Clause 39: Conditions for making adoption orders

95. Clause 39 is about the conditions which must be satisfied before an adoption order can be made. One of three conditions must be satisfied. The first condition is that the court is satisfied that the parent consents to the making of the adoption order or has given advance consent to the making of the adoption order under clause 21 or that the parent's consent should be dispensed with. Where the parent has given advance consent to the adoption under clause 21 he may only oppose the making of the adoption order with the leave of the court.

96. The second condition is that the child has been placed for adoption by an adoption agency with the prospective adopters who are applying for the order and either the child was placed for adoption with the consent of the parent under clause 16 or under a placement order and the parent does not oppose the making of the adoption order. The parent may only oppose the making of the order with the leave of the court.

97. Subsection (7) provides that the court cannot give leave under subsection (3) or (5) unless it is satisfied that there has been a change of circumstances since the consent was given or the placement order was made. For example, in a case where a placement order was made on the grounds of the child's welfare because of parental drug or alcohol abuse, such a change of circumstances might include proven and successful rehabilitation. Where a mother consented to placement before her baby was 6 weeks old, and did not subsequently confirm that consent, she does not need the leave of the court to oppose the adoption order.

98. The third condition is that the child is free for adoption by virtue of a freeing order made in England and Wales, Scotland and or Northern Ireland. The provisions in the Adoption Act 1976 relating to freeing are repealed by the Bill.

99. An adoption order may not be made in relation to a person who is married or who has attained the age of 19 (subsections (8) and (9)).

Clause 40: Restrictions on making adoption orders

100. Clause 40 provides that a court may not hear an application for an adoption order where a previous application by the same adopters in respect of the same child was refused, unless it appears to the court that there is a change of circumstances or other reason which justifies the second application.

Clause 41: Applications for adoption

101. Clause 41 provides that an application for an adoption order may be made by a married couple or one person but only if it is made under clause 42 or 43 and the condition as to domicile or habitual residence is satisfied. An application for an adoption order may only be made if the person to be adopted has not reached 18 by the date of the application.

Clause 42: Adoption by married couple

102. Under clause 42 an application for an adoption order by a married couple may only be made where both spouses have reached 21. However, where one spouse is the mother or father of a child to be adopted, an application may be made if that spouse is 18 or over and the other spouse is 21 or over.

Clause 43: Adoption by one person

103. Clause 43 provides that an application may be made by one person who is 21 and is not married. In certain circumstances, an adoption application may be made by a single person who is married. For example, a step-parent may adopt the child of the person he is married to. This means that the parent is no longer required to make a joint application to adopt his own child with the step-parent as is presently the case.

Clause 44: Parental etc. consent

104. Clause 44 applies generally to placement and adoption. Any consent given by the mother of a child to the making of an adoption order is ineffective if it is given less than 6 weeks after the child's birth (subsection (1)). This reflects the European Convention on the Adoption of Children (Strasbourg 24 April 1967). Although a mother may not consent to the making of the adoption order until her child is at least 6 weeks old, she may consent to placement for adoption at any time after the child is born.

105. Dispensing with the parent's consent is relevant in relation to the making of placement orders and adoption orders. Subsection (2) provides that the court cannot dispense with the consent of the parent to the child being placed for adoption or to the making of an adoption order in respect of the child unless it is satisfied that the parent cannot be found or is incapable of giving consent or the welfare of the child requires the consent to be dispensed with. Clause 1 applies to a decision about whether or not to dispense with the consent of the parent to a placement order or an adoption order. The child's interests are paramount and the welfare check list in clause 1(4) recognises the importance of the child's relationship with his parents and their ability and willingness to provide him with a secure home and otherwise to meet his needs.

106. Subsection (3)(a) and (b) defines what is meant by consent for the purposes of Chapter III. Consent means consent which is given freely, unconditionally and with full understanding of what is involved. A person can give consent to adoption without knowing the identity of the persons in whose favour the adoption order will be made. The form of consent is to be prescribed in regulations in a way which allows the parent to understand the position clearly. The regulations will also set out the effect of consent (subsection (3)(a) and (b)). Subsections (4) and (5) deal with the situation where an unmarried mother gives consent to placement under clause 16 and subsequently the child's father acquires parental responsibility for the child, by marriage or a parental responsibility agreement or order under the Children Act 1989. Without subsection (5) authority for the placement would lapse immediately. The father would, of course, be able to withdraw consent in the case of a placement for adoption which is the same position the mother is in. Where the mother has given advance consent to adoption, the father would be given notice of the application for an adoption order and would be able to oppose, with the leave of the court, the making of the order.

