House of Commons - Explanatory Note
ADOPTION AND CHILDREN BILL - continued          House of Commons

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Chapter VI - Adoptions with a Foreign Element

160.     The Adoption (Intercountry Aspects) Act 1999 ("the 1999 Act") made provision for intercountry adoption, including in particular provision enabling the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption concluded at the Hague on 29 May 1993 ("the Convention") to be ratified in England and Wales and Scotland. The 1999 Act applies to England and Wales and to Scotland and amends both the Adoption Act 1976 and the Adoption (Scotland) Act 1978. Sections 1 (power to make regulations giving effect to the Convention), 2 (Central Authorities and accredited bodies) and 7 (amendments to the British Nationality Act 1981) and Schedule 1 (which sets out the text of the Convention so far as material) are to remain but the other provisions in so far as they apply to England and Wales and amend the Adoption Act 1976 have been incorporated into this Bill. Clause 107(1) defines a Convention adoption order as an adoption order which by virtue of regulations made under section 1 of the 1999 Act, is to be made as a Convention adoption order. The regulations which are to be made under section 1 of the 1999 Act will apply, with or without modification, the provisions of this Bill, for example the conditions which must be satisfied before an application for a Convention adoption order may be made. Convention adoptions made in a country outside the British Islands are recognised, see clause 50(1). This Chapter makes other specific provision in relation to intercountry adoption.

Clause 68: Modification of section 51 for Convention adoptions

161.     Clause 68 provides that where the High Court, on application, is satisfied that the conditions set out in subsection (2) are met, it may direct that clause 51(2) (which provides for the status conferred by adoption) does not apply or does not apply to any extent which may be specified in the direction. Section 39 of the Adoption Act 1976 as amended by section 4(3) of the 1999 Act made similar provision. The reason for this provision is as follows. Adoption law of the United Kingdom recognises only one type of adoption, which is full adoption, and this creates a new and irrevocable legal relationship between the child and adoptive parents which severs all legal ties between the child and his birth parents. Section 51(2) provides that a child adopted in England and Wales is to be treated in law as not being the child of any person other than the adopters. In some countries, however, certain forms of adoption do not have the effect of totally severing all ties from the birth parents and these are known as simple adoptions.

162. Article 26 of the Hague Convention provides for the recognition of both full and simple adoptions. Article 27 of the Hague Convention allows a receiving State to convert a simple adoption into a full adoption if its law so permits and provided the birth parents and relevant parties under Article 4 of the Hague Convention have given their consent to a full adoption. Where the receiving State is England and Wales, the Central Authority will ensure that in all cases the birth parents are informed of the effects of a simple adoption in England and Wales and seek to obtain their consent to a full adoption prior to a Convention adoption being made in a country outside the British Islands or a Convention adoption order being made here. Where the receiving State is not England and Wales, it is possible that the child may be brought to this country in circumstances where simple adoptions are recognised, both in the State of origin and the receiving State and so no consent to full adoption has been given. In those cases the adoption will still be treated as a full adoption by operation of law, but if any issue of status arises where it is felt it would be more favourable to the child to treat the adoption otherwise than as a full adoption, an application may be made to the High Court.

Clause 69: Overseas adoptions

163.     Clause 69 provides that the Secretary of State may by order specify what are to be overseas adoptions. An overseas adoption must be one that appears to the Secretary of State to be effected under the law of any country or territory outside the British Islands but does not include Convention adoptions. This provision re-enacts with amendment section 72(2) of the Adoption Act 1976.

Clause 70: Restriction on bringing children into the United Kingdom for adoption

164.     Clause 70 re-enacts section 56A of the 1976 Act (as inserted by section 14 of the 1999 Act). This provision makes it a criminal offence for a person habitually resident in the British Islands to bring to the United Kingdom, for the purpose of adoption, a child who is habitually resident outside those Islands, unless he complies with requirements to be prescribed by regulations. These requirements may apply either prior to the child's arrival or within a period to be prescribed and following the child's arrival. A person guilty of an offence is 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 71: Transfer of parental responsibility prior to adoption abroad

165. Clause 71 provides that a court may make an order for the transfer of parental responsibility for a child to prospective adopters who are not domiciled or habitually resident in England or Wales but who intend to adopt the child outside the British Islands. Regulations will prescribe the requirements which must be satisfied before an order may be made (subsection (3)). An application for an order may not be made unless the child's home has been with the applicants at all times during the preceding 10 weeks (subsection (4)). An order under this clause has the same effect as an adoption order (subsection (5)). Subsection (6) provides that regulations may provide for any provision of this Bill which refers to adoption orders to apply with or without modifications, to orders under this clause.

