Clause 10: Registered adoption societies: financial support

41. Clause 10 provides for regulating registered adoption societies' provision of financial support. Regulations under subsection (2) deal with who may be given financial support, the way in which it may be given, procedures to be followed, when conditions may be imposed and the consequences of conditions not being met, the procedures for review, variation, and termination of the financial support and information about financial support which should be provided.

Clause 11: Information concerning adoption

42. Clause 11 requires adoption agencies, every magistrates' court, county court and the High Court to give the appropriate Minister statistical and other general information relating to adoption as may be required. It empowers the appropriate Minister to publish abstracts of the particulars sent to him.

Clause 12: Default power of appropriate Minister

43. Clause 12 provides default powers to the appropriate Minister. These powers are exercisable where a local authority have failed, without reasonable excuse, to comply with any of the duties imposed by the Bill. The appropriate Minister may make an order which must contain directions to ensure that the duty is complied with within a period specified in the order. Any directions issued are enforceable by a mandatory order.

Clause 13: Inspection of premises etc. by persons authorised by appropriate Minister

44. Clause 13 provides for a person authorised by the appropriate Minister to inspect any premises where a child is living who has been placed by an adoption agency or in respect of whom a notice of intention to adopt has been given under clause 37. An adoption agency is required to give him information and access to records (in whatever form) relating to the discharge of its functions. Subsection (5) enables the person carrying out the inspection to visit the child and examine the state of the premises and the treatment of the child. Subsection (7) gives a right of entry to premises at any reasonable time. Obstructing a person authorised to inspect premises or records is an offence, punishable by a fine up to level 3 on the standard scale (see subsection (9)).

Clause 14: Inquiries

45. Clause 14 provides that the appropriate Minister may cause an inquiry to be held into any matter connected with the functions of an adoption agency and that he may direct that it is held in private.

Chapter III - Placement for Adoption and Adoption Orders

46. Clauses 15 to 26 introduce new provisions for the placement of children for adoption. An adoption agency may only place a child for adoption with the consent of the parent or guardian (referred to in these notes as the 'parent') or under an order made by the court authorising an agency to place a child with any prospective adopters chosen by them ("a placement order"). Provision is made for who is to have parental responsibility for the child and the other consequences of placement with consent and placement orders. In Chapter III 'parent' means a parent having parental responsibility for the child (see clause 44 (3)(c)).

Clause 15: Placement for adoption by agencies

47. Clause 15 provides that an adoption agency may place a child for adoption with prospective adopters where the parent of the child has consented to the placement or where it has obtained a placement order. Where an agency is authorised to place a child for adoption the child is treated as a looked after child for the purposes of the Children Act 1989. This applies whether or not the child is placed for adoption (subsection (2)). Clause 45 enables regulations to be made modifying the provisions in the Children Act 1989 which relate to looked after children. Under subsection (4) placement has been given an extended meaning. Subsection (5) has the effect that where local authority foster parents give notice of intention to adopt it is not to be treated as a placement for adoption by an adoption agency. It will be open to local authority foster parents to seek formal approval from the local authority as prospective adopters in respect of a child being fostered by them. If they are approved as prospective adopters and the agency leave the child with them as prospective adopters, the placement will be an agency placement.

Clause 16: Placing children with parental consent

48. Clause 16 makes provision for placing children with parental consent. It allows an adoption agency to place a child for adoption where it is satisfied each parent has given consent to placement and that consent has not been withdrawn. Placement with consent may be with prospective adopters identified in the consent or with any prospective adopters who may be chosen by the agency (subsection (1)). Consent to placement with prospective adopters identified in the consent may be combined with consent to the child being subsequently placed for adoption with any prospective adopters who may be chosen by the agency (subsection (2)).

49. Subsection (3) provides that where an application has been made for a care order under the Children Act 1989 and that application is pending, the provisions relating to placement of children with parental consent do not apply. Where the agency is satisfied such a child should be adopted it must apply for a placement order under clause 18(2) (subsection (3)). Clause 16 is subject to the provisions in clause 44 relating to what is meant by consent.

