Adoption notes, including Adoption Act 2002, difference between special guardianship and adoption, ECHR principles, welfare principle, no delay principle, procedure, placement orders, post adoption contract, and an outline at the end, from the family law elective module at City university
ADOPTION
Adoption affects relationship between a parent and a child it is a way of establishing parenthood
Early adoption: Secrecy and Non-regulation
-Before mothers not want a child or child born out of wedlock, left on rich people’s homes or streets
-Adoption of Children Act 1926 - adoption first formally introduced in our legal system
-Adoption of Children (Regulation) Act 1939 –adoption agencies allowed to make arrangements
The modern notion of adoption
Re P: Severs legal relationship with birth family; irrevocable, new legal relationship adoptive parents
Effects of adoption order – made by court, if anyone has PR will be extinguished e.g. with birth
parents, so cuts all ties with family except siblings adopted together so still treated as siblings
Extinguishes PR of birth parents/ any other person & extinguishes parental status of birth
parents
Extinguishes legal bonds with wider birth family + legal transfer of child to adoptive family
Complete legal transfer of the child to the adoptive family
ADOPTION AND CHILDREN ACT 2002 (current legislation)
Replaces Adoption Act 1976 –before only married couples only seen as adopters
Principles:
Best for children to be brought up where possible by the birth family (adoption order only made
if no lessor order protects welfare of child, so make a s.8 order or guardianship first, a last resort)
Children’s wishes + feelings to be taken into account (older child, if strong attachment no order)
Children’s ethnic origin, cultural background, religion and language to be promoted (but too
much matching it will take longer time to adopt, older be harder to adopt + detrimental to child)
s.1(5) ACA 2002
“In placing the child for adoption, adoption agency must give due consideration to the child’s
religious persuasion, racial origin and cultural and linguistic background.”
– repealed by s. 3 Children and Families Act 2014
MAIN CHANGES – by Adoption and Children Act 2002 (into force in 2005)
Child’s welfare – ‘paramount ‘(not ‘first’ as under 1976 Act) consideration –trumps parents’ rights –
key is whatever child’s interest and benefit is, that is what will matter, similar to s.1 of CA 1989
-Extended eligibility to adopt: Single; civil partners; unmarried couples wider pool of adopters
-Established an Adoption and Children Act Register: matches prospective adopters and children
-Established an Independent Reviewing Mechanism: prospective adopters been turned down
Best for children be raised by birth families, a new option introduced in 1989special guardianship
Children Act 1989, S.14 introduced SPECIAL GUARDIANSHIP (special guardianship orders)
-Less than adoption, more than a s.8 (‘residence’) order as birth parents remain legal parents
-S.8 easily be modified, special guardianship more permanent institution until becomes 18
-Only when the child is a minor (contrasts to guardianship where it is when the parents dies)
-Birth parents can apply for discharge if show substantial change in circumstances (revocable)
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,Comparison with special guardianship/adoption
SPECIAL GUARDIANSHIP ADOPTION
STATUS of child Cared by SG, still child of birth Child of adopter
PR SG gets PR + birth parents retain Vests in adopters
RESTRICTIONS on PR SG need consent from birth None
parents to remove child from UK
for >3months + change surname
DURATION of order SG cease when age becomes 18, Permanent
unless revoked earlier by court
REVOCATION/ Birth parents apply for discharge Irrevocable (except for serious
discharge if big change in circumstances procedural impropriety)
MAINTENANCE – child Birth still obliged for maintenance Extinguishes obligations of birth
INTESTACY (no will) No right to inherit from SG Inherits on adopter’s intestacy
New provisions for step-parents to acquire PR s. 4A(1) CA 1989, not affect biological parents PR All
of have to agree, or by court order – if 3 parents with PR all have to agree to child being adopted
-By agreement with all other parents with PR OR by court order
ADOPTION AGENCIES
Local authority OR Registered adoption society
Duty to ensure child is not placed with any random strangers
Responsibilities:
Select potential adopters; match adopters and children; place children for adoption
Adoption agencies are ‘Public authorities’ for purposes of HRA 1998 – Must ensure:
-Adoption in best interests of the child
-No breach of Art. 8 ECHR right to respect for family life of mutual enjoyment by parent + child
ECHR PRINCIPLES
Adoption needs to take place in best interests of child – focus is really on child, in many cases the