Clause 72: Restriction on taking children out of the United Kingdom for adoption

166. Clause 72 imposes restrictions on taking children who are Commonwealth citizens out of the United Kingdom for the purpose of adoption. It is an offence unless the proposed adopters are parents, guardians or relatives of the child, or have obtained an order under clause 71.

Clauses 73: Annulment etc of overseas or Convention adoptions, 74: Supplementary and 75: Overseas determinations and orders

167. Clause 73 deals with the annulment of overseas or Convention adoptions made in a country outside the British Isles or Convention adoption orders and clause 74 makes supplemental provision in this respect. Clause 75 makes further provision in relation to overseas determinations and orders. Clauses 73 to 75 re-enact sections 53, 54 and 59 of the Adoption Act 1976, which were amended by the 1999 Act (section 6). The amendments were to take account of the Hague Convention.

Chapter VII - Miscellaneous

168.     Chapter VII restates the criminal offences in sections 11, 58 and 57 of the Adoption Act 1976. These deal with making arrangements for adoption, advertising in connection with adoption and payments offered, made or received in consideration of an adoption. This Chapter also sets out who may prosecute offences under the Bill and the time limit for bringing such prosecutions.

169.     Chapter VII also deals with proceedings in the civil courts. It sets out procedures for appeals, aligning them with the Children Act 1989 and restates the requirement for certain hearings to be heard in private that was previously found in section 64 of the Adoption Act 1976. New provision is made to impose an obligation on the courts when dealing with proceedings for an adoption or placement order to draw up a timetable to ensure that the matter is dealt with without delay. In addition the role of the guardian ad litem and reporting officer set out previously in section 65 is now replaced by a similar role for an officer of the Children and Family Court Advisory and Support Service. The Bill gives a new right to such officers, in connection with the hearings with which they are involved, to inspect records held by an adoption agency.

170. This Chapter also provides for recognition in England and Wales of adoption orders made in Scotland, Northern Ireland, the Channel Islands and the Isle of Man.

Clause 76: Restrictions on making arrangements for adoption, etc

171.     Clause 76 restates with amendments section 11 of the Adoption Act 1976. It makes clear that only adoption agencies, a person acting in pursuance of a High Court order and in specific cases the prospective adopters, where they are the step-parent or a relative of the child, may make arrangements for adoption. Making arrangements for adoption is defined in clause 106.

172.     Subsection (2) provides that anyone else who makes such arrangements commits an offence. Under subsection (2)(b) where the arrangements are made by a voluntary organisation that is not registered to act as an adoption society both the organisation and its manager commit the offence.

173. Subsection (3) also makes it an offence for a person to receive a child who is placed with him for adoption where the arrangements to do this have not been made by an adoption agency, relative or step-parent of that child or under an order made by the High Court. However in this situation if the person can prove, on the balance of probabilities, both that he did not know and that he had no reasonable cause to believe that the child had been placed with him in breach of this clause, then he has a defence under subsection (4).

174. The offence is summary only and the maximum penalty, set out in subsection (5), is three months imprisonment, or a fine not exceeding level 5 on the standard scale, or both.

175. The standard scale on which this and all other fines in the Bill are based is defined in Section 37(2) of the Criminal Justice Act 1982. A court may impose a fine of up to the maximum for the prescribed level. Currently the levels are: level 1 £200; level 2 £500; level 3 £1,000; level 4 £2,500 and level 5 £5,000.

Clause 77: Restriction on advertisements, etc

176.     Clause 77 is a restatement and amendment of section 58 of the Adoption Act 1976. Section 58 restricted the publication of advertisements indicating that persons other than adoption agencies were willing to make arrangements for the adoption of a child. Clause 77 goes further than this. It imposes a new restriction on the distribution of such advertisements and on the publication and distribution of information about how to make arrangements for the adoption of a child.

