Adoption
The law
on adoption
Placement
Adoption
orders
Cafcass
roles
Case
Management
Special
Guardianship
Independent Reviewing
Officers
Intercountry
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 main aims of the reforms were to align adoption law with the
Children Act 1989 and to try to ensure that the consent of the
birth parents is addressed at an earlier stage.
The child’s welfare is paramount. The Court
must be satisfied that the birth parents consent or that their
consent can be dispensed with on the grounds that they cannot be
found, they are incapable of consenting or that the welfare of the
child requires the consent of the parent to be dispensed with.
The Court may dispense with the consent of a
parent provided that the welfare of the child requires it.
Placement
Freeing for Adoption has been replaced by a new
process called Placement. A local authority or an adoption agency
can only place a child for adoption if the birth parents have
formally consented to placement or the local authority has applied
for a placement order.
- Parents may be consenting to placement
before proceedings start in which case the local authority or
adoption agency must ask Cafcass to appoint a reporting officer to
witness the consent.
- Alternatively the parents may consent
during proceedings in which case the court appoints the Cafcass
officer as reporting officer.
- Local authorities must apply for
placement orders in certain circumstances, for instance if care
proceedings are pending.
- Local authorities have the choice
whether to rely on a parent’s consent or apply for a placement
order in other circumstance for instance where a care order has
already been made.
- To avoid delay, local authorities should
always during care proceedings consider applying for a placement
order.
Adoption
orders
Adoption orders still have the effect of
permanently severing the legal ties between the child and the birth
parents. What is new is that the question of the consent of the
birth parents should in agency cases be dealt with at an earlier
stage, via a placement order or placement by consent. But any
parent or guardian is a necessary party to adoption proceedings
unless he or she has given notice that they do not wish to be
informed of the proceedings. As such, they must be given notice of
the final hearing.
For the first time children proceedings may
carry on 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.
Either at the request of the local authority or
adoption agency, or alternatively if ordered by the court, the
reporting officer must ascertain whether the parent consents
unconditionally and with full understanding and must report to the
court.
In all placement applications, and a wide range
of circumstances in adoption proceedings, notably contested
adoptions and adoptions where contact is an issue, the child must
be a party and the court must appoint the Cafcass officer as
Children’s Guardian unless satisfied that it is not necessary in
order to protect the interests of the child.
For the first time, the child or young person
may instruct his or her own solicitor. The power to appoint a
Children and Family Reporter in adoption is also new.
Case Management
and Delay
The overriding objective of the new Adoption
Rules and the rules about case management are closely modelled on
the Civil Procedure Rules. The Court is under a duty to allocate to
each case an appropriate share of the court’s esources, while
taking into account the need to allocate resources to other cases.
The court also has a duty actively to manage cases principally in
order to minimise delay for the child. This includes encouraging
the parties to co-operate with each other and to use alternative
dispute resolution where appropriate.
Special
Guardianship
This is another new concept. It is meant to be
a half-way house between a residence order and an adoption order.
Special guardianship confers parental responsibility in the same
way as a residence order but with the added safeguard that
applications by parents or the child to vary or discharge the order
require the leave of the Court. A special guardian is able to
exercise parental responsibility over anyone else that also has
parental responsibility of that child, apart from another special
guardian. The local authority has a range of duties to provide
support to holders of special guardianship orders. These 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 consideration of either further
family proceedings against the local authority or 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.