Risk, not past guilt, should guide adoption procedures

Civitas, 1 December 2010

Indiscriminate blanket bans on looking after children have once again come under fire. A new report warns that the automatic bars against sex offenders adopting children could breach ECHR rights. Whilst the scheme purports to make children safer, it in fact stifles the paramountcy of children’s interests and panders to a blind aura of ‘moral panic’ that clouds such debates, writes Carolina Bracken.

The report, by Helen Reece of the LSE, argues that the current approach focuses disproportionately on past wrongdoing, rather than assessing the significance of a criminal history in terms of future risk. ‘Risk, not guilt’, Reece rightly contends, ‘is the basis for placing sex offenders into the ‘reduced-rights zone”, and yet this is precisely what the system fails to achieve. Indeed, the most dangerous offenders are those who have not yet been caught. Having committed an offence in the past is manifestly a matter of ‘historical fact’ and should be treated as such. Only 20-25% of sex offenders reoffend, in comparison to an embarrassingly high proportion of other offenders, and rates of child sex murders have remained remarkably stable over the past four decades. Furthermore, the blanket ban obliterates any meaningful application of the principle that once an offender has served their sentence they should be able to ‘re-enter society on equal terms’.

There is a deceptive contradiction at the heart of this ban, as there is no absolute prohibition on children living with adults who have committed sexual offences against a child; relatives and pre-existing foster carers are exempt. In the case of ex p B, two young children were living with their grandparents under a care order as their parents were unable to mind them. Although some 36 years earlier their grandfather had been convicted of unlawful sexual intercourse with a 15 year old girl, the care authorities were satisfied that he posed no risk to the children. Nonetheless, he was not allowed to foster them. The only issue in contention was how those living arrangements would be ‘legally conceptualised’. If it is safe for a child to live permanently with an ex-offender, it is illogical to bar what is, crudely speaking, a legal formality.

This is certainly not an argument that all sex offenders should be able to adopt children. In Re P, the House of Lords found that discrimination in cases of social policy must have a rational basis. Yet whilst the state can legitimately draw ‘bright lines’ to guide the administration of social legislation, Lord Hoffman dismissed as irrational the proposition that ‘a reasonable generalisation can be turned into an irrebuttable presumption for individual cases’. Nevertheless, this ‘fallacy’ still permeates much current practice. Indeed, the publication of the new report comes just weeks after the RCN successfully challenged the legality of the automatic element of the ISA’s vetting and baring scheme, which had resulted in experienced nurses being placed on the Children’s and Adult’s Barred Lists after accepting a police caution for very minor offences.

In June, Home Secretary, Theresa May, pledged to ‘scale back’ the ISA regulations to ‘common sense’ levels, to mitigate their ‘draconian’ implications and the Civitas report, Licensed to Hug, has called for dismantling the system of automated vetting altogether. However, what is required is not simply a new procedure in this area, but an ‘enlightened’ approach to all such schemes. Re P concerned not whether the cohabiting couple would adopt, but whether they would be eligible to adopt. Adults who wish to engage in certain behaviour or assume a particular role should justifiably be subject to rigorous scrutiny. Suitability should be decided at this stage, not previously and automatically dismissed on groundless assumptions. Any system which purports to act in the interests of the child cannot allow those interests to be smothered by a myopic, overriding ban without defeating its own purpose. It is essential that robust protection replaces the current prevailing presumption that everyone is a potential risk.