image of 4 Paper Buildings logoGarden CourtCoram Chambers1 Garden CourtDNA LegalFamily Law Week Email SubscriptionHarcourt Chamberssite by Zehuti

The Adoption and Children Act 2002

Deborah Cullen, Secretary to the Legal Group at the British Agencies for Adoption and Fostering, guides you through the key provision of the new Act in preparation for it coming into force at the end of the year

The Adoption and Children Act 2002

Deborah Cullen, Secretary to the Legal Group, British Agencies for Adoption & Fostering

This Act, due to come fully into force on 30 December 2005, repeals and replaces the Adoption Act 1976, and makes some amendments to the Children Act 1989. This article focuses on the principal changes to adoption law, and mentions some of the amendments to the Children Act. There has already been partial implementation by means of modifications of the 1976 Act, notably the introduction of some adoption support services and the establishment of the independent review mechanism to consider the cases of applicants who are not approved as adopters.

Guiding principles
As in the Children Act 1989, section 1 sets out the principles to be followed, in this case not only by courts but also by adoption agencies. The child's welfare - throughout his or her life – is to be the paramount consideration. The Checklist of matters to be considered echoes that of the Children Act, but takes account of the lifelong consequences of the making of an adoption order. Regard must be had to the effect on the child (throughout life) of having ceased to be a member of the original family and become an adopted person. Agencies and courts must consider the child's relationship with relatives and other relevant people, and the likelihood and value of its continuation. The ability and willingness of relatives to provide a secure environment for development, and to meet the child's needs, and the wishes and feelings of relatives must also be taken into account. (Relatives in this context are not limited to those with a biological relationship.) As in the Children Act, delay is considered likely to be prejudicial, and courts and agencies must consider all options, only making an order under this Act if this is likely to be more beneficial for the child than no order.

The Adoption Service (sections 2-17)
These provisions are more prescriptive than those in the 1976 Act. Local authorities will now have to provide, or ensure the provision of, a range of adoption support services, and must, on request, undertake an assessment of needs for adoption support services for all adopted people, adopters and birth parents irrespective of the date of the adoption. There is also a power to undertake assessments of other people's needs for adoption support services. Once an assessment has been made, the local authority must decide whether to provide services; if it does so, a plan must be drawn up and kept under review. There is also provision for "Adoption Support Agencies". These are agencies other than registered adoption societies whose purpose is the provision of adoption support services and which will have to be registered under the Care Standards Act 2002.

Independent review of determinations
Section 12 gives the Government power to establish an independent panel to review "qualifying determinations" by agencies. In England this has already been established for the review of decisions on would-be adopters faced with refusal of approval. On full implementation decisions by agencies on whether to disclose confidential adoption information will also be "qualifying determinations."

Agency Adoption Placements
Sections 18-29 provide a new system for agency adoption placements. These must be read with sections 30-34 (restrictions on the removal of children), sections 47 (conditions for making adoption orders) and 52 (consent to adoption and placement). The aim here is to bring forward the point at which a decision is made about a parent's consent to adoption so that, in general, the placement for adoption can be made with greater confidence that the final order will be achieved. Parents who oppose adoption plans will be given the opportunity to contest them before the child is placed and has developed an attachment to the new family.

The basic framework is that agencies, if satisfied that a child should be placed for adoption, (s 18(2)), may place the child for adoption if they are 'authorised' to do so. They will be authorised to place if each parent or guardian has given formal consent to placement under s 19, or if they have a placement order under s21.

Consent under section 19 is consent to the child being placed either with specific adopters or with any prospective adopters chosen by the agency. The consent (s 52) must be given "unconditionally and with full understanding of what is involved" in a form prescribed by rules, which will require that it is witnessed by an officer of CAFCASS or Welsh family proceedings officer. Section 20 provides that when parents consent to placement they may also give advance consent to the actual adoption. Such advance consent may be withdrawn, but s 47 restricts the parent's ability to oppose an adoption once an application has been issued. Sections 52(9) and (10) provide that a birth father of a child placed for adoption who acquires parental responsibility after the mother has given consent to placement under s 19 is "treated" as having given consent himself.

Placement orders
A placement order is an order authorising a local authority to place a child for adoption with any adopters it chooses. An order may not be made unless

This is so even if the parent consents to placement. Even where section 31 grounds are established, the court will still need the consent of each parent or guardian of the child, or to dispense with that consent.