177.     Subsections (1) and (2) set out the material that this clause applies to. Subsection (3) states that the offence covers publishing or distributing or causing to be published or distributed such material, in England and Wales. Subsection (4) defines publishing and distribution. This provision covers all forms of publication and distribution, including electronic.

178. Subsection (5)(a) and (b) provides that no offence is committed by a person who publishes or distributes an advertisement that states that an adoption agency in the United Kingdom makes arrangements for adoption or to any advertisement that such agencies have placed that states that a child is available for adoption. Under subsection (5)(c) no offence is committed by anything done by a person by means of a website that is accessed in England and Wales, if that person is habitually resident outside the United Kingdom.

179. Subsections (6) and (7) provide defences. Subsection (6) applies to all provisions of this clause except distribution by electronic means. A defence for this is provided by subsection (7).

180. Under subsection (6) it is a defence for a person to prove, on the balance of probabilities, both that he did not know and that he had no reasonable cause to believe that this clause applied to the advertisement or information in issue.

181. Where the charge is of distributing or causing to be distributed an advertisement or information by electronic means, it is a defence under subsection (7) for a person to prove that he did not know that what was distributed was an advertisement or information to which this clause applies or that when he became aware of that fact that he was not able to prevent further distribution.

182. The offence is summary only and the maximum penalty, set out in subsection (8), is three months imprisonment, or a fine not exceeding level 5 on the standard scale, or both.

183. Subsection (9) gives the Secretary of State a power, which is to be exercised after consultation with the National Assembly for Wales, to make amendments to this clause if there are technological developments relating to publishing or distributing information by electronic means. Under clause 102(3)(a) any such order cannot be made without being approved by both the House of Commons and the House of Lords.

Clause 78: Prohibition on certain payments

184.     Clause 78 restates section 57 of the Adoption Act 1976. It prohibits certain payments or rewards in connection with the adoption of a child, giving consent to adoption, handing over a child with a view to his adoption or making arrangements for the adoption of a child. Subsection (1) sets out the payments that cannot be made. The intention is to prohibit money changing hands in relation to the adoption of a child, whilst allowing payment of legitimate expenses of adoption agencies and persons applying or proposing to apply for adoption or transfer of parental responsibility orders. Certain payments are therefore permitted and these are set out in subsections (3) to (9).

185.     Subsection (2) sets out who commits an offence under this clause. This covers in subsection (2)(a) anyone who makes, or gives, a prohibited payment or reward; in subsection (2)(b) anyone who agrees or offers to make or give such a payment or reward, and in subsection (2)(c) anyone who receives, agrees to receive or attempts to obtain such a payment or reward.

186. The offence is summary only and the maximum penalty, set out in subsection (2), is three months imprisonment, or a fine not exceeding level 5 on the standard scale or both.

Clause 79: Proceedings for offences

187.     Clause 79 sets out that proceedings for offences under clause 8 (breaches of regulations by adoption agencies) are ordinarily to be brought by the registration authority. In England this will be the National Care Standards Commission and in Wales the National Assembly for Wales. Such offences can only be prosecuted by another body with the written consent of the Attorney General. Proceedings under clause 76 may be brought by either the registration authority or the Crown Prosecution Service.

188.     All prosecutions of offences under this Bill are to be brought within six months from the date the prosecutor has sufficient evidence to do so and must not be brought more than three years after the commission of the offence. The usual time limit for prosecution is six months after the offence is committed (see section 127(1) Magistrates' Court Act 1980). However, in some cases offences may only come to light after an inspection and therefore the time limit has been increased.

Clause 80: Appeals

189.     Clause 80 applies the provisions relating to appeals in magistrates' courts in section 94 of the Children Act 1989 to the Bill.

Clause 81: Proceedings to be in private

190.     Clause 81 restates section 64 of the Adoption Act 1976 and provides that proceedings under this Bill may be disposed of in chambers in the High Court, and must be heard and determined in camera in a county court. The position in magistrates' courts is that section 69(3) of the Magistrates' Courts Act 1980 will continue to apply and is amended consequentially in paragraph 15 of Schedule 2 to the Bill. This means that only those directly concerned with the case may be present during the proceedings.

