How the Department for Education failed children adopted from overseas

Among the countless casualties of civil service paralysis as it has wrestled, and continues to wrestle, with the fallout of Brexit is any immediate prospect of a change in the racial discrimination of the current schools admissions policy. The Department for Education is responsible for a blunder that, for the past six years, has discriminated against children adopted from overseas. Worse, its current plan to remedy the situation has been kicked into the long grass.

Intercountry adoption accounted for around 40 per cent of all adoptions in the European Union between 2004 and 2014, but has always been far less common in the UK than in some other European countries, such as France, Spain and Italy—partly because it incurs much higher costs than domestic adoption, but also because historically some British adoption agencies and authorities discouraged it. Most internationally adopted children in the UK have come from China; between 2000-2009 many came too from Russia, India, Thailand, Ethiopia and Guatemala.

The process is regulated by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), ratified by 24 EU member states including the UK, which says that all such children should have the same rights as those in the receiving country. Yet this ambition is not being met.

In 2013 the Department for Education (DfE) introduced a change to the Schools Admissions Code that required local authorities and all other admissions bodies to give top priority of pupil places to children who had been adopted from state care. This recognised the vulnerability of such children and their need to be in the best available educational environment. It was a welcome change.

There was one problem. The priority, as well as entitlement to “pupil premium” funding for special support at school, applied only to children who had been in care within England and Wales. It excluded the hundreds of children throughout the two countries (Scotland and Northern Ireland have their own rules) who were adopted from overseas. Most of these were also in care institutions before adoption, often with few resources and rather basic provision.

It is recognised by adoption specialists and accepted by the DfE that the needs and vulnerabilities of children adopted internationally are not lesser than for those adopted domestically. Such children become British citizens once adopted in the UK. So why the exclusion?

The DfE has never given a coherent reason (I have been asking for years). But one thing is for sure: it was no oversight. When the admissions code was being drawn up in 2011-12, the charity Adoption UK and the Intercountry Adoption Centre wrote to Nick Gibb, Minister of State for Schools, to warn him that internationally adopted children were being overlooked in the arrangements. The department ignored such advice and excluded those children anyway. It offered the bizarre and cryptic justification that while some such children “will have difficult and challenging needs,” so “do many children who live with their birth families,” and that “a line had to be drawn.”

Even if you accept that a line had to be drawn, there seems no logic—and none has been adduced—to drawing it in a manner that divides the group of highly vulnerable British children adopted from institutions into two groups: those born in the UK and those born outside the UK, the vast majority of whom are children of colour. Beyond this statement, says Gill Haworth, who was head of the Intercountry Adoption Centre in Barnet at the time, “there was never any explanation for excluding this small group of very vulnerable children. We were left to draw our own conclusions as to why the line was drawn where it was.”

This decision appears to violate the 2010 Equality Act, which states that there must be no discrimination in schools admissions based on country of origin—discrimination that in this case is also de facto racial. The current admissions code also violates the Hague Convention. Tim Otty, a QC with extensive experience in public international and human rights law who has considered the legal status of the DfE’s code, has advised that “In my view, to treat the two classes differently would, in substance, be to discriminate against them on grounds of nationality or national origin, and so would breach the specific obligations to avoid such treatment owed by all public authorities under both the Equality Act 2010 and the Human Rights Act 1998.” Even leaving such statutory obligations aside, Otty adds, “it is also well established that it is irrational and unlawful in ordinary public law terms for a public authority to fail to treat like cases alike.”

The DfE doesn’t deny any of this. It chooses now instead to deny—despite documented evidence to the contrary—that it ever gave any consideration to the case of internationally adopted children in the first place. But what, then, has prompted the DfE now to concede it needs to move towards changing the Schools Admissions Code so as to include these children in its provisions? The DfE will not explain that either; the department did not respond to several requests for comment for this article. An earlier response I received from the department said that the intended change simply aligns the admissions policy with changes to the responsibilities of so-called “virtual” school heads, whose duties to promote the educational achievement of children cared for by the local authority and those adopted domestically were extended in 2017 to internationally adopted ones. In other words, the DfE seems to be saying here that it intends to change its discriminatory policy because it has already changed another one—in effect, no explanation at all.

All indications are that the department in fact knows—thanks largely to the intensive lobbying efforts of a small group of adopters, supported by a few MPs and parliamentary peers—that it has screwed up royally, and is seeking to amend the code behind the scenes before anyone makes too much fuss. Last June it stated an intention to “take forward changes” to the Schools Admissions Code (there was no mention of pupil premium)—but the process requires a consultation period and no timescale has been agreed. Previously, Gibb had said there would not be capacity for such things until after Brexit. Though the government has now allegedly “got Brexit done,” we should probably not hold our breath: a bill proposed by crossbencher Lord Triesman to implement the necessary changes in law is currently languishing in parliament.

Meanwhile, parents of internationally adopted children (like me) have been forced to find fees for private schooling, legal advice on admissions appeals, or private tuitional support, in order to ensure their children have the educational environment that priority placement and pupil premium could have provided.

Getting schooling right is challenging: a leaflet from the DfE itself, in partnership with Adoption UK, states that “looked-after children and previously looked-after children have a high level of need, stemming from their experiences prior to becoming a looked-after child. Many will have suffered trauma, neglect and abuse, the emotional impact of which may act as a barrier to their progress at school.” It adds that “Children who have been adopted from overseas are also likely to need additional support in schools”—support that its own chosen policy has denied.

According to Adoption UK, around 70 per cent of adoptive parents say their child's progress is hindered by their poor emotional state at school. In 2016, only 30 per cent of children adopted (or now cared for by other arrangements) from a care home reached their expected levels at Key Stage 2, compared to 54 per cent of other children. Adopted children are more than twice as likely to get “poorer” GCSE results. “The fit between the adopted child and the school setting is vital,” says Haworth. “The fact that priority admission is not available as of right has led to the inevitable uncertainty of a postcode lottery at times of significant transition of internationally adopted children.” Parents, she says, “should not have to expend time, energy and emotional resources in advocating for their child to be treated equally to his or her peers.”

Gibb, now Minister of State for Schools Standards, has written to schools and local authorities to ask them to voluntarily include internationally adopted children for priority admissions, which is within their discretionary powers. But most say they will refuse to do so unless legally compelled, and the result is now a confused chaos of varying practices—as Haworth says, a postcode lottery. The London Consortium of Local Authorities has advised all London local authorities and schools to disregard Gibb’s letter until the law is changed; in other words, in appearances at least, the consortium prefers the discriminatory policy. Why that should be so is not clear. Some local authorities cling to the spurious reason that it might be hard to verify that the children in question really were in care before adoption. In the vast majority of cases (and all of those from China), this is untrue.

Funding cuts might explain some of the reluctance (although the numbers of children concerned are tiny). But one south London borough I contacted betrayed another possible consideration. It expressed concern that other parents might consider giving internationally adopted children admissions parity with those adopted domestically to be “unfair.” Given that nearly all of those children are of colour, have LAs become nervous in the current political climate of being perceived to be giving preferential treatment to “them”?

Change to the admissions code will probably only happen when it is too late. Due largely to changes within China, intercountry adoption has drastically declined in the UK in the past ten years. Only 20 came from China in 2013-14, and comparable numbers from Russia and India; in 2015 there were only 58 overseas adoptions in total. So the majority of children adopted internationally into the UK will soon have finished their schooling. The Department for Education has let them down—and told them very clearly that they are second-class citizens.

 

This piece has been amended: the Intercountry Adoption Centre was previously referred to as the International Adoption Centre