Clause 45: Modification of 1989 Act in relation to adoption

107. A child who is authorised to be placed for adoption by a local authority is to be treated as looked after by the authority whether or not he is actually placed for adoption. The local authority are to have a continuing responsibility for managing and overseeing the child's future until an adoption order is made. The policy is to disapply certain regulations made under the Children Act 1989 in relation to this group of children but to impose similar requirements in relation to adoptive placements in new regulations governing the exercise of functions of adoption agencies. However, certain provisions in the Children Act 1989 will need to be disapplied where a local authority are authorised to place a child for adoption, whether or not the child is placed. Clause 45 enables regulations to be made to this effect. In relation to, for example, section 22(4)(b), (c) and (d) and 5(b) it may not be appropriate (whether the child is placed or not) for an authority to be under a duty to consult the child's parent or other relatives before taking any decision with respect to the child so the duty will need to be disapplied. There could be cases where it might be appropriate but the local authority are to consider this on a case by case basis. Similarly, where a child is placed for adoption with prospective adopters, the authority are to be under an obligation to ascertain and take the views of the prospective adopters with whom the child is placed before making a decision with respect to that child. The regulations enable paragraph 15 of Schedule 2 of the Children Act 1989 to be disapplied. That provides that a local authority looking after a child must endeavour to promote contact between the child and his parent unless it is not reasonably practicable or consistent with the child's welfare. This duty is not to apply where a local authority are authorised to place a child for adoption. Guidance will be given to local authorities to deal with the issue of contact on a case by case basis and the new provisions in clauses 23 and 24 will enable a parent, for example, to make an application for contact with his child.

Clause 46: Revocation of adoptions on legitimation

108. Clause 46 provides that an adoption order may, on application, be revoked in circumstances where a child is legitimised by the marriage of his natural parents to each other. This replaces section 52 of the Adoption Act 1976.

109. Clauses 47, 48 and 49 deal with the information that adoption agencies must keep in relation to the adoption of a child, the information that they must release to adoptive parents and to adopted adults on request, the information that courts must release to adopted adults on request and the information that adoption agencies may release to adopted adults, adoptive parents and others at their discretion.

Clause 47: Information given to adopters

110. Subsection (1) of clause 47 gives the appropriate Minister power to make regulations in relation to matters listed in subsection (1)(a) to (d).

111. Subsection (1)(a) enables him to prescribe the information that adoption agencies must keep and subsection (1)(b) enables him to prescribe how that information is to be kept.

112. Subsection (1)(c) enables the appropriate Minister to prescribe the circumstances where an adoption agency may transfer information to another agency, for example when it would be in the best interests of the child, and the circumstances where an adoption agency must transfer information to another adoption agency, for example where it is ceasing to operate.

113. Subsection (1)(d) enables him to prescribe the circumstances in which an adoption agency can give information to a person who is not the adopter, the adopted person or someone whom the adopted person has authorised to act on his behalf.

114. Under subsection (2) an adoption agency must give the adopters as soon as practicable after the making of the adoption order such information as is to be prescribed in regulations. This information is likely to include personal information about the adopted person and information about his background, such as birth details, details of his early development and medical history and non-identifying information about the birth family. In certain circumstances it may not be appropriate for all the information prescribed under subsection (2) to be given to the adoptive parents. Regulations under subsection (3) will therefore give agencies the discretion to withhold information in such circumstances.

115. Subsection (4) allows an adoption agency, if it considers that it is appropriate to do so, to provide any other information to the adopters.

116. Subsection (5) enables the appropriate Minister to make regulations to oblige an adoption agency to provide the information given to the adopters (and in cases where some information has been withheld that information as well) to the court which made the adoption order.

