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78 Cards in this Set
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- Back
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Guardianship |
Person appointed as a child's guardian will have PR for the child concerned (s5(6)). In addition, he can appoint another guardian to take his place when he dies (s5(4)) and, before the child can be adopted, he must give his consent (s47(2) ACA 2002). Appointing a guardian and consenting to adoption are things that non-parents with PR cannot usually do. No need for judicial involvement to appoint a guardian, can be done by simply writing it down, dating and signing it - s5(3) and s5(5). |
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Guardianship (2) |
Appointment will only take effect when the last parent with PR dies, unless the person who makes the appointment has a CAO or is a special guardian, then the appointment takes effect when that person dies - even though there may be a surviving parent with PR (s5(7) and (8)). In that situation the guardian and surviving parent will both have PR and that will not affect the parent's PR. In that situation the guardian and surviving parent will both have PR and that will not affect the parent's PR. Neither guardian or parent will have priority over the other - s2(7). Any disagreements will have to be resolved by a s8 order – a guardian can apply withoutleave for any s8 order just like aparent – s10(4). Court can appoint a guardian either on application or of its own motion during family proceedings - s5(1) and (2). For them to do this one of the circumstances listed in s5(1) must exist. PR obtained by guardianship can be taken away but only by a court - s6(7). |
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Step Parents, Parents' Partners, Foster Parents and Relatives |
Non-parent has no automatic relationship in law with the child - if they want a legal relationship with the child they have to take steps to acquire it. s2(9) CA - person who has PR may not surrender or transfer it to someone else but may arrange for it to be met by someone else. PR holders can delegate their PR. Step parents and relatives may be able to exercise this delegated PR. s3(5) CA - person who has care can do what is reasonable in all the circumstances. Problem is it depends on parental cooperation. It is also very vague. |
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Step Parents, Parents' Partners, Foster Parents and Relatives (2) |
Non-parent wanting serious involvement in life of child will need to apply for s8 order and they generally need leave. Under s10(5) there is a privileged group of non-parents entitled to apply for CAO without leave. Paragraphs (a) and (aa) are aimed primarily at step parents. Child of the family defined in s105. Must be married or civil partners which is a significant limitation - lots of repartnered couples only cohabit. Note these paragraphs can be used even after divorce. Notealso definition of child of the family means they cannot be used by LA fosterparents but can be used by private foster parents. A child is privately fostered if he lives with someone otherthan a parent, relative or person with PR and the arrangement is intended tolast for more than a month. |
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Step Parents, Parents' Partners, Foster Parents and Relatives (3) |
Paragraph (b) - any person with whom child has lived for three years - not subsection (10) too. Paragraph (c) - anyone who can get the people with PR for the child to consent to the application. If one of the parents has a residential arrangements order it is enough to just get the consent of that parent. This can be of use to parents who can't look after their own child for some reason. Gives you some control over who becomes the substitute carer before child is taken into care. |
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Step Parents, Parents' Partners, Foster Parents and Relatives (4) |
Subsection (5A) (inserted by ACA) - local authority foster parents can apply if child has been living with them for at least the past year. Subsection (5B) (inserted by Children and Young Persons Act 2008) - relative can apply if they have had the child for the last year. Relative defined by s105 CA. Note: s10(5) only applies to CAOs and new provisions (5A and 5B) only apply to residence orders. |
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Local authority foster parents |
LA foster parents may not even be able to apply for leave. s10(3) says that s10 is subject to s9 and the restrictions in s9(3). Note if the year has immediately preceded the application the foster parent will be entitled under s10(5A) so doesn't need to worry about s9(3). s9(3) was designed to keep LA foster parents strictly under local authority control. Was thought necessary because: 1. LA need to be able to plan for the future of children under their care - don't want foster parent to mess this up by getting attached and starting proceedings to keep the child. 2. About 1/3 of children LA look after are not actually in care, are being temporarily accommodated by LA with parental agreement. Parents need to feel that it is safe to use this service. If parents thought LA foster parents might try and keep their children they might be unwilling to ask LA for help. |
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LA foster parents (2) |
May have to get LA consent after s9(3) - only one little possible way around that: under s10(1)(b) the court can make a s8 order of its own motion. Does that mean that the court can make an order of its own motion even though no application could be made because of s9? Gloucestershire County Council v P [1999] - court held that they could grant the foster parents a residential order of it own motion even though the LA was pursuing adoption by strangers for the child. “A foster-parent application which is not supported by thelocal authority…ought to be scrutinised by the court with great care… To makean order granting residence to foster-parents who are prohibited from makingthe application themselves has to be a most exceptional order made on cogentgrounds firmly based on the clear needs of the child.” |
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The leave requirement |