Section 22 sets out the circumstances in which the local authority must apply for a placement order - broadly, in circumstances where they consider that a child should be placed for adoption, but there is no authorisation under section 19. Obviously they cannot issue an application unless they believe that the conditions for the making of a placement order are met. A provision that will have considerable impact in practice, is that a local authority is required to apply for a placement order where there are care proceedings and the care plan is for adoption. In addition, a local authority may apply for a placement order if a care order is in force and the parents consent to adoption under section 19.

Parental responsibility
Once consent to placement under section 19 is given, or a placement order is made, the agency has parental responsibility for the child. Once a child is placed with prospective adopters they too acquire parental responsibility. The parental responsibility of the parents is not terminated until an adoption order is made. The agency may restrict the parental responsibility of any parent or guardian or of prospective adopters to the extent that it specifies.

Further effects of placement orders
Any care order is effectively suspended while the placement order remains in force; any section 8 order or supervision order under the Children Act is brought to an end and no such orders may be made while the placement order lasts.

Duration and Revocation of Placement Orders
Placement orders come to an end when the child is adopted, or reaches 18, or is married. They may be revoked on application to the court, (s24) but people other than the local authority or the child may only apply with the leave of the court. Leave can only be given if the child has not been placed for adoption, and the court is satisfied that there has been a change of circumstances.

The Act establishes a separate scheme for contact in respect of children awaiting adoption. Regulations modify the normal duties of local authorities to promote familial contact for a looked after child. Provisions in sections 8 and 34 of the Children Act do not apply when a child is authorised to be placed for adoption, but contact orders may be made under s 26 of the new Act. When making a placement order the court must consider arrangements made or proposed for contact and invite comments on the proposals. (Section 8 contact orders may however still be made when an adoption order is made, and at this point the court making an adoption order must consider the arrangements made or proposed for contact.)

Restrictions on removal of children
Sections 30-41 contain complex restrictions on the removal of a child placed for adoption, or where consent has been given for placement. Briefly:

As is the case now, the agency and the prospective adopter may give each other notice ending the placement - but the adopter is not required to return the child to the agency on request if an application has already been made for an adoption order, a special guardianship order or a residence order.

The Act imposes requirements for the minimum length of time for which the child must have lived with the adopters before they can apply for an adoption order. The minimum period for agency placements is 10 weeks, and for foster parents who are not applying as agency adopters, 12 months, unless the court gives leave.

Who may apply for Adoption Orders (sections 49-51)
A much publicised change will permit any couple (whether married or not), or a single person, to apply for adoption. It will also now be possible for a step-parent (i.e. a person who is the partner of the parent of a child) to apply for an adoption order without having to apply jointly with his/her partner; the birth parent who is the applicant's partner retains his/her parental status.

Domicile and habitual residence. Either both applicants (if it is a couple applying) must have been habitually resident in the British Islands for at least one year, or the applicant, or one of a couple if they are applying together, must be domiciled in a part of the British Islands.

Consent and dispensing with consent
Section 47 (conditions for making an adoption order) and Section 52 (the meaning of consent and the grounds for dispensing with it) must be read together. Broadly, section 47 conditions mean that, unless a placement order has been made, consent to adoption must be given or dispensed with. However, because of the restrictions on opposing the making of orders (where, for example, section 19 consent to placement was previously given) there will be some cases where it would appear that an adoption order can be made without consent to adoption, and without the need formally to dispense with consent. Under section 52 the grounds for dispensing with consent are that the parent cannot be found or is incapable of consenting, or that the child's welfare requires it.

Sections 56-65, and also 79, deal with issues about the keeping and sharing of information and make specific provision, in respect of future adoptions, (ie those made after the Act comes into force) for agencies to respond to requests from adopted people and birth relatives for information about each other. The views of the person about whom confidential identifying information is sought must be obtained if possible before the application for information is progressed.

Section 98 provides for intermediary services in relation to past adoptions. This will for the first time establish a statutory procedure for birth relatives to request help in obtaining information about, or initiating contact with, an adopted person. Adoption support agencies will have a role here, and regulations enable them to obtain information from the Registrar General and from adoption agencies. The regulations also allow for adopted people to register with the appropriate adoption agency their desire not to be approached.

Special guardianship
This is a new type of order, intended to provide a compromise between a residence order and an adoption order. Section 115 introduces new sections 14A-14G into the Children Act 1989. Key provisions include:

Stepparents and parental responsibility
As an alternative to adoption applications, section 112 of the Act inserts a new s 4A into the Children Act which allows for the acquisition of parental responsibility by a stepparent either by agreement or by court order.

Intercountry adoption
Changes to intercountry adoption are not substantial. The provisions of the Adoption (Intercountry Aspects) Act 1999 relating to England are largely incorporated into the new Act, with some additional restrictions and safeguards.