Clause 48: Information given to adopted person

117. Clause 48 provides for information to be given to an adopted person. When an adopted person attains the age of 18 he has the right to obtain the information set out in subsection (1)(a) to (c).

118. The information included in subsection (1)(a) to (c) is the information that the adoptive parents received at the time of the adoption order under clause 47(2), including any information withheld from the adoptive parents at the adoption agency's discretion, the information that may be given to the court under clause 47(5) and a copy of documents or orders from the court that made the adoption order. The categories of document to be provided by the court will be prescribed in rules.

119. Under subsection (2) an adopted person can authorise someone else to exercise this right on his behalf.

120. Subsection (3) states that this right is exercisable in accordance with regulations.

121. Subsection (4) allows an adoption agency, if it considers that it is appropriate to do so, to provide any other information to the adopted person or his authorised representative.

122. Under subsection (5), before any information is released to the adopted person or his authorised representative the adoption agency or court which is to provide the information must inform that person of the counselling services available to the adopted person.

Clause 49: Information about adopted child: supplemental

123. Clause 49 deals with supplemental issues. Subsection (1) prohibits an adoption agency or court from providing any information under these clauses where someone can be identified from that information without the consent of that individual. However subsection (1) does not apply where the adopted person could be identified. This is because there will be cases where, for example, an adopted person is too young to give consent. Subsection (2) therefore provides for regulations to provide when such information is not to be given without the consent of the adopted person, or, in certain circumstances, consent given on his behalf.

124. Subsection (3) states that subsections (1) and (2) do not apply where an adoption agency supplies information to registered medical practitioners. This is intended to allow a medical practitioner to obtain information about the adopted person's medical history necessary for treatment in circumstances where the adopted person is unable to give consent.

125. Subsection (4) provides that these provisions do not affect the exercise of a person's rights under the Data Protection Act 1998 to access personal information. Relevant parts of the Data Protection (Miscellaneous Subject Access Exemptions) Order 2000 and Data Protection (Miscellaneous Subject Access Exemptions) (Amendment) Order 2000 will be revoked to allow for this right to be exercised when an agency uses its discretion to refuse to give information under clause 47 or 48.

126. The meaning of personal information is set out in subsection (5) and is based on the definition in section 1(1) of the 1998 Act.

127. Subsections (6) and (7) define other terms used in these clauses.

Chapter IV - Status of Adopted Children

128.     Chapter IV provides for the status of adopted children. It replaces with minor amendments the provisions in Part IV of the Adoption Act 1976.

Clause 50: Meaning of adoption in Chapter IV

129.     Clause 50 replaces section 38 of the Adoption Act 1976. Unlike the 1976 Act this clause extends to adoptions effected under the law of a Hague convention country (see paragraph 162 below). It sets out the meaning of "adoption" in this Chapter of the Bill; adoption means adoption by adoption orders made in the United Kingdom, the Channel Islands, the Isle of Man, Convention adoptions, overseas adoptions or adoptions recognised by the law of England and Wales and effected under the law of any other country.

Clause 51: Status conferred by adoption

130. Clause 51 replaces section 39 of the Adoption Act 1976. It determines the status of an adopted child. Subsection (1)(a) provides that where a person is adopted by a married couple he is to be treated in law as if he was born as a child of that marriage. Subsection (1)(b) is a change to section 39 of the Adoption Act 1976 and provides that where a person is adopted by a person married to his parent (a step-parent adoption), he is to be treated as if he had been born to the marriage of that parent and the adopter. Whether the adopted person was born after the marriage occurred is irrelevant to both subsections (1) (a) and (1) (b).

131. Subsection (1)(c) provides that in any other case an adopted person is to be treated in law as if he had been born to the adopter in marriage but he is not to be treated as being a child of any actual marriage of the adopter.

132. Subsection (2) (a) provides that in a step-parent adoption the adopted person is only to be treated in law as the child of the adopter and the parent to whom the adopter is married. In any other circumstances subsection (2)(b) provides that an adopted person is to be treated only as the child of the adopter or adopters. However where the adopter is both a sole adopter and the adopted person's natural parent, under subsection (3) this is to have no effect with respect to anything dependant on the relationship to that parent, for example entitlement to property.