Law Commission: "The requirement of leave is intended as a filter to protect the child and his family against unwarranted interference in their comfort and security, while ensuring that the child's interests are properly respected." In spite of that many grandparents in particular resent the fact that they have to get leave. Nevertheless the Family Justice Review recommended against removing the leave requirement for grandparents as they are unlikely to lose contact if they had a meaningful relationship with the child before separation. Government accepted their recommendations and have retained the requirement. |
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The leave requirement (2) |
s10(9) lists some factors to which the court must have particular regard when deciding a leave application. Extra factors in (d) for when a child is in the care of a LA which reflect the reasons for keeping foster parents under strict control. Re A and W [1992] - CA held that the welfare principle doesn't apply to a leave application as the child's wellbeing is not directly in issue - application of the Richards principle. Court should take into account of the likelihood of an order being made - Re B [2012]. They can then move onto substantive application – decided inrelation to welfare principle and (if contested) welfare checklist. |
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The leave requirement (3) |
CA made it clear that presumption in favour of contactdoesn’t extend to grandparents or stepparents. When residence is sought bygrandparents questions are raised about their age and health – can they meetthe child’s needs? Re B [2012] –reversed decision granting residence to grandparent. “Inevitably there aredisbenefits for a child to be brought up by an adult of a different generationto either of her parents.” But if it’s a case where the state is interfering andrelative is competing with strangers then they will get the benefit of theblood tie. |
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The leave requirement (4) |
Re B-S [2013] - "Adoption is the 'last resort' and only permissible if 'nothing else will do' and that...the child's interests include being brought up by the parents or wider family unless the overriding requirements of the child's welfare make that not possible." Preference for kinship care as opposed to stranger care issupported by Convention jurisprudence on Article8. This preference is also given effect in statutory provisions in CA on looked after children. LA sometimes supports proceedings by family members forprivate law orders instead of having to bring care proceedings. Re C [2009] –five-year-old boy to live with his 70-year-old grandmother, with whom he had animportant relationship, rather than being placed for adoption. |
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The leave requirement (5) |
When a non-parent gets residential order he has to be givenPR while order is in force – s12 CA.If all the non-parent gets is contact, the court may give him PR under s12(2A) CA. Note that non-parentcan have PR. Non-parent with PR under the above provisions is subject torestrictions under s12(3) CA – can’tagree to adoption or appoint a guardian for the child. Also s13 applies whenever there is aresidential order in force. |
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The leave requirement (6) |
Step parent: should apply jointly with biological parentotherwise might end up in a better position than natural parent; step parentsare less likely to apply for residence acts because of s4A which does the same for step parents as s4 does for unmarried parents. PRA will require consent of both biological parents if theyboth have PR. If agreement isn’t forthcoming he’ll have to apply for PRO butcan only do that while still the spouse of biological parent. Step parents now have access to much more straightforwardway to get PR but take up has been low – only about 7,000 agreements and ordersmade under this section even though there are about 400,000 marriedstepfamilies. |
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Special Guardianship |
Created by the ACA 2002 - it is an alternative to adoption, especially for looked after children and represents a middle ground between adoption and a CAO. To be used when adoption is not appropriate. Law on special guardianship is to be found in ss 14A-14G CA inserted by the ACA. Child cannot be adopted without his consent (s47 and s144(1) ACA) and he can appoint a guardian. s14C(2)(a) - would seem to extend to the judicially created exceptions to s2(7). |
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Special Guardianship (2) |
Parents can still apply without leave for other s8 orders when an SGO is in existence but this could be remedied by a s91(14) order however overcoming the leave restriction which this orderimposes on parents wanting to apply for s8 orders there is not difficult - onlyhave to persuade judge that they have an arguable case with some chance ofsuccess. The fact that birth parents cannot be effectively preventedfrom using s8 applications to harass SGs with legal challenges to their statushas been identified by both judges and commentators as a weakness in thelegislation. Birth family contact is common here. Many SGs find that hardto deal with. SG doesn’t offer same degree of security, permanence andstability as adoption and there is evidence that non parent carers value thesense of ownership and control that comes with adoption and adoption is stillviewed as a “gold standard”. |
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Eligibility for SGOs |
Provision here is s14A. Legal framework resembles that of s8 orders - free-standing application can be made or court can make it during family proceedings on application or of their own motion. SG must be over-18 and must not be the child's parent. Two categories of applicants: - those who are not entitled - those who have to get the court's leave to apply |
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Eligibility for SGOs (2) |
Entitled applicants are dealt with in s14A(5). Someone who does not fall within any of these categories will need to apply for leave - court takes into account the same factors - s10(9). If a non-entitled applicant is a LA foster parent then s9(3) will apply. People may apply jointly to become special guardians and no requirement that they be married. |
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Eligibility for SGOs (3) |