birth parents do not want to give out their parental rights but child should be free from neglect or
abuse, so incompatible needs conflicts in Art.8 ECHR- child needs to be removed with good causes
Johansen v Norway
Child placed in foster home, with view of adoption, mother denied contact which removal was
necessary as mother suffered from mental health issues held far-reaching measures inconsistent
with reuniting mother + child, to remove contact, need exceptional circumstances and show removal
in best interests of child to remove contact is far too intrusive, breached Art.8 ECHR
Söderback v Sweden
Child was adopted by birth mother and her husband, without biological father’s consent who
claimed court’s decision to allow adoption breached Art.8 held there was a close bond with step-
father, little contact with birth father, so no violation, interests of child prevailed
Keegan v Ireland
Child placed for adoption before child’s birth without father’s knowledge or consent, they were in a
committed relationship and engagement broke down held should have been consulted as in a
committed relationship, so breach of his family life
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, Principles applied by courts and adoption agencies
WELFARE PRINCIPLE – s.1(2) ACA 2002
Paramount consideration must be child’s welfare, throughout his life (consistent with European case
law) – so legitimate interests of parents who are not particularly blameworthy can be sacrificed e.g.
not abuser but parent is in relationship with someone who is violent, so child’s interest is paramount
WELFARE CHECKLIST –s.1(4) ACA 2002: Courts + adoption agencies must regard to list of factors
(a) Child’s ascertainable wishes + feelings regarding the decision (if child is a baby cannot get any
views, but if child is 3-4 yes is possible, for younger children see how well child is integrated into
family, if child has strong objections unlikely court will order adoption)
(b) Child’s needs (educational, emotional needs, adopters need accommodation + resources)
(c) Effect on child of ceasing to be a member of the original family and become an adopted person
(d) Child’s characteristics (child’s gender, ethical background etc, adoption family should share
some characteristics, also age so there is no huge age gap with the child e.g. couple in 50s cannot
look after a baby but can for a 16 year old, so parents should not be a grandparent type of figure)
(e) Any harm the child has suffered/ is at risk of suffering
(f) Child’s relationship with relatives (blood relatives would be considered before strangers)
(i) Likelihood of any such relationship continuing, value for child
(ii) Ability and willingness of any relative to provide the child with a secure environment
(iii) Wishes and feelings of child’s relatives
Adoption a last resort, to provide a secure environment, if there are relatives who can provide a
home would be first considered before adoption – if father does not have PR then his consent for
adoption is not required. But the father can say they want to look after the child, father must be
consulted, if child not the product of a one night stand authorities needs to make reasonable
enquiries (Keegan- stable relationship= be consulted); blood ties are important, legal parent can be
someone who does not have blood ties, but bond between child + genetic parent is important
NO DELAY PRINCIPLE – s.1 (3) ACA 2002
ACA 2002 requires courts/ adoption agencies to solve adoption cases without delay
“The court or adoption agency must at all time bear in mind, any delay in coming to the decision is
likely to prejudice the child’s welfare.” so child must not be left in a grey area where are no longer
with original family and are in a stable home, and child be able to integrate into family
DUTY TO CONSIDER OTHER POWERS – s.1(6) ACA 2002 so s.8 or special guardian before adoption
Court must not make an order unless doing so would be better for the child than not doing it
An adoption order should not be madeif a special guardianship sufficiently protects child’s welfare
Court needs to consider if the issue can be better addressed in some other way so it does not
affect birth parents, e.g. grandparent apply to adopt child, need to consider s.8 order, or a SG
s.8 is not stable and does not give main rights the carers, they need consent from the birth
parents of e.g. want to change name – so special guardianship will be preferred over s.8 + adoption
Adoptee
Must be under 18 on date of adoption application s.49(4) (if over 18 after application=ok)
An adoption order can be made if child reaches 18 before conclusion of proceedings – s.49 (5)
Order cannot be made if child reached age of 19 or is/been married –s.47(8), (9) –marry as young
as 16 if consent, a marriage in law makes seem mature, no need to exercise authority over them
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