Clause 17: Placement orders

50. Clause 17 defines a placement order. It is an order made by the court authorising an adoption agency to place a child for adoption with any prospective adopters who may be chosen by the agency (subsection (1)). A placement order will continue in force until it is revoked, an adoption order is made in respect of the child or the child marries or reaches 18 (subsection (2)).

Clause 18: Applications for placement orders

51. Clause 18 sets out when an adoption agency must apply for a placement order. An agency must apply for a placement order when the child is placed for adoption or is accommodated by a local authority or voluntary organisation and the parent does not consent to placement for adoption and the agency is satisfied that the child should be adopted (subsection (1)). This might occur for example where the parent has withdrawn consent to placement but the agency remains of the view the child should be adopted.

52. Where care order proceedings under the Children Act 1989 are pending, or the child is subject to a care order but the parent does not consent to the placement of a child for adoption, and the local authority are satisfied that the child should be placed for adoption, they must apply to the court for a placement order (subsection (2)). If the child is subject to a care order and the parent or guardian is prepared to consent to the placement of the child for adoption, the authority have a discretion as to whether to apply for a placement order (subsection (3)).

53. Subsection (4) provides that where an application for a placement order is pending, the child is treated as a looked after child for the purposes of the Children Act 1989 until the application is determined. Subsection (6) enables the court where the application for a placement order is pending and no interim care order has been made to give directions for the child to undergo medical, psychiatric or other assessment. Subsection (7) provides that the court may only make a placement order if it is satisfied that the parent has consented to the child being placed for adoption with any prospective adopters who may be chosen by the agency and has not withdrawn that consent or it is satisfied that the parent's consent should be dispensed with.

54. The application for a placement order is to be made by the appropriate local authority as defined in subsection (8).

Clause 19: Varying placement orders

55. Clause 19 provides that the court can vary a placement order to substitute another adoption agency for the agency authorised to place the child for adoption but the application has to be made by both agencies.

Clause 20: Revoking placement orders

56. Clause 20 makes provision for the revocation of placement orders. An adoption agency may apply to revoke a placement order at any time. Any other person, for example the parent, may apply for the revocation of a placement order with the leave of the court, and if the child is not yet placed for adoption by the agency and a period of one year has elapsed since the placement order was made. Leave cannot be given by the court unless it is satisfied that there has been a change in circumstances since the order was made.

Clause 21: Advance consent to adoption

57. Clause 21 enables a parent who consents to his child being placed for adoption by an adoption agency to give consent at the same time to the making of a future adoption order ('advance consent'). As with placement with consent, advance consent may be to adoption by prospective adopters identified in the consent or by any prospective adopters who may be chosen by the agency. Subsection (3) provides that once consent is given it may not be withdrawn. However, subsection (4) enables a parent who gives advance consent to adoption to give notice to the agency that he wishes to be informed when an application for an adoption order is made. He can then if he wishes apply to the court for leave to oppose the making of an adoption order (see clause 39 (3)).

58. Subsection (7) provides that this section is subject to the provisions in clause 44 relating to what is meant by consent.

Clause 22: Parental responsibility

59. Clause 22 makes provision for who is to have parental responsibility where an agency is authorised to place a child for adoption under clause 16 or where a placement order is in force. Parental responsibility for the child is given to the agency (subsection (2)) and while the child is placed with prospective adopters, parental responsibility is given to them (subsection (3)).

60. Under subsection (4) it is for the agency to determine the extent to which the parent or the prospective adopters exercise parental responsibility for a child.

Clause 23: Contact

61. Ideally contact should be agreed informally between the agency, the prospective adopters and the parent, and agencies will be given guidance to this effect. However, agreement may not be possible and clauses 23 and 24 make freestanding provision in relation to contact in cases where an adoption agency is authorised to place a child for adoption under clause 16 or a placement order. Subsection (1) provides that where an adoption agency is authorised to place a child for adoption, any contact order under section 8 of the Children Act 1989 or an order under section 34 of that Act (parental contact with children in care) ceases to have effect. An application may be made to the court for an order for contact. The application may be made by the child or the agency or the parent or other persons who are identified in subsection (3). On an application the court may make such provision as it considers appropriate for contact between the child and any other person.