Procedural requirements: - applicants must give three months' notice to the LA of their intention to apply for a SGO - LA must investigate the applicant's suitability and make a report to the court - no notice requirement when court makes SGO of their own motion but court can't make a SGO without first obtaining a suitability report When deciding whether to grant an SGO the child's welfare will be paramount. The welfare checklist applies here - s1(4)(b). |
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Circumstances in which SGOs have been granted |
Not been used much by long term foster parents, has beenused in relation to older children and ethnic minorities more than adoption butnot as much as expected. Predominant use has been by relatives, but not alwaysrelatives with whom child is already settled. Relatives don't want to undermine parents' position so don't put themselves forward as potential carers until it gets to the point where if they don't the child will go to strangers. No "try out period" requirement as there is with adoption. There has been an increase in their use as adoption should only be a last resort. |
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Circumstances in which SGOs have been granted (2) |
Courts choosing adoption over SGOs often point to specific justifications: Surrey County Council v Al-Hilli and Others [2013] - lost their parents in a shooting; aunt and uncle caring for them were given SGOs so the children could retain family links and their identity. Re D [2014] - better for 2-year-old boy to stay with foster parents under SGO than be placed for adoption as he would have continuity of care and the connection with his mother, sibling and Czech Roma ethnicity would not be broken. |
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Circumstances in which SGOs have been granted (3) |
Re F [2015] - Congolese baby injured by parents but it was thought important to his welfare throughout his life that he maintain contact with birth family members and links with his cultural and ethnic heritage so white foster mother granted SGO rather than adoption. N v B [2013] – adoptionorder granted to maternal grandmother as it was considered important that thegrandmother not be required to share PR with the man who had killed and raped herdaughters. Court thought that an SGO even with a s91(14) order would be insufficient to prevent the father fromattempting to control the children’s lives. Re DF and GF [2013]– girl had been seriously injured by father; mother was unreliable andmanipulative. Aunt and uncle need the confidence of “watertight arrangements”which SGOs could not provide. |
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Circumstances in which SGOs have been granted (4) |
Re N [2014] – girlwith serious disabilities was adopted by her foster parents as she would bedependent beyond her childhood – she needed a life-long order rather than anSGO which would expire when she was 18. Links to her Nigerian and Jamaicanheritage would be maintained through the family contact that the foster parentswere prepared to arrange. Some people think this has gone too far – there have been recentcases of kinship care breaking down and this has been blamed on the assessmentprocess being less rigorous for SGs than adopters. There have been cases ofsettled adoption cases being disrupted at a late stage by potential kinshipcarers. |
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Circumstances in which SGOs have been granted (5) |
Re LG [2015] - 8 month old baby was removed from prospective adopters and sent to grandfather who would become SG. A and B v Rotherham Metropolitan Borough Council [2014] - child of almost 2 who has been with prospective adopters for 13 months was mixed race, adopters were white. Biological father persuaded the court that the child should be kept with his Black African family. Child was sent to an aunt who lived a considerable distance away and they'd never met. These kinds of orders were branded Dickensian and the PrimeMinister in 2015 announced he would change it and children would only be sentto live with relatives they already have a bond with. Don’t know any more aboutthese proposed changes yet. |
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Adoption |
Now governed by ACA 2002 which was passed by Tony Blair's Labour Government and central aim was to increase adoption of children cared for by LAs. "looked after" is a broader term than in care - s22 CA for definition. Government blamed LA for not pursuing adoption more vigorously and for delays. But the nature of adoption has changed - there are few healthy babies given up for adoption nowadays, they are mostly abuse and neglect victims with complex emotional and behavioural problems as a result. |
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Adoption (2) |
Labour's position failed so the Coalition Government then started its own pro-adoption campaign with Martin Narey as their "adoption tsar". There are two opposing approaches - one focusing on rehabilitation (approach that underlies CA) and the other on rescue (Narey's preferred approach). |
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Martin Narey's views |
Social workers are hesitant to remove children from familiesdue to the negative perception of care along with the rights of birth families.Narey thinks we should be removing children more quickly before they become toodamaged and old to be adopted. He also draws attention to the low success rate of family reunification.For him adoption is the golden option. It has been established by recent largescale research study that adoption is a very stable form of care: adoptiondisruption rate (% of adoptions which break down) is 3.2%. Disruption rate forSGOs is 5.6%, 25% for residential orders, 28% for long term foster carers. This study confirms that the risk of a disruption is linkedto age of child, number of foster homes, length of time waiting form adoption. |
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Adoption (3) |
After the Narey report and the Family Justice Review the Coalition decided that early and fast adoption was the way to go and they sought to achieve this by amending the ACA via CAFA and also threatening to strip LAs of their adoption role if they did not seek adoption rigorously enough for the children they looked after. LA were told to always consider adoption as a possiblepermanent option, not just a last resort. This has had an effect between 2011and 2014 as the number of children adopted increased by 63%. However courts are not convinced this is the right approachand over the last couple of years placement and adoption orders have halvedagain. Current Conservative Government is proposing further legislative changein order to increase adoption. |