Clause 82: Officers of the Service

191. Clause 82 replaces section 65 of the Adoption Act 1976 and provides for an officer of the Children and Family Court Advisory and Support Service to act on behalf of a child in applications for making, varying and revoking placement orders; applications for making adoption orders and applications for the transfer of parental responsibility prior to an adoption abroad. The role of the officer is similar to that of the guardian ad litem who was replaced by virtue of an amendment to the Adoption Act 1976 by the Criminal Justice and Court Services Act 2000.

Clause 83: Right of officers of the Service to have access to adoption agency records

192. However his powers have been extended under clause 83 of the Bill which creates a right to examine and take copies of an adoption agency's records relating to a proposed or actual application in respect of the child concerned. Any copy of such a document (or part of document) will be admissible as evidence of any matter referred to in any evidence that the officer may give in the proceedings or any report he may produce to the court in those proceedings.

Clause 84: Evidence of consent

193. Clause 84 provides for a document signifying consent to be admissible in evidence. It replaces section 61 of the Adoption Act 1976.

Clause 85: Effect of certain Scottish orders and provisions

194. Clause 85 provides in subsection (1) that a Scottish adoption order will have the same effect in England and Wales as it has in Scotland. Subsection (2) provides that freeing orders including any revocation or variation to them are to have effect in England and Wales as they do in Scotland. Subsection (3) provides for it to be an offence in England and Wales to contravene the restrictions on removing a child who is living with prospective adopters where the adoption has been agreed or where the person applying for adoption has provided the home (the provisions in sections 27 and 28 of the Adoption (Scotland) Act 1978).

195. Again these offences are to be prosecuted in the magistrates' court and the maximum penalty, set out in subsection (3), is three months imprisonment, or a fine not exceeding level 5 on the standard scale, or both.

196. Subsection (4) allows for orders made under section 29 of the Adoption (Scotland) Act 1978 to return or not to remove a child to have effect in England and Wales as if they were orders of the High Court.

Clause 86: Effect of certain Northern Irish orders and provisions

197.     Clause 86 provides in subsection (1) for an adoption order made in Northern Ireland to have effect in England and Wales. Subsection (2) makes the same provision as clause 85(3) in respect of the parallel provision in the Adoption (Northern Ireland) Order 1987 on restrictions on removal of a child where an adoption order is agreed or an applicant for adoption has provided a home (Articles 28 and 29 of the Adoption (Northern Ireland) Order 1987). Similarly subsection (3) allows for orders made under Article 30 to return or not to remove a child to have effect in England and Wales as if they were orders of the High Court.

Clause 87: Use of adoption records from other parts of the British islands

198.     Clause 87 allows any document that can be used as evidence in Scotland, Northern Ireland, the Isle of Man, or any of the Channel Islands, under the legislation set out in this clause also to be used in evidence in England and Wales. This clause replaces section 60 of the Adoption Act 1976 which did not extend to the Isle of Man or Channel Islands.

Clause 88: Orders made in the Channel Islands or the Isle of Man

199.     Clause 88 enables regulations to be made that provide for orders made by a court in the Isle of Man or in any of the Channel Islands that have the same or similar effect to any order that can be made under Part I of the Bill (for example a placement or adoption order), to have effect in England and Wales as if they were such orders.

Clause 89: Avoiding delay

200.     Clause 89 is a new provision similar to section 11 of the Children Act 1989 that is intended to avoid delay in the court process. It imposes an obligation on the court, where it is dealing with any matter where the issue of whether a placement or adoption order should be made, may arise to draw up a timetable and give any directions that are necessary to ensure that that timetable is adhered to.

Clause 90: Service of notices, etc

201.     Clause 90 re-enacts section 69 of the Adoption Act 1976 and provides that any notice or information required to be given under this Part of the Bill may be given by post.

Part II - Amendments of the Children Act 1989

Clause 91: Parental responsibility of unmarried father

202.     Clause 91 amends section 4 of the Children Act 1989 to provide that a father who is not married to the mother at the time of the child's birth is to have parental responsibility if registration or re-registration of the birth takes place according to the provisions of the Births and Deaths Registration Act 1953 and equivalent provisions for Scotland and Northern Ireland. Parental responsibility granted to an unmarried father under these provisions may only be terminated by the order of a court. Applications for the termination may be made by any person who has parental responsibility for the child or, with leave, the child.

