken from working-class families and given to middle-class families with the excuse that they will provide a “better way of life” (this is described by a grandmother here). Evidence of the deep trauma inflicted on children by separation, of growing up feeling you “don’t fit in”, the longing to be reunited with birth parents, especially mothers, the children who are returned to institutional “care” when adoptions “fail” are ignored or dismissed. Repeal of the requirement to consider ethnicity, religion, race, culture and language when placing a child for adoption has led to even less respect for children’s backgrounds and often cuts them off even more from their birth families. Placing children of colour in white homes takes no account of the racism or other prejudices which the child/ren may face in a completely different birth family. In one case, a Black immigrant victim of trafficking lost her two children to adoption (by different families of different races) when, having escaped her traffickers, she approached social services for help. She says: “I requested help so my daughter can integrate. I did not want to make mistakes and did not know how the school system works…they ripped us apart.” Professionals justified the adoptions by claiming that as a victim she was “unable to parent”. She speaks about her pain here.  Another mother was further traumatised when she found out that her daughter was returned to foster care after the adoption broke down because she “missed her mum”.

6. Promoting adoptions has led to greater numbers of children in “care”, not less. Local authorities who remove more children also have higher levels of adoption. As a result, Local Authorities prioritise spending on removing children rather than supporting families in order to keep children in the family. Since 2015 spending on removing children has increased by 30% to £9bn whilst spending on keeping families together has been cut by 50% to £2.2bn. Once children are adopted the financial responsibility of local authorities ends and this provides a financial motive for faster adoptions, when the only motive should be the best interests of the child.

7. Emphasising the speed of adoptions seriously disadvantages mothers/birth families from making changes which professionals and/or the court decide are necessary. For example, mothers are often told they need to do some therapy but find waiting lists on the NHS are so long that they cannot access therapy within the court’s timescales. When babies are taken at birth it is almost inevitable that they will be adopted, giving mothers no chance to “prove” they can take care of them or being set up to fail in hostile mother and baby units.

8. The introduction of “fostering to adopt” placements makes it harder to challenge an adoption because courts consider that by the time of a placement or adoption order, the child has been “settled” with their prospective family and should not be moved. It also means the court gives more weight to the views of the prospective adopter, since they have been caring for the child, for example if they refuse any post-adoption contact for the birth family. In opposing this, a judge in the reported case (T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983) allowed an appeal against an adoption order saying:

“There would be a very real risk that the care proceedings would become, in effect, a dispute between the prospective adopters and birth family and the court would be diverted into an illegitimate enquiry as to which was best.”   

9. Despite post-adoption contact technically being allowed under this legislation, the first case did not come to the court of appeal until 2019 when the judge relied on earlier court judgements to refuse contact. We are not aware of any subsequent published cases granting post-adoption contact.  

10. There are few statistics on the level of breakdown of adoptions despite the introduction of personal budgets for adoptive parents. We know of adoptive families who struggled when children became teenagers, asked for support but were treated in the same way as birth families – ie, their parenting was blamed for the child’s behaviour. In some cases adoptive families “return” the children to care as if they were packages being returned to the depot. One mother (an immigrant woman of colour) whose three children were taken and separated from each other, including one placed for adoption but returned to foster care when the placement broke down, describes the heartbreak of adoption:

“I feel as if my family was chosen to be studied as animals to see how each react in different settings, this is known to be an abuse to animals, therefore to children is catastrophic to their mental health because it’s clear the great attachment they have with their mother and between each other as siblings.”

11. The recently announced government funding of £160m to adopters has not been matched with financial support for birth mothers to keep their children with them. Why not when adoption is supposed to be a last resort?

C Have the reforms to the family justice system succeeded in making the system faster, simpler and less adversarial? 

12. The family court system has become more rather than less adversarial. For details of mothers’ experience we refer the Committee to our dossier, Suffer the Little Children and their Mothers, published in January 2017 and updated with new research in June 2021.   

13. The government’s own inquiry, Assessing the Risk of Harm to Children and Parents in Private Law Children Cases, published in June 2020, spelled out how CAFCASS, social workers, psychiatrists, lawyers and judges ignore, downplay, disbelieve and/or dismiss mothers who report domestic abuse from the men pursuing them through the court, how they coerce children to see fathers they are terrified of or want nothing to do with, and how they take children away from mothers who report domestic violence rather than protecting both children, mothers and the relationship between them. They identify that “sexism, racism and class prejudice make it even harder to report [violence]”.