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Adoption Proceedings - Guiding Principles |
Adoption decisions are governed by s1 ACA - applies to courts and adoption agencies. Aim to align adoption law with provisions of the CA. s1(2) introduced paramountcy into adoption law for the first time. Have to think about how adoption would affect someone, even as an adult. Non-delay principle in s1(3) and no order principle is in s1(6). Note under s1(6) courts should also ask themselves if adoption is necessary in the circumstances - better than not making one. |
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Effect of an Adoption Order |
s46(1) and (2) - adoption order gives PR to adopters and extinguishes PR of parents. s67(3) - adopted child is not to be treated as the child of anyone other than the adopters - adoption extinguishes the legal parenthood of the birth parents. Re C [1993] - ability to apply for s8 order as a parent under s10(4) doesn't extend to someone who's child has been adopted because they don't count as a parent. They also don't retain an Article 8 right to family life. |
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Effect of an Adoption Order (2) |
s46(3)(b) changed the position with regards stepparent adoptions. Now no longer have to apply jointly with biological parent (avoiding the undesired consequence that biological parent became adoptive parent of their own child). Also applies to a new cohabitant so long as relationship is enduring. Different from CA as cohabitants don't count as stepparents. s67(2) makes it clear that adopted child can never be illegitimate. |
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Effect of an Adoption Order (3) |
Adoption orders are meant to be final - can be appealed against in a normal way but once that route has been exhausted, only possibility to have it set aside is under the inherent jurisdiction. That will only be done in very exceptional circumstances. Webster v Norfolk County Council [2009] - CA refused to put aside adoption orders when it was discovered that 2-year-old boy who had suffered non-accidental fractures has scurvy which is what made him vulnerable to the fractures. This was firstly, on public policy grounds, as fewerprospective adopters would come forward if their status as adoptive parentswere not completely secure, and, secondly, it would not be in the children’sbest interests as they had been with their adoptive families for four years andwere settled. |
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Who can be adopted? |
s47(9) - someone who is under 19 can be adopted, but under s47(4) the application has to be in before their 18th birthday. s47(8) - no matter how old you are if you've been married/civil partner you can't be adopted. |
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Who can adopt? |
s49 ACA - people can adopt as couples or on their own. |
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Adoption by a couple |
Couples have to apply under s50. S144 has thedefinition of couple. Separated spouses can be granted a joint adoption order –no requirement for spouses/civil partners to have enduring relationship. Re CC [2013] - married prospective adopters separated but were stillgranted a joint adoption order as: the girl now regarded both of the spouses asher parents; they had continued to co-parent successfully post-separation; andit would be better for the girl’s position within the family if she had thesame legal relationship with both husband and wife and if all three childrenhad the same legal relationship with the parents. Prior to ACA itwasn’t possible for unmarried couples to adopt jointly but now they can so longas they are partners in an enduring relationship. |
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Adoption by a couple (2) |
Hedley J in T and M v OCC and C [2010] - these words were chosen so as to not require the residence of both in the same property. Re P [2008] - decision not to marry would still be a factor in the suitability of prospective adopters. Definition of couples now extends to same sex couples for the first time. Thiscame about as a late Government amendment and was very controversial at thetime. They only got it through the Lords at their second attempt and even thenonly by a narrow majority of 21 votes. Argument was that if the number of adoptions were going to be increased then the pool of potential adopters has to be widened. In 2015 8% of adopters were same sex couples, 82% were opposite sex couples and 10% were solo people, 90% of whom were women. |
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Adoption by one person |
s51 ACA. Person adopting alone should not be a spouse or civil partner - they are expected to adopt as couples. However there are two ways around this: - Adopt alone under s51(2) if you are adopting your stepchild. As a result of s46(3)(b) this will not remove the parental statue of biological parent. - In circumstances listed in s51(3) and (3A). This route would have been open to the wife in Re CC but they succeeded in getting joint adoption order despite their separation. If a person is living with someone but not married to them there is nothing in the statute to stop them from adopting alone under s51(1). However social workers investigating suitability would have many questions about why the couple weren't adopting together. |
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Adoption by one natural parent |
s51(4). Used to be done as a means of legitimising a child can't be illegitimate. Not used for that purpose so much anymore. Can also be used to cut undesirable parent out of the picture. But court will want some reason to justify this. Re B [2002] (HOL) - unmarried father allowed to adopt his baby daughter on his own. Mother entered into a PRA on finding out he wished to care for the baby but he was afraid that she might change her mind in the future and wanted the extra security of an adoption order. The HOL thought that these were reasons that justified cutting the mother out of the child's life. Not everyone agreed that these circumstances justified leaving the child without a legal mother. |
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Agency adoptions |
Adoption agencies deal with two kinds of cases: 1. Children who are being looked after by the LA - usually LA and adoption agency will be one and the same because under s3 ACA all LAs have a duty to provide adoption services.