Clause 24: Contact: supplementary

62. Clause 24 makes supplemental provision in relation to contact. There may be cases where it is inappropriate for contact to take place. Subsection (2) enables the agency to refuse contact for a period of not more than 7 days if it is satisfied that it is appropriate to do so in order to safeguard the child's welfare. Regulations may set out the circumstances in which the terms of any order made under clause 23 may be departed from.

63. Subsection (4) imposes a duty on the court making a placement order to consider the arrangements the agency has made or proposes to make in relation to contact and under subsection (5) the court may impose any conditions on contact as it thinks fit.

Clauses 25 and 26: Further consequences of placement and placement orders

64. Clauses 25 and 26 make further provision as to the consequences of placement. Where an adoption agency is authorised to place a child for adoption under clause 16, a parent cannot apply for a residence order (clause 25(1)).

65. If an agency is authorised to place a child for adoption (whether or not the child is placed) a person cannot cause the child to be known by a new surname or remove him from the United Kingdom except with the leave of the court or if the parent gives consent. Prospective adopters with whom a child is placed cannot call the child by a different surname unless these conditions are satisfied. Prospective adopters may take him out of the United Kingdom on holiday for up to a month (clause 25(2) to (4)).

66. Clause 26 makes further provision in relation to placement orders. Where a placement order is made in respect of a child and either the child is subject to a care order or the court makes a care order in the same proceedings, the care order is suspended during the period when the placement order is in force. On the making of a placement order, any order mentioned in section 8(1) of the Children Act 1989 (for example, residence orders) and any supervision order cease to have effect. Furthermore, where a placement order is in force a residence order and a supervision order cannot be made in respect of that child.

67. Removal provisions - clauses 27 to 33 make provision in relation to the removal of children who are or may be placed for adoption by adoption agencies. Clauses 27 to 32 apply whether or not the child in question is in England or Wales.

Clause 27: Placements under section 16: general prohibition on removal

68. Clause 27 applies to placements under clause 16 (placements with parental consent) and imposes general restrictions on removal. Clause 27 is subject to clauses 28 and 29. Where a child is placed with prospective adopters under clause 16 it is an offence for a person other than the agency to remove the child from that placement (subsections (1) and (6)). Subsection (1) applies even if the parent has withdrawn his consent to placement. Where an agency has the power to place a child for adoption but the child is not yet placed and is being provided with accommodation by an agency in, for example, a foster placement or a children's home, it is an offence for a person other than the agency to remove the child from that accommodation (subsections (2) and (6)). Subsection (2) applies even if the parent has withdrawn his consent to placement. If the agency remains of the view that the child should be adopted it must apply for a placement order under clause 18. The child may not be removed from the accommodation pending the determination of that application. If the agency is of the view that the child should not be adopted or it has applied for a placement order and it has been refused, the parent may ask for the return of his child and the agency must return the child to the parent within 14 days (subsection (3)).

69. Subsection (6) provides that a person who removes the child in breach of subsection (1) or (2) is liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding level 5 on the standard scale or both.

Clause 28: Section 27: exception for recovery by parent etc. where agency not opposed

70. Clause 28 applies where a child is placed with prospective adopters, the parent wants to remove the child and the agency agree the child should be returned to his parent (subsection (1)). If the prospective adopters with whom the child is placed agree to return the child, they must return the child to the agency who must then return the child to his parent (subsections (2) and (5)).

71. If the prospective adopters do not agree to return the child, the agency must give notice to them that the parent wants to remove the child ("notice of removal") and the prospective adopters have to return the child to the agency within 14 days (subsection (3)). The agency must then return the child to his parent (subsection (5)). If the prospective adopters do not return the child, they commit an offence and are liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale or both (subsection (4)).

72. If before notice of removal is given, an application for an adoption order in England and Wales (or Scotland or Northern Ireland) or a residence order or for leave to apply for a residence order was made in respect of the child, and has not been disposed of, the prospective adopters do not have to return the child unless the court makes an order to that effect (subsection (6)).