133. Subsection (4) provides that this clause has effect from the date of an adoption order or, if the adoption order precedes the commencement of the Bill, the date of the commencement of this provision.

134. Subsection (5) confirms that subject to the other provisions of the Chapter and Schedule 3 to the Bill (Transitional Provisions and Savings) this clause applies to the interpretation of enactments or instruments passed both before and after an adoption order. It also has effect on things done after the adoption order has been made or on or after the commencement of the clause (whichever is the later).

135. The declaration in section 39(4) of the Adoption Act 1976 has not been re-enacted as it is implicit from the other provisions in the clause that an adopted child is not illegitimate.

Clause 52: Adoptive relatives

136. Clause 52 replaces section 41 of the Adoption Act 1976. It enables a relationship that exists by virtue of clause 51 to be described as an adoptive relationship. A male adopter may be referred to as the adoptive father and a female adopter as the adoptive mother. This principle is also extended to any other relative in an adoptive relationship.

Clause 53: Rules of interpretation for instruments concerning property

137. Clause 53 replaces section 42 of the Adoption Act 1976. It sets out the rules of interpretation for any instrument concerning the disposition of property. These rules are subject to any contrary indication and to Schedule 3 of the Bill.

138. Subsection (2) is concerned with the situation where a disposition depends on the date of birth of a child or children of adoptive parents. For the purposes of the disposition the adopted person is to be treated as having been born on the date of the adoption order. Where two or more people have been adopted on the same date they are to be treated as if they had both been born on that date but in the order of their actual births.

139. Subsection (3) gives examples of phrases in wills on which subsection (2) can operate.

140. Subsection (4) allows an adopted person to retain certain interests vested in him before his adoption.

141. Subsection (5) is a change to the Adoption Act 1976 and gives the court a discretion to allow an adopted person to retain a contingent interest (or part of it) in his birth family's property after adoption.

142. Subsection (6) provides that where it is necessary to determine whether a woman can have a child it is to be presumed that when she has attained 55 years of age she will not adopt a child after the execution of the instrument and if she does so that child will not be treated either as her child or the child of her spouse for the purposes of that instrument.

Clause 54: Dispositions depending on date of birth

143. Clause 54 replaces section 43 of the Adoption Act 1976. Subsection (1) protects a child's entitlement to property where he is born illegitimate and adopted by one of his natural parents as the sole adoptive parent. The date of his birth rather than the date of his adoption is taken into account. Subsection (2) sets out examples of when this might apply.

Clause 55: Property devolving with peerages etc

144. Clause 55 replaces section 44 of the Adoption Act 1976. It provides that adoption does not affect the descent of any peerage or dignity or title of honour or the devolution of any property devolving with such titles. Thus, unless there is a contrary intention expressed in the instrument, an adopted person cannot inherit such a title or property.

Clause 56: Protection of trustees and personal representatives

145. Clause 56 replaces section 45 of the Adoption Act 1976. It provides for the protection of trustees or personal representatives who convey or distribute property in ignorance of the making or revocation of an adoption order.

Clause 57: Meaning of 'disposition'

146. Clause 57 replaces section 46 of the Adoption Act 1976. Subsection (1) defines "disposition" and "power of appointment " for the purposes of this Chapter. Subsection (2) confirms that the provisions of this Chapter apply equally to an oral disposition as to a written one. Subsection (3) sets out that for the purposes of this Chapter, the date of death of the testator is the date a will or codicil is treated as being made. Subsection (4) provides that for the purposes of this Chapter the provisions of the law of intestate succession are to be treated as if they are have been included in an instrument that the deceased executed immediately before his death when he was of full capacity.

Clause 58: Miscellaneous enactments

147. Clause 58 replaces section 47 of the Adoption Act 1976. Subsection (1) provides that the general principle of clause 51 (that an adopted person is to be treated as if he had been born as a child of the adopter or adopters) is not to apply to the law relating to marriage or to incest and for these purposes an adopted person remains part of his natural family. However, an adopted person cannot marry his adoptive parent as this falls within the restrictions set out in the table of kindred and affinity in Schedule 1 to the Marriage Act 1949. Otherwise there are no restrictions on marriage within an adoptive family.

148. Subsection (2) lists other enactments which deal with questions of nationality and immigration and to which this principle is not to apply.