2. Children who have been voluntarily given up at birth for adoption by their parents - very rare now, only about 50 cases a year. |
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Non-agency adoptions |
Usually involve children living with non-parent carers who decide they want to adopt - usually step parents or relatives. About 1/6 of adoptions are intra family adoptions. Private or LA foster parents sometimes decide they want to adopt a child they are fostering and these will also count as non-agency cases although LA foster carers may be able to persuade LA to transform their foster placement into an agency placement for adoption. |
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Placement for Adoption |
Agency adoption will always involve a placement for adoption - it is the key point in an agency adoption. According to s18 ACA need either consent of parents (under s19 ACA) or placement order placements (under s22). |
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s19 placements |
Consent of parents, guardians or special guardians is necessary. Word "parent" in the ACA means a parent with PR - different to what it means in CA. If parent withdraws consent child will have to be returned to them unless agency can get a placement order. Once the actual adoption order has been applied for the parental consent to placement cannot be withdrawn. Note: consenting to placement for adoption isn’t the same asconsenting for the actual adoption. If you’ve consented to placement it wouldbe difficult to oppose the adoption at the final hearing but it is possible. |
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Placement order placements |
s21 sets out the conditions, both have to be satisfied: 1. (2) - court can only grant placement order where child is already subject to care order or it would be possible on the facts to get a care order. Threshold conditions in s31(2) for granting care order have to be satisfied. Only exception is where child has no parent or guardian. This means no child can be coercively removed and placed for adoption unless the state can first establish that the birth parents pose a risk to the child's health and safety. 2. (3) - parents must have consented to the placement or it must be possible for their consent to be dispensed with (under s52(1)). If both these are satisfied the court then has the power to grant a placement order but it doesn't necessarily follow that it ought to grant one because s1 applies here too. |
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Placement order placements (2) |
Placement order must be in the child’s best interests.Clearly aim is to deal with potential problems at an early stage – if thedemanding conditions for a placement order can’t be satisfied there will be noadoption. But if placement occurs and it goes well, then it is very likely thatthere will ultimately be an adoption. Possible that parents will be permitted to oppose thegranting of adoption order but once proceedings have got that far their chancesof preventing an adoption are very small. That’s why placement stage is the keystage in agency cases. If child is going to be adopted against its parents’ wishesthis will effectively be the point at which they have lost the battle, which iswhy CA described placement orders as a fundamental and draconian order. |
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The effects of placement/authorisation to place |
s25 - adoption agency gets PR as do any prospective adopters but parents retain PR right up to the point at which an adoption order is made. Doesn't mean they get chance to use it - agency has control over parents' exercise of PR (s25(4)). s26/27 deal with contact. It may well happen during adoption placement and court has to consider question of contact before making placement order. s28 - no one can change child's surname or remove them from UK for more than a month without court's leave or consent of parent/guardian. |
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Revocation of a placement order |
s24 - parents can seek a revocation of a placement order so long as child is not actually placed at the time. Parents will need courts leave to apply which can only be granted if there has been a change of circumstances since the order was made. Even if the court decides there has been a relevant change of circumstances it has discretion to grant leave - considers if the applicant has a real prospect of success. Child's welfare will be relevant to that decision but not paramount. It is paramount to revocations but not at leave stage. |
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Applications for placement order |
Only LA adoption agencies can apply for a PO. Most adoption agencies are LA agencies, but some of them are voluntary. Effect of s22 is that if a LA thinks the requirements for a care order have or could be met, and they think the child should be adopted but parents aren't consenting, then it must apply for a placement order. As a result it's now common for care and placement order applications to be made simultaneously. |
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Applications for placement order (2) |
Commentators think that this pressure on LAs to consider adoption at an early stage is a concern as it doesn't leave time for other options to be investigated. Problem could be exacerbated by CAFA amendments - 26 week limit on care proceedings and fostering for adoption. Fostering for adoption involves looked after children for whom LA is considering adoption being placed as early as possible with foster carers who could become their adopters. Means that adoption can happen twice as fast and the child doesn't face the disruption of a move to new carers. Currently about 10% of adopted children have been placed with adoptive families early but Government is putting pressure on LA to double this figure. |
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Preliminaries to adoption |
Stringency of requirements that a prospective adopter has to satisfy depends on which of the four categories of adopter he is: - agency placements - non-agency applications - applications by parents' partners - LA foster parent applications - other cases |
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Preliminaries for agency placements |
Residence requirement of 10 weeks - s42(2). 10 weeks must be immediately preceding the application. Adoption agency need sufficient opportunities to see child together with applicant in home - s42(7). s45 - couple will need a relationship which is stable and permanent to be regarded as suitable. |
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Preliminaries for applications by parents' partners |