14. The most harmful aspect of this legislation was the introduction of the “presumption of contact”, which is now the prevailing ethos among social workers, CAFCASS officers, psychologists and other professionals, as well as judges.  The Harm Report found that the presumption of contact pervades the whole court process and is used by abusive fathers to insist on unsupervised access and even residence of their children. It encourages violent fathers to make allegations of “parental alienation”, the discredited junk science of US paedophile advocate Richard Gardner, to discredit mothers trying to protect their children, with deeply harmful consequences – children have been put in danger and even lost their lives as result of being forced them to see or live with the abusive father. So have their mothers.

The Harm Report states:

“… the legal presumption that it is in children’s best interest to have contact with both parents (introduced into law in 2014) has led to a ‘pro contact culture’ reflected in case law and promoted by all professionals … [which] results in a pattern of minimisation and disbelief of allegations of domestic abuse and child sexual abuse.”

One mother said:

“[His violence] is viewed as nothing to do with contact at all. I’ve never been allowed to speak about it. The court don’t want to know about his conduct, his behaviour, when I’ve been there it’s all about his rights to see the children, have contact, and when I said I’d got concerns about him emotionally abusing them, they wouldn’t hear of it … All they wanted to know is when he could see them.”

The Harm Report is clear that the legal presumption that contact with both parents is in a child’s best interest “should not remain in its present form”. Despite this unequivocal recommendation, nothing has been done to implement it. Instead, another review was called to consider the matter, but has so far made no public report of its activities. This delay is unacceptable and is costing the lives of children and mothers.

15. The new rules that only permit the use of expert evidence in proceedings “when it is necessary for a just outcome” are interpreted to allow experts in the junk science of “parental alienation” while refusing to allow other experts, for example in domestic abuse, to give evidence. Medical experts who are court approved are not necessarily specialist in particular conditions, for example autism, so a mother needing to challenge their medical evidence is at a disadvantage if she cannot bring her own specialist to court. Unlike in criminal court, vital medical witnesses cannot be forced to attend court and may be reluctant to challenge those who are court appointed. While mothers are prevented from bringing their own expert witnesses, social workers and CAFCASS officers are treated as experts by the court even though they may not be qualified to comment on particular issues, for example breastfeeding or co-sleeping.

D. Has the Act achieved its goal of improving provision for children with special educational and disability needs and disabilities? 

16. The commissioning and planning of EHC services for children, young people and families is now run jointly by health services and local authorities. So disabled children who may not have a diagnosis but clearly need support are wrongly referred to social services. Specialist medical evidence is rejected in favour of a doctor picked by the local authority. Disabilities go unrecognised and families are placed on “child protection” where behaviour is blamed on the mother, which stops the child accessing both medical and educational support.

17. The Act replaced education “statements” for disabled children with Education, Health and Care Plans (EHCPs) which are supposed to ensure that the support councils provide goes further than educational needs. In reality, mothers and other carers have to fight to get provision via EHCPs, which are vital to put disabled children on a par with their peers. Supportive funding is down by half to £2.2 bn (see above), so “child protection” funding, ie mostly child removal, shapes councils’ response. Mothers report that social workers told them that the threat of “child protection” would be lifted if they stopped asking for a EHCP! Since 2014, it is estimated that local authorities have spent around £200m opposing appeals at tribunal againstrefusal of EHCP provision. Families win 95% of appeals, but the process is costly and distressing, leading many to give up their rights and struggle with inaccessible or no education. Children in the poorest areas of the country are more disadvantaged as even less funds are made available for EHCPs and mothers and carers of disabled children are refused personal budgets for EHC needs, so they cannot access vital services.

Disabled mothers with a disabled child face even more discrimination as asking for an EHCP often triggers suspicion about the mother’s capability to manage a child at home and can result in her child being taken away.

18. Local authorities deliberately do not state clearly what children and families are entitled to. Websites are also hard to navigate, especially for disabled parents and those with learning difficulties. Provision varies depending on local funding. One mother told us: “I have battled to get a local offer for EHCP from my Council but was told to look at the website which was difficult to navigate and no offer was found.”

19. Local authorities legally must involve families and children in discussions and decisions relating to their care and education; and provide impartial advice, support and mediation services. But in our experience, when families ask for these services they are told there are none and that they have to pay for equipment and support themselves. 

For more information please contact:

Anne Neale, Legal Action for Women, co-ordinators of Support Not Separation sns@legalactionforwomen.net

Tracey Norton, Disabled Mothers’ Campaign mumsrights@winvisible.org

Crossroads Women’s Centre,
25 Wolsey Mews, London NW5 2DX

25 April 2022