Guidance notes to the Adoption and Children Act 2002

Jessica Redford, Barrister

Introduction

The Act overhauls the outdated 1976 Adoption Act and modernises the legal framework for domestic and inter-country adoption. The Act includes provisions to:

- make the child’s welfare the paramount consideration in all decisions relating to adoption;
- place a clear duty on local authorities to provide an adoption support service and a right for adoptive families to have an assessment of their needs for such support;
- establish an independent review mechanism in relation to qualifying determinations made by an adoption agency;
- replace freeing orders with placement orders;
- increase the pool of adopters by allowing single people, married or unmarried couples and civil partners or partners who have not entered into a civil partnership to adopt;
- link children and approved adopters through an Adoption and Children Act Register;
- amend the Children Act 1989 to introduce a special guardianship order, intended to provide security and permanence for children for whom adoption is not appropriate;
- strengthen the safeguards for adoption by improving legal controls on intercountry adoption, arranging adoptions and advertising children for adoption.

The child’s welfare

The Act places the needs and welfare of the child at the centre of the adoption process. The welfare of the child is the paramount consideration for a court or adoption agency in all decisions relating to adoption (section 1(2)), including whether to dispense with a parent’s consent. It provides a welfare checklist that must be applied by a court or adoption agency (section 1(4)).

Placement for Adoption/Placement Orders

Under s18 adoption agencies (including local authorities and registered voluntary adoption agencies) may only place a child for adoption if they are authorised to do so by having the consent of each parent/guardian (s19) or on the making of a placement order (PO). The exception to this concerns babies less than 6 weeks of age where the Act makes special provisions. Section 19 does not apply where care proceedings are in progress or a care order has been made after the consent was given.

In the case of consent to placement under s19, the consent will have to be witnessed by a Children and Family Court Advisory and Support Service (CAFCASS) officer under r28 of the Family Procedure (Adoption) Rules 2005 (SI 2005/2795). The agency should ensure that the parent understands the implications of adoption and consenting to placement (AAR reg 14) and should confirm to the CAFCASS officer that they have done so (AAR reg 20). Legal advice and assistance may be provided with regard to the parent or guardian’s consent under ‘legal help’.

A local authority is required to apply for a PO if it is not authorised to place a child whom it is looking after or in respect of whom it has applied for a care order, and it considers that the child should be placed for adoption (s22). In practise this will mean that concurrent placement and care proceedings will be more common.

In contrast to freeing orders, there is no requirement in respect of placement orders for the court to be satisfied as to the probability of placement. A PO authorises a local authority to place a child for adoption with any prospective adopters. The court can only make the order if the child is subject to a care order, the threshold criteria are met or the child has no parent or guardian (s21).

The court can only make a PO if the parents consent or the court can dispense with their consent. The court can only dispense with consent if the parent/guardian cannot be found, is incapable of giving consent or the welfare of the child requires that the consent be dispensed with (s52).

Once consent to placement for adoption has been given or a PO made, the parents then share parental responsibility with the agency and once the child is placed for adoption, with the prospective adopters. The agencies may and are likely in practice to restrict the parental responsibility of the parents (s25). The duty to consult parents under s23 Children Act 1989 (or s61 for voluntary agencies) no longer applies (AAR, reg 45). Any existing provision for contact under the Children Act 1989 ceases to have effect (s26) and the agency is no longer required to promote contact with the parents (AAR, reg 45). The parents’ right to remove the child from the placement is subject to the provisions under ss30-34 of the Act.

The parent will not be able to oppose the making of an adoption order unless the court gives leave. Leave will only be given if there has been a change of circumstances since the consent to placement was given or the placement order was made.

As stated above any existing provision for contact under the CA 1989 ceases to have effect once a child is authorised to be placed for adoption. However the court will have to consider contact at the time of making both a PO and an adoption order (ss27 (4) and s46 (6)). Under s26, while a child is authorised to be placed for adoption (or has been placed when under 6 weeks old) the court may make a contact order on application by the child, the agency, a parent, guardian or relative as well as others with an interest, and may also make an order of its own initiative when making a placement order.

The court may revoke a placement order on the application of (i) the child (ii) the local authority authorised to place the child for adoption or (iii) any person where the court has given leave to apply and the child is not placed for adoption by the authority. The court cannot grant leave unless satisfied that there has been a change in circumstances since the order was made.

Special guardianship orders

Special guardianship orders are intended to provide another option for legal permanence for children who cannot grow up with their birth families (s115 inserts s14A-F into the Children Act 1989).

There are certain situations where a special guardianship order may be appropriate, for example:

- older children in long term care who may wish to retain some legal ties with their birth family

- prospective carers who may wish to offer a child a permanent family but have religious/cultural difficulties with adoption

- where members of the extended family may not want to adopt the child, but do need more security and clarity about day to day decision making.

The special guardian will have parental responsibility for the child and will be entitled to exercise it to the exclusion of any other person with parental responsibility (save where the law requires the consent of more than one person with parental responsibility). The parents will retain parental responsibility, although their ability to exercise it is limited. They retain their rights to consent or not to the child’s adoption or placement for adoption and can apply for contact. Written consent of every person who has parental responsibility or the leave of the court must be given:

- for the child to be known by a different surname;

- to remove the child from the UK for longer than 3 months.

Section 14A (5) sets out who is entitled to apply for an order, namely:

- any guardian of the child;

- a local authority foster carer with whom the child has lived for one year immediately proceeding the application;

- anyone who holds a residence order with respect to the child or who has the consent of all those in whose favour a residence order is in force;

- anyone with whom the child has lived for three years (beginning not more than 5 years before, or ending more than 3 months before the application is made);

- where the child is in the care of the local authority, any person who has the consent of the local authority;

- anyone who has the consent of all those with parental responsibility for the child;

- any person, including the child, who has the leave of the court to apply.

All applicants must give their local authority 3 months notice in writing of their intention to apply for an order (if the child is being looked after by a local authority then the notice must be given to that local authority). The court cannot make an order without having received a report. The court can decide to make a contact order at the same time as the special guardianship order.

A special guardianship order can be varied or discharged (s14D (1)) on the application of:

- the special guardian;

- any parent/guardian of the child;

- any individual in whose favour a residence order was in force before the special guardianship order was made;

- any individual who has, or immediately before the making of the special guardianship order had, parental responsibility for the child ;

- the child;

- the local authority who had a care order in respect of the child before the special guardianship order was made.

The following must obtain leave of the court before making an application to vary or discharge the special guardianship order:

- the child;

- any parent/guardian of the child;

- any step parent who has parental responsibility

- any individual who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for the child.

The court may only grant leave if satisfied that there has been a significant change of circumstances since the making of the special guardianship order.

Local Authorities are required to make provision for special guardianship support services including counselling, advice and financial support.

***

Please feel free to telephone Chambers and speak to our Family members who will be happy to assist with any queries.


Jessica Redford
3 Dr Johnson’s Buildings