Six month residence requirement - s42(3). Three month notice given to LA - s44(2) and this exists because they need to assess suitability. s44(5) and (6) - investigate suitability and report to the court. Assessment process is very rigorous - involves home visits, interview, medical examination, police checks, references. However Coalition streamlined this process so now only takes 6 months not 8 - thought it was putting prospective adopters off. |
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Preliminaries for applications by LA foster parents |
They could benefit from agency placement - s18(1)(b) and 18(5) - may persuade LA to approve them as prospective adopters and if LA can get parents' consent or placement order then the placement for fostering becomes transformed into agency placement for adoption and they become agency adopters. If this route doesn't work they will need to make a private application and face more demanding preliminaries: 1year residence requirement – s42(4).S42(6) court can give leave forapplication to go ahead even if residence requirement isn’t satisfied. Noindication of how s42(6) applicationshould be dealt with. |
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Preliminaries for applications by LA foster parents (2) |
Re A, TL v Coventry City Council [2007] - the question to be asked in a s42(6) leave application is whether the substantive application has a real prospect of success. Child's welfare is relevant but not paramount. In that case foster mother wanted to adopt child she waswith but LA did not think she was suitable, got a PO and approved a couple asprospective adopters. Foster mother made application under s42(6) (needed leave as child had only been with her for 9 months).CA overturned original refusal to grant leave as child had developed strongbond with foster mother and her children and her application was supported bythe birth mother and the Children’s Guardian. 3 month notice requirement for LA to investigate suitability as adopters as opposed to foster parents. July 2013 Coalition introduced 4 month fast track for foster parents wanting to adopt child already in their care. |
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Preliminaries for applications by others |
Three year residence requirement - s42(5) but residence requirement can be waived under s42(6). Re MW [2014] - relative given s42(6) leave in relation to a 17-year-old boy that she wished to adopt because if the 3 year residence requirement were fulfilled, he would be over 19 and ineligible to be adopted. Court thought there was a real prospect of the substantive application succeeding. |
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Restrictions on Removal of the Child prior to Adoption: Agency cases |
ss30-35 ACA 2002. Where a child has been placed for adoption and an application has been made for: - an adoption order - a residential order or SGO, or for - leave to apply for a residential order or SGO, the parents and the LA can only remove the child with the leave of the court. Parents cannot remove the child at any time if there is a care order or PO in place. |
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Restrictions on Removal of the Child prior to Adoption: Non-Agency cases |
ss36-40 ACA 2002. After making the adoption application, the child can only be removed with the leave of the court. It is also possible for the prohibition against removal without the leave of the court to apply at an earlier point: - relatives and private foster parents are protected from removal by the parents if they have given notice of intention to adopt or have applied for leave to apply. Protection lapses if actual application has not been made within four months of giving notice. - parents' partner is protected from removal by the parents by giving notice of intention to adopt, but only if the child has been living with him for 3 years |
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Restrictions on Removal of the Child prior to Adoption: Non-Agency cases (2) |
- LA foster parents are protected from removal by the parents of an accommodated child once they have had the child for 5 years and and have given notice of intention to adopt, or have made an application for leave to apply for adoption order. If there is a CO or PO, the parents will not be able to remove the child at any time. - to be protected from LA, foster parents must have had the child for a year, they must have had the child for a year, they must have given notice of intention to adopt, and the child must only be accommodated by the LA. Must not be a CO or PO. Under s44(4),relatives and foster-parents (but not parents’ partners) need to have fulfilledtheir residence requirements before they can give notice of intention to applyfor an adoption order, unless they have been granted the court’s leave toapply. |
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Restrictions on Removal of the Child prior to Adoption: Non-Agency cases (3) |
The protection from removal will not always be adequate andsome prospective adopters would be advised to start by getting a residentialorder. This way, they can be sure of fulfilling the residence requirements foradoption. There may also be grounds for challenging a removal viajudicial review and/or the Human RightsAct 1998. If this is the case, the court might grant an injunction toprevent an anticipated removal. |
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The Adoption Decision |
Things that must be done before this decision is made: - fulfil the eligibility requirements - in agency cases, a placement order or parental consent to placement must be obtained - be deemed suitable by the AA, both in general terms and in relation to the particular child - have a successful placement - fulfil the relevant preliminaries - make an adoption application Governed by the welfare principle and court will ask a series of questions in a particular order. |
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1. Where should the child live? |
Butler Sloss in Re S [1993] - presumption that it is in the best interests of the child to live with their natural parents. "presumption may be displaced in cases where the parent is not capable of meeting the needs of his child". Is there a realistic chance of rehabilitation with the birth family? |
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1. Where should the child live? - competing applications |
Some cases will involve more than two competing applications - may also have relatives in the picture seeking residence order or SGO; or foster parents. Where there are competing applications the court will try and hear them all together so they know all the options available to them. |
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2. Is it in the best interests of the child to be adopted? |