Clause 59: Pensions

149. Clause 59 replaces section 48. It provides that clause 51(2), (the rule that an adopted child is to be treated only as the child of the adopters or adopter unless the adopter is married to the adopted person's parent when the adopted person is to be treated only as the child of the adopter and that parent), does not affect an adopted person's entitlement to a pension payable to or for his benefit at the time of his adoption.

Clause 60: Insurance

150. Clause 60 replaces section 49 of the Adoption Act 1976. Subsection (1) provides that any rights and liabilities under any insurance policy that a natural parent has effected for the payment on the death of his child of funeral expenses are transferred by virtue of the adoption of that child to the adoptive parents. The adopters are to be treated as if they took out the policy. Subsection (2) makes a slight modification to the 1976 Act and makes clear that references in subsection (1) to adoptive parents include the adopter and the person to whom the adopter is married in step-parent adoptions

Chapter V - The Registers

151. Chapter V deals with registration issues surrounding adoption and the duties placed upon the Registrar General.

Clause 61: Adopted Children Register

152. Clause 61 places a duty upon the Registrar General to continue to maintain the Adopted Children Register and provides for entries to be made in the register. The Registrar General is to continue to have a duty to maintain an index of the register. Any person may search the register and have a certified copy of any entry in the register, on payment of a prescribed fee.

Clause 62: Other registers and books

153. Clause 62 places a duty on the Registrar General to maintain a record linking any entry in the registers of live-births marked "Adopted" and any corresponding entry in the Adopted Children Register. Public access to such records is prohibited except where a court order has been obtained or the provisions of clause 63 are complied with.

Clause 63: Disclosure of birth records of adopted children

154. Clause 63 places a duty upon the Registrar General to supply an adopted person, on application and subject to certain conditions including payment of a fee, with information to enable him to obtain a certified copy of the record of his birth. Subsection (2) provides that where the adopted person is under 18 and intends to be married the Registrar General must inform the applicant whether or not the person whom he intends to marry is within the prohibited degrees of relationship for the purposes of the Marriage Act 1949.

Clause 64: Disclosure of birth records: counselling

155. Clause 64 places a duty upon the Registrar General to inform an adopted person who is seeking information to enable him to apply for a certified copy of his birth records, about the availability of counselling services. Subsection (5) provides that information may not be disclosed to a person who was adopted before 12 November 1975 unless he has received counselling services. Where a request is made, counselling must be provided by the Registrar General, any local authority or a registered adoption society. The Registrar General must pass relevant information to the body carrying out the counselling pursuant to subsection (4). Subsection (6) applies where the applicant is not living in the United Kingdom and enables the Registrar General to pass relevant information to a suitable overseas organisation which has agreed to provide counselling to the applicant.

Clause 65: Adoption Contact Register

156. Clause 65 places a duty on the Registrar General to continue to maintain the Adoption Contact Register. It describes the operation of the register and conditions of entry to either Part I or Part II including payment of a prescribed fee. It permits an adopted person or relative of such a person to record a wish for contact as well as no contact. The adopted person may also specify that he only wishes to make contact with certain relatives.

157. Subsection (4) enables the Registrar General to inform the adopted person, before making an entry in the register or accepting a fee for so doing, whether there is an entry in Part II of the register indicating that a relative does not wish to make contact with the adopted person. Subsection (7) makes a similar provision to subsection (4) in respect of a request for an entry to be made by any relative of the adopted person.

Clause 66: Adoption Contact Register: disclosure

158. Clause 66 places a duty on the Registrar General to disclose to an adopted person whose name is entered in Part I of the Adoption Contact Register details of any relative entered in Part II of the register who wishes to make contact. The register is not open to public inspection or search. Subsection (4) provides that the Registrar General may only release information contained in the register in accordance with this clause or clause 65.

Clause 67: Adoption Contact Register: supplementary

159. Clause 67 makes supplementary provision in relation to the Adoption Contact Register. It enables the Registrar General to make certain amendments to entries made in the Adoption Contact Register before clause 65 comes into force. It also enables the Registrar General to remove entries upon request, to provide the form of notice under clause 65 and provides for payment of prescribed fees.