73. If the agency remains of the view that the child should be adopted it must apply for a placement order (see subsection (1) and clause 18). The child would remain in the placement, in spite of the lapse of authority and clause 27(1) would prevent the removal of that child from that placement.

Clause 29: Section 27: exception for recovery by parent etc. where application for placement order refused

74. Clause 29 provides that where the parent wishes to remove a child placed for adoption under clause 16 and the agency's application for a placement order has been refused, the prospective adopters must return the child to the agency on the date set by the court and as soon as they do, the child must be returned to his parent. If the prospective adopters do not do so, they commit an offence and are liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale or both.

Clause 30: Placement orders: removal by parents etc

75. Clause 30 applies to placement orders and imposes restrictions on removal. Where a placement order is in force, it is an offence, punishable as mentioned in paragraph 77, for a person (other than an agency) to remove the child from the prospective adopters or accommodation provided by the agency (subsection (1) and (4)).

76. Where a placement order has been revoked but the child remains with the prospective adopters or in accommodation provided by the agency, it is also an offence, punishable as mentioned in paragraph 77 for a person (other than the agency) to remove the child from the prospective adopters or the accommodation provided by the agency (subsection (1) and (4)). It will be for the court when they revoke a placement order to determine whether the child is to remain with the prospective adopters or to be returned to the parent (subsection (2)).

77. Subsections (4) and (5) provide that a person who removes a child, or fails to return a child, is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale or both.

Clause 31: Removal in other cases

78. Clause 31 applies in cases where the prospective adopters want to return the child or the adoption agency has decided that the child should not remain with the prospective adopters. In the first case the prospective adopters must give notice to the agency that they want to return the child and the agency has to collect the child (subsection (1)). The agency should also tell the child's parent so he may consider his position. In the second case, the agency must give the prospective adopters notice that it does not want the child to remain with them and the prospective adopters must return the child within 7 days. Again, the agency must inform the child's parent (subsection (2)). If the prospective adopters fail to return the child, they commit an offence and are liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding level 5 of the standard scale or both (subsection (4)).

79. If, before notice is given by the agency, an application for an adoption order, residence order, or leave to apply for a residence order was made and that application has not been disposed of, the prospective adopters are not required to return the child to the agency unless the court makes an order to that effect.

Clause 32: Restrictions on removal

80. Clause 32 applies in non-agency cases i.e. where the child's home is with persons with whom the child is not placed for adoption by an adoption agency. The effect of subsection (2) is that, if an adoption order is pending, a child may only be removed in the circumstances set out in subsection (7). The effect of subsections (3) and (4) is that in cases where notice of intention to adopt has been given and is not to be disregarded under subsection (5), a child may only be removed in the circumstances set out in subsection (7) or subsection (4)(a) if that provision applies. Subsection (6) applies where a child is being provided with accommodation by a local authority (under the Children Act 1989) or a voluntary organisation and they then decide that adoption is the plan for the child but they have no authority to place the child for adoption because the parent does not agree. The adoption agency will need to apply for a placement order in those circumstances. (The other removal provisions in clauses 27 to 31 do not apply because the child has not been placed for adoption.) Subsection (7) provides that the circumstances referred to in subsections (2) to (4) and (6) are that the court has given leave for the child to be removed by that person, the child is removed by a local authority or other person in exercise of powers for example in the Children Act 1989 (other than section 20(8) of that Act) or the child is arrested.

81. Where a parent may remove his child, the persons with whom the child has his home must return the child to the parent at once. A person who fails to comply with this provision or removes a child in breach of clause 32 is guilty of an offence and is liable on summary conviction to imprisonment to a term not exceeding 3 months, or a fine not exceeding level 5 on the standard scale or both.

Clause 33: Recovery orders

82. Clause 33 makes provision for what is to happen where a child is removed, or there are reasonable grounds for believing that a person intends to remove a child, in breach of clauses 27 to 32.

83. In those circumstances an application may be made to the court and the court may by order -

• direct any person who has taken a child to produce him on request to an authorised person,

• authorise the removal of the child by an authorised person,

• require anyone who has information as to the child's whereabouts to disclose that information to a constable or officer of the court, or

• authorise a constable to enter any premises specified in the order (if there are reasonable grounds for believing the child is there) and search for the child, using reasonable force if necessary.