Just because the child should live with particular, doesn't mean it is in the child's best interests to be adopted by those people. Some less dramatic measure may be more suitable such as SGO or residence order. Adoption proceedings are family proceedings and so court can make any s8 order of its own motion, can appoint guardian or grant SGO of its own motion. Some circumstances that might prevent an adoption from being in a child's best interests: |
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a. Intra-family adoption - adoption by parents' partners |
Represent about 1/6 of all adoptions but have always raised concerns. Re M [1991] - children adopted by mother and new husband. Exceptionally, the adoption order was set aside after CA gave the birth father leave to appeal out of time. His ignorance of his ex-wife's terminal medical condition vitiated his consent to the adoption order. This is questionable because adoption orders are supposed to be final but basically CA thought the whole situation was so unsatisfactory that it has to be unraveled somehow. No precedent was being set. |
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a. Intra-family adoption - adoption by parents' partners (2) |
Critics question whether this situation really was exceptional – with step parent adoptions always a risk natural parent will die and even greater risk that the marriage will break down. This is even more of a risk now that cohabitants are treated as step parents. Married step parents now have the option of using s4A CA to improve their positioninstead of adoption. PROs and PRAs are not irrevocable and don’t remove PR ofbiological parent. Unlikely that step parent application will be granted ifbiological parent is contesting it. |
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b. Intra-family adoption - relative adoptions |
Also concern about relative adoptions because of the way they distort family relationships. Old residence requirement was 13 weeks, now 3 years so clearly a strong desire for relatives to consider other options. Number of circumstances in which the courts have been persuaded that adoption will serve child's interests better than anything else: - where the grandparents were already well-established as the parent figures in the child's life so that the adoption order would simply bring the legal relationships into line with the social relationship - where the grandparents were getting old and wanted to be able to appoint guardians to take their place |
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b. Intra-family adoption - relative adoptions (2) |
- where, without an adoption, the parents were likely to threaten the child's stability by trying to interfere using s8 orders - where there were reasons for wanting a legal relationship which would continue beyond the child's majority, for example, a disability Arguably SGO could meet some of these concerns (case law predates its introduction) and yet we are still seeing examples of relatives getting adoption orders instead of SGOs because of the need for permanency. |
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c. Transracial adoptions |
s1(5) ACA used to tell adoption agencies that they had to give due consideration to the "child's religious persuasion, racial origin and cultural and linguistic background." But this has been amended by CAFA so that it no longer applies in England, only Wales. Nevertheless in the absence of s1(5) there are parts of the welfare checklist in s1(4) that the courts regard as raising the issue of race. Recently has been controversy about children from Eastern European countries being taken into care in the UK and adopted by British families, but the courts have responded to this by asserting their power to make non-consensual adoptions even when the parties involved are not British nationals. |
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c. Transracial adoptions (2) |
But they have also said courts must rigorously apply the principle that adoption is the last resort and the court must adopt an appropriately rigorous approach to the consideration of the welfare checklist including any bits which focus on "the child's national, cultural, linguistic, ethnic andreligious background and which, in the context of such factors, demandconsideration of the likely effect on the child throughout her life of havingceased to be a member of her original family” - per Sir James Munby P in Re CB [2015]. Re A [2015] - adoption placements approved for two Ghanaian brothers with white British foster parents who had cared for them for 7 years. “Thereality was that the boys had a number of needs, not limited to importantconsiderations related to nationality, culture and race, and there was noperfect way in which to satisfy all of those needs.” The older boy needed to truly belong to the foster parentsand live life free of the LA, and the younger brother (who had Down’s Syndrome)needed stability and security into adulthood and for his carers to have theability to secure services he will need into adulthood. |
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3. Are the parents consenting to the adoption and, if not, can their consent be dispensed with? |
If the court decides that adoption would be in the child's best interests, it then needs to turn to the question of parental consent. Main consent provision is s47 - non-agency adoptions dealt with in s47(2). In agency cases the consent issue will effectively have been dealt with at the placement stage, so parents in agency cases are not actually asked for their consent at the adoption decision stage. Under s47(4) the requirement is that they are not opposing the adoption. However under s47(5) they will only be allowed to oppose the adoption with the leave of the court. Under s47(7) that leave will only be granted if there has been a change of circumstances since placement. Parental consent will be irrelevant in any agency adoption at the decision stage. |
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Leave to oppose |
In Re P [2007] the CA said an application for leave under s47 involves a two-stage process: a finding of material change of circumstances simply opens the door to an exercise of judicial discretion. The exercise of discretion is governed by the welfare principle. With other leave applications under the ACA the child's welfare is just a relevant consideration but here it is paramount at the leave stage. After this case was decided some commentators questionedwhether it would ever be in the child’s best interests for a settled adoptionplacement to be put in jeopardy? |
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Leave to oppose (2) |
