Adopting fresh laws for children

District Judge Susan Spencer summarises adoption and child law changes which current family law advice should contemplate

The Adoption and Children Act 2002 makes wide-ranging changes, both to adoption and to the Children Act 1989 (CA).

Full implementation is planned by the end of 2004 and must await court rules, on which there will be consultation early next year.

Bringing the considerations, which are to underpin a decision to adopt into line with those that underlie the CA, was a major part of the 2000 adoption review.

This is achieved in section 1 of the 2002 Act.

The welfare of the child 'throughout his life' is paramount (section 1(2)).

Adoption is literally a lifetime change and this is expressly acknowledged.

Delay is 'likely to be prejudicial' (section 1(3)) and the court must consider its range of powers under this Act and the CA, and not make an order unless to make one is better than not making one (section 1(6)).

The welfare criteria are familiar also (section 1(4)).

They are:

- Wishes and feelings;- Needs;- Effect on child (again as in section 1(2) 'throughout his life') of ceasing to be a member of the original family and becoming adopted;- Age, sex, background and other characteristics;- Harm (with the new definition that the new Act inserts into the CA), and; - Relationship with relatives and relevant others, including likelihood and value of that relationship continuing, ability of relative or other to meet the child's needs, and the wishes and feelings of relatives and relevant others.

One further matter is added by section 1(5) - due consideration must be given to the child's religious persuasion, racial origin and cultural and linguistic background.

Other provisions of the 2002 Act are listed below.

Chapter 2 deals with the structure of the adoption service.

The meat will be added by the regulations, but notable is the extent of the proposed provision of support services by way of an assessment of needs, including those of the child, the natural parents and the adoptive parents, and the extension of support into other areas, for example statutory adoption pay, adoption leave (by way of amendments in the Employment Act 2002) and improvements in some means-tested benefits for adopting parents.

Placement order

Chapter 3 (sections 18-65) is by far the largest part of the CA.

It brings in the new 'placement' order (previously 'freeing' orders).

The declared aim is to move any dispute away from the adoptive parents, and to resolve the 'availability' of the child before the prospective adopters get the child.

Thus the parents should feel less as if they have de facto lost before they have started, and adopters do not participate in the dispute.

Of course, a child may be placed with the consent of the parents, without a placement order.

If the child is younger than six weeks, placement can occur with the voluntary agreement of the parent or guardian, but at six weeks the parents must formally consent, or the local authority obtain a placement order.

A court may only make a placement order (section 21) if the child is the subject of a care order, the court is satisfied that the conditions for making a care order are met, or the child has no parent or guardian.

There is a useful flow chart in the explanatory notes to the Act (visit: www.legislation.hmso.gov.uk).

Chapter 3 also includes sections dealing with ongoing contact (sections 26-27), the preliminaries leading from placement to adoption (sections 42-45), and the making of the order itself (sections 46-51).

The effect of the adoption order itself is unchanged.

Parental responsibility of everyone save the adopters is extinguished, as are any pre-existing CA orders.

Adoption orders may be made in favour of couples and single people older than 21 years.

It will no longer be necessary for parents in parent/step-parent adoption applications to make joint applications to adopt their own children (section 51).

'Couple' (section 144) means a married couple or two people (whether of different gender or the same gender) living as partners in an enduring family relationship.

Chapter 5 (sections 77-82) deals with the adopted children's register and the adoption contact register.

Chapter 6 (sections 83-91) deals with adoptions with a foreign element, both in respect of children coming in and children going out of the UK.

Chapter 7 (sections 92-110) deals with the left-over matters which occur in any piece of major legislation, including restrictions on non-registered society adoptions, and on any payment save for those of a registered society's permitted expenses.

CA amendments

These are contained in part 2 of the new Act (sections 111-122):

- There is an extension to section 4, so that an unmarried father will automatically obtain parental responsibility if he registers the birth with the child's mother.- A step-parent is allowed by the inserted section 4A to obtain parental responsibility by agreement of both (if both have parental responsibility) natural parents or by court order.

This is to be seen as an alternative to step-parent adoption, and the (perhaps) artificiality of a residence order in favour of the parent and step-parent.- Once a child has lived with a local authority foster parent for one year (currently three), an application for a section 8 order can be made (amendment to section 9(3)(c)).- A residence order can continue until the child is 18 (currently 16 save in exceptional circumstances) (amendment to section 12).- The definition of 'harm' is expanded.

This is relevant both to section 31 and to the welfare checklist in section 1(3).

Added are the words 'including, for example, impairment suffered from seeing or hearing the ill- treatment of another'.

The purpose and effect of this change alone are worth an entire article, but in essence, witnessing domestic abuse is made an express criterion for consideration in any CA decision.- The new 'special guardianship order' is added as section 14A-G.

This gives parental responsibility to a non-parent, to be exercised to the exclusion of all others with parental responsibility, save for any other special guardians.

This could benefit foster parents, or a step-parent who effectively brings up the child after the natural parent dies during the child's minority.

It is just short of adoption because no links are severed with the child's (other) parent(s) or extended family.

However, the special guardian has, for the duration of the order, exclusive responsibility for the child.

The order will attract support services and can be varied or discharged.

The court's discretion is governed by the usual section 1 considerations.

So far there have been three of the necessary orders (section 148), and one set of rules amendments.

They bring into force administrative and regulatory powers, relating to the registration of voluntary adoption agencies, adoption support services, matters relating to overseas adoptions, and extend advertising to include electronic modes.

The Adoption (Bringing into the United Kingdom) Regulations 2003 came into force on 1 June 2003.

District Judge Susan Spencer sits at Leeds Combined Court