Adoption and Children Bill

Adoption and Children Bill - continued	House of Commons
PART I, ADOPTION - continued

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	The making of adoption orders
Adoption orders.	38. - (1) An adoption order is an order made by the court on an application under section 42 or 43 giving parental responsibility for a child to the adopters or adopter.
	(2) The making of an adoption order operates to extinguish-
	(a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,
	(b) any order under the 1989 Act, and
	(c) any duty arising by virtue of an agreement or the order of a court to make payments, so far as the payments are in respect of the adopted child's maintenance or upbringing for any period after the making of the order.
	(3) An adoption order-
	(a) does not affect parental responsibility so far as it relates to any period before the making of the order, and
	(b) in the case of an order made on an application under section 43 by a person who is married to a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(c).
	(4) Subsection (2)(c) does not apply to a duty arising by virtue of an agreement-
	(a) which constitutes a trust, or
	(b) which expressly provides that the duty is not to be extinguished by the making of an adoption order.
	(5) An adoption order may be made even if the child to be adopted is already an adopted child.
Conditions for making adoption orders.	39. - (1) An adoption order may not be made unless one of the following three conditions is satisfied; but this section is subject to section 44 (consent).
	(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied-
	(a) that the parent or guardian consents to the making of the adoption order,
	(b) that the parent or guardian has consented under section 21 and does not oppose the making of the adoption order, or
	(c) that the parent's or guardian's consent should be dispensed with.
	(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.
	(4) The second condition is that-
	(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
	(b) either-
	(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
	(ii) the child was placed for adoption under a placement order and the child was at least six weeks old when the placement order was made, and
	(c) no parent or guardian opposes the making of the adoption order.
	(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the leave of the court.
	(6) The third condition is that the child is free for adoption by virtue of an order made-
	(a) in Scotland, under section 18 of the Adoption (Scotland) Act 1978, or
	(b) in Northern Ireland, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987.
	(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change of circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.
	(8) An adoption order may not be made in relation to a person who is or has been married.
	(9) An adoption order may not be made in relation to a person who has attained the age of 19 years.
Restrictions on making adoption orders.	40. - (1) The court may not hear an application for an adoption order in relation to a child, where a previous application to which subsection (2) applies made in relation to the child by the same persons was refused by any court, unless it appears to the court that, because of a change in circumstances or for any other reason, it is proper to hear the application.
	(2) This subsection applies to any application for adoption-
	(a) by an adoption order or a Scottish or Northern Irish adoption order, or
	(b) by an order made in the Isle of Man or any of the Channel Islands.
Applications for adoption.	41. - (1) An application for an adoption order may be made by-
	(a) a married couple, or
	(b) one person,
	but only if it is made under section 42 or 43 and one of the following conditions is met.
	(2) The first condition is that at least one of the spouses (in the case of an application under section 42) or the applicant (in the case of an application under section 43) is domiciled in a part of the British Islands.
	(3) The second condition is that both spouses (in the case of an application under section 42) or the applicant (in the case of an application under section 43) have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.
	(4) An application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.
	(5) References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as "child to be adopted" or "adopted child") include a person who has attained the age of 18 years before the proceedings are concluded.
Adoption by married couple.	42. - (1) An adoption order may be made on the application of a married couple where both spouses have attained the age of 21 years.
	(2) An adoption order may be made on the application of a married couple where-
	(a) one spouse is the mother or the father of the person to be adopted and has attained the age of 18 years, and
	(b) the other spouse has attained the age of 21 years.
Adoption by one person.	43. - (1) An adoption order may be made on the application of one person who has attained the age of 21 years and is not married.
	(2) An adoption order may be made on the application of one person who has attained the age of 21 years and is married if the court is satisfied that-
	(a) the person is married to a parent of the person to be adopted,
	(b) the person's spouse cannot be found,
	(c) the spouses have separated and are living apart, and the separation is likely to be permanent, or
	(d) the person's spouse is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order.
	(3) The requirement of subsections (1) and (2) that the applicant has attained the age of 21 years does not apply if the applicant is the mother or the father of the person to be adopted.
	(4) An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that-
	(a) the other natural parent is dead or cannot be found,
	(b) by virtue of section 28 of the Human Fertilisation and Embryology Act 1990, there is no other parent, or
	(c) there is some other reason justifying the child's not being adopted by both natural parents,
	and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason.

Prepared 15 March 2001