The law on adoption
With effect from 30th December 2005 the law on adoption was comprehensively reformed by the Adoption and Children Act 2002 and the Family Procedure (Adoption) Rules 2005. The updated law brought adoption into line with the main themes of the Children Act 1989 and tried to ensure that the question of best interests and parental consent of the birth parents are addressed at an earlier stage.
The updated law made the child’s welfare 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.
It 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 – can apply for adoption orders.
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 been granted 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 order if they conclude that adoption is in the best interests of the child, the child is at risk of significant harm, and the parents do 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.
An adoption order has the effect of permanently severing the legal ties between the child and the birth parents (except in the case of partner adoptions). 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.
The Family Procedure (Adoption) 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 proceedings, 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.
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 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 themselves, 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.
It is 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 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.