84.     Authorised persons are any person named by the court, any constable, or any person who is authorised to exercise any power under the order by the adoption agency (subsections (2) to (4)).

85. If a person intentionally obstructs an authorised person exercising the power of removal he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

86. A person who is required to disclose information must disclose that information even though it might amount to evidence that he had committed an offence. However, in any criminal proceedings in which the person is charged with an offence (except one which is excluded in subsection (8) e.g. offences under section (2) or (5) of the Perjury Act 1911) the prosecution cannot adduce evidence relating to the information provided or ask questions about it, unless it is raised by or on behalf of that person.

87. Subsection (9) makes provision for an order made in England and Wales under clause 33 to have effect in Scotland and Northern Ireland as if it were an order of the courts there.

Clause 34: Child to live with adopters before order is made

88. Clause 34 sets out the period a child must live with the applicants before they can apply for an adoption order. Where the child is placed for adoption by an adoption agency (or pursuant to an order of the High Court) an application for an adoption order may not be made unless the child has had his home with the applicants at all times in the 10 weeks before the application is made. In any other case, the child is required to have had his home with the prospective adopters for a period of at least 6 months before the application may be made (subsections (1) and (2)).

89. Furthermore, the court may not make an adoption order unless it is satisfied the agency, or the local authority in non-agency cases, have had sufficient opportunities to see the child with the applicants in their home (subsection (3)).

Clause 35: Reports where child placed by agency

90. The adoption agency which places the child for adoption is responsible for preparing for the court a report on the suitability of the applicants and any other matters relevant to the operation of clause 1 and for assisting the court as it may direct (clause 35). The report should in particular address the matters in the welfare checklist.

Clause 36: Conditions for applying in non-agency cases

91. Clause 36 sets out the conditions which must be satisfied before an application for an adoption order may be made in non-agency cases. Where the applicants are local authority foster parents, the child's home must have been with them for a period of not less than one year, ending with the application. In any other case the child must have had his home with the applicants for not less than three years (whether continuous or not) during the period of five years ending with the application. These conditions do not apply if the court gives leave to make the application or to a prospective adopter who is a step-parent or where the child is placed for adoption in pursuance of an order of the High Court.

Clause 37: Notification to local authority of applications in non-agency cases

92. Clause 37 provides that an adoption order may not be made in respect of a child in a non-agency case unless the proposed adopters have given notice of intention to adopt to their local authority (subsection (2)). The notice must be given not more than two years or less than three months before the application is made for the adoption order (subsection (3)). Where the local authority receive a notice of intention to adopt they must investigate and are responsible for preparing a report for the court which includes the suitability of the proposed adopters and any other matters relevant to the operation of section (1) (subsections (4) and (5)). There is a restriction in the case of local authority foster parents. Unless the court gives leave they may not give notice of intention to adopt unless the child has had his home with them for a period of not less than one year ending with the giving of notice.

Clause 38: Adoption orders

93. Clause 38 provides for the effect of an adoption order. It gives parental responsibility for a child to the adopters. It extinguishes the birth parent's parental responsibility, under any order of the Children Act 1989 (which includes residence orders) and any duty in an agreement or an order of a court to make maintenance payments (subsection (2)). A step-parent adoption does not affect the parental responsibility of the parent of the adopted child or any duties of that parent (subsection (3)). Subsection (5) provides that an adoption order can be made even if the child to be adopted is already an adopted child.

94. Once an adoption order is made, any liabilities of the birth parent under the Child Support Act 1991 will cease to have effect. A parent for the purposes of that Act is defined as any person who is in law the mother or father of the child (see section 54(1) of that Act). Once a child is adopted the birth parent ceases to be the parent of the child, and the adoptive parents become the parents of the child for the purposes of that Act. On adoption any existing maintenance assessment will cease to have effect because the birth parent ceases to be a parent under that Act. On adoption a court order (if any) for the child's maintenance will cease by virtue of subsection 34(2)(c).