Adoption
The law on adoption
With effect from 30 December 2005 the law on
adoption was comprehensively reformed by the Adoption and
Children Act 2002 and the Family Procedure (Adoption) Rules 2005.
The new law brings adoption into line with the main themes of
the Children Act 1989 and to try to ensure that the question of
best interests and parental consent of the birth parents are
addressed at an earlier stage.
The new law makes the child’s welfare is
paramount and introduced a new adoption welfare checklist
which includes the long term implications of adoption. The court
can dispense with the consent of a parent to the placement and
adoption of their child provided that the welfare of the child
requires it.
The Adoption and Children Act enables the
partner of the parent to adopt as a single applicant and
couples who are living together whether they are married, in a
civil partnership or in an enduring family relationship and apply
for adoption orders.
Placement
A local authority or an adoption agency can
only place a child for adoption if the birth parents have formally
consented or the local authority has applied for a placement
order.
- Parents may consent to placement
and may also consent to the adoption, before
proceedings are issued in which case the local authority or
adoption agency must ask Cafcass to appoint an officer to witness
that consent.
- Alternatively the parents may consent
during proceedings in which case the court appoints a reporting
officer from Cafcass.
- The consent of a parent is not valid if
it is given before the child is six weeks old.
- A Local authority must apply for a
placement orders if they conclude that adoption is in the best
interests of the child, and the child is at risk of significant
harm and the parents does not consent to placement for
adoption.
- To avoid delay, local authorities should
always during care proceedings consider applying for a placement
order where the decision is made that adoption is in the best
interests of the child..
Adoption orders
An adoption order has the effect of permanently
severing the legal ties between the child and the birth parents.
Any orders which existed before the making of an adoption order
will be extinguished and the birth parents will become former
parents. The birth parent is an automatic party to adoption
proceedings unless he or she has given notice that they do not wish
to be informed of the proceedings. They will not receive
notification of the application but will be given notice of the
final hearing.
Adoption proceedings may continue beyond the
young person’s 18th birthday since an adoption order can be made at
any time up to the 19th birthday.
Cafcass roles
The new rules provide for the appointment of
reporting officers, Children’s Guardians and Children and Family
Reporters.
A reporting officer is appointed by the court
to ascertain whether the parent consents unconditionally and with
full understanding of the consequences and must report to the
court.
In all placement applications, and a limited
range of circumstances in adoption proceedings, the child
will be a party to the proceedings and the court must appoint a
Children’s Guardian unless satisfied that it is not necessary in
order to protect the interests of the child.
The court has the power to appoint a Children
and Family Reporter to prepare a welfare report for the court
on matters affecting the welfare of the child, without making the
child a party, and this is a relatively new role.
Special Guardianship
Orders
This is an order introduced by the Adoption and
Children Act 2002. It is meant to be a half-way house between a
residence order and an adoption order. A special guardianship order
confers parental responsibility on the special guardian who is able
to exercise it to the exclusion of any other person with parental
responsibility. The order provides more security than a residence
order in that a parent has to obtain the permission of the court
before being able to apply to discharge the order. The local
authority has a range of duties to provide support to f special
guardians and each local authority must make arrangements for the
provision in their area of special guardianship support
services.
Special Guardianship orders, unlike adoption
orders, cease to have effect at the age of 18.
Independent Reviewing
Officers
Local authorities must appoint Independent
Reviewing Officers (IROs) to monitor the cases of all looked after
children. The duties of the IROs are meant to prevent drift in the
implementation of care plans, or the “child lost in care”
scenario.
If IROs are unable to resolve issues with local
authorities and there is no one else, including the child himself
or herself, who could bring a court action, then they must refer
the case to Cafcass Legal for an assessment of whether there
should be further family proceedings judicial review proceedings,
or freestanding Human Rights Act proceedings.
Intercountry
Adoption
It is now an offence to write an unauthorised
home study report on prospective applicants for a foreign adoption
order. Other offences may be committed if children are brought into
the UK without following the proper procedures.
The UK has now ratified the Hague Convention on
Protection of Children and Co-operation in respect of Intercountry
Adoption 1993. This means that in many cases, provided an adoption
order is obtained in the child’s country of origin, it will not be
necessary for the applicants to obtain an order in the UK also.
Where the child’s country of origin has not ratified the Hague
Convention the procedures are more stringent. Applications for
adoption in the UK are still necessary and may be transferred to
the High Court.