Before 2013 the courts did take a view that a leave tooppose application would only succeed in exceptionally rare circumstances. Butthen Re B-S [2013] came along. Itdraws on statements made in Re B [2013]by SC (this decision had not attracted much attention as it focused on atechnical issue). Munby J said “Parliament intended s47(5) to provide a real remedy…” they did not intend for s47(5) to be an impossible hurdle. Bear in mind that adoption is a last resort, and the child's best interests include being brought up by its parents unless overriding requirement of welfare says otherwise. |
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Leave to oppose (3) |
Re LG [2015] - still the case that applications for leave to oppose will only be granted in a minority of cases. However successful claims for leave to oppose under s47(5) seem to have become more common since Re B-S, including in this case itself. Father granted leave to oppose when child had been with“perfect” prospective adopters for 8 months because grandfather appeared lateto look after child (even though it was because father hadn’t told him thechild existed). Also need to look at s52(6) which tells us that it is only parents with PR who need to give consent. However a father without PR should not be completely ignored - according to s1(8) ACA an unmarried father counts as a relative for the purpose of s1 ACA. As a result s1(4)(f) requires regard to be he to his relationship with the child and their wishes and feelings, so the general practice is to notify the father and consider his views. If unmarried father has an Article 8 right to family life then he has a strong argument forbeing notified. Whether an unmarried father has an Art 8 ECHR claim to “family life” is a question of fact. “Familylife” between a child and a biological father without PR is not automatic. Itdepends on de facto family ties. Onlyin exceptional circumstances can child be adopted without the knowledge offather who has Article 8 right e.g.where he is violent and dangerous. |
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Dispensing with parental consent |
Two ways in which this can be done, set out in s52(1) ACA 2002. s52(1)(b) (in conjunction with s1) is controversial as it extends paramountcy to the decision to dispense with parental consent. Following enactment of the ACA there was debate about whether it would now be easier for children to be adopted against their parents' wishes. Court has to be able to say that it is "demanded" that consent be dispensed with - it must be necessary, not enough that it would be reasonable or desirable to dispense with consent - Re P [2007]. |
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Dispensing with parental consent (2) |
s52(1)(b) was extensively analysed in Re P: "there is, perhaps, no more important or far-reaching decision for a child than to be adopted by strangers" - they geld that the Draconian nature of adoption decisions had been taken into account in s1 ACA - noted differences between s1 ACA and s1 CA: have to consider welfare for whole life in ACA and s1(4) checklist is more extensive. They also emphasised the significance of the parents' Article 8 right - decision to dispense with consent will be an interference with this right so therefore has to be necessary and proportionate to the legitimate aim. Court must take least interfering approach. Re B-S said this is a "stringent and demanding test" - can only be satisfied if they have considered all the options. |
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Dispensing with parental consent (3) |
Re B-S created a frenzy, there were a torrent of appeals claiming that lower court decisions were not Re B-S compliant. Cases were delayed while LA reassessed relatives as possible long term carers. Most significantly adoption starts to diminish. In Re R [2014] Munby J tried to address the misconceptions and reaction from Re B-S and specifically deny that he had changed the law. However this case seems to have had little impact and use of adoption has continued to decline. Adoption has halved again over the law two years - the gains that were made are quickly being lost. |
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Dispensing with parental consent (4) |
People argue that the law hasn’t changed but it clearly is being applied more rigorously than it was before. Many of the appeals after Re B-S were successful and many LA social workers seem to have lost confidence in their ability to get an adoption plan past a judge – they are now focusing on other options for looked after children. But LAs are still under pressure from Government to increase theiradoption rates. Munby admitted there is now a conflict between Government and senior judiciary in their approach to adoption. He accepted things must be difficult for LA social workers stuck in the middle and if Parliament didn't like the ways courts were interpreting legislation they could always change the legislation. Seems the Government is now proposing to do just that. Government want to focus on long term reparative care. These are likely to favour prospective adopters over friendsand family who are merely willing to step in in a crisis to prevent parentsfrom losing their child. But we don’t know the substance of the proposed reforms atthe moment. |
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4. Should there be post-adoption contact? |
When most adoptions were babies there was no question of this but nowadays we've moved towards open adoptions and keeping adoption from children is frowned upon and often impossible as children are older and remember their birth families. Is it always necessary for this relationship to end on adoption? This has been favoured as it satisfies the child's need for information about where he came from and who he is. s46(6) - court granting adoption order should consider whether they need an arrangement for contact. Statutory guidance says arrangements don't mean orders - courts have always been unwilling to grant contact orders especially when adopter objects. |
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4. Should there be post-adoption contact? (2) |
Coalition made it clear that it wasn't convinced of the benefits of contact. They thought the expectation of contact might put prospective adopters off, so CAFA introduced s51A into ACA. s51A seems to make contact orders even rarer than they already are. Under this the court can still order post adoption contact but can also order it not to take place. Adoptive parents and child can apply for s51 order as a right but birth parents always require leave. In deciding whether to grant leave the court will take account of any potential to disrupt the child's life or harm them. Court will also take account of any representations that the adopters wish to give. If court makes an order of its own motion it can only be prohibiting contact. The general theme seems to be against contact being ordered. |