Clause 92: Acquisition of parental responsibility by step-parent

203.     Clause 92 inserts section 4A into the Children Act 1989 to enable a step-parent to acquire parental responsibility for a child of his spouse. This may be acquired either by agreement between the step-parent and the parents who have parental responsibility for the child, or by order of the court. This measure is intended to provide an alternative to adoption where a step-parent wishes to acquire parental responsibility for his or her stepchild. It has the advantage of not removing parental responsibility from the other birth parent.

Clause 93: Residence orders: extension to age of 18

204.     Clause 93 amends section 12 of the Children Act 1989 to empower the court to direct that a residence order made in favour of someone who is not the parent or guardian of a child may be extended until the child reaches the age of 18. At present a residence order ceases to have effect when the child reaches the age of 16, unless the court is satisfied that the circumstances are exceptional. Clause 93 further provides that where the court has directed that the order may be so extended, an application to vary or discharge the order may only be made with the leave of the court. The intention of this measure is to provide a further means of delivering enhanced security where the holder of a residence order who is not the child's parent is caring for the child on a long term basis.

Clause 94: Special guardianship orders

205.     The Government promised in the Adoption White Paper to develop a new legal option called special guardianship, intended to meet the needs of children who cannot live with their birth parents, for whom adoption is not appropriate, but who could still benefit from a legally secure placement.

206.     Clause 94(1) inserts new sections 14A to 14E into the Children Act 1989 to provide for the new special guardianship order. The new sections provide for who may apply for an order, the circumstances in which orders may be made and the nature and effect of special guardianship orders.

207.     New section 14A provides for who may apply for a special guardianship order and the application process. The person in whose favour a special guardianship order is made is a 'special guardian' (Subsection (1)). Subsection (2) provides that special guardians must be 18 or over. Subsections (3) and (4) provide that courts may make special guardianship orders in respect of any child on the application of:

  • any guardian of the child;

  • anyone who holds a residence order with respect to the child, or has the consent of all those in whose favour the residence order is made;

  • anyone with whom the child has lived for three out of the last five years (local authority foster parents may apply with the leave of the court if the child has lived with them for a year);

  • where the child is in the care of a local authority, anyone with the authority's consent;

  • in any other case, anyone who has the agreement of all those with parental responsibility for the child;

  • anyone else, including the child, who has the leave of the court to apply.

208.     People may apply jointly to become special guardians. They need not be married. Under subsection (5) the court may also make special guardianship orders in any family proceedings concerning the welfare of a child if they consider an order should be made, even if no application has been made. Family proceedings are defined in section 8(3) of the Children Act 1989 and include adoption proceedings under this Bill.

209.     Subsections (6) to (9) set out the application process. Applicants must give 3 months written notice to their local authority of their intention to apply for the order. The local authority must then complete a report to the court about the suitability of the applicants to be special guardians. Regulations may prescribe matters to be covered in the report. It is intended to use these arrangements to ensure a proper assessment process is followed for special guardians. The court may not make an order unless it has received a report covering the suitability of the applicants.

210. New section 14B provides that before making a special guardianship order the court must consider whether a contact order (for example, to enable continued contact with the child's birth parents) should be made at the same time. The court may also on making the special guardianship order give leave for the child to be known by a new surname.

211. New section 14C sets out the effect of special guardianship orders. Subsection (1) gives the special guardian parental responsibility for the child. The special guardian may exercise parental responsibility to the exclusion of others with parental responsibility, except in exceptional circumstances where the law provides that the consent of all parties with parental responsibility may be or is required (for example, sterilisation of a child). Subsection (3) provides that while an order is in force the child may only be known by a different surname with the consent of all those who have parental responsibility, or with the leave of the court.

212. The intention is that the special guardian has clear responsibility for all the day to day decisions about caring for the child or young person and for taking decisions about his upbringing. But the order retains the basic legal link with the birth parents, unlike adoption. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. They do retain the right to consent or not to the child's adoption or placement for adoption. Subsection (4) provides that the special guardian must also take reasonable steps to inform them if the child dies.

213. New section 14D provides that, unlike adoption orders, special guardianship orders can be varied or discharged on the application of:

  • the special guardian;

  • the child's parents or guardian (they may only apply after one year with the leave of the court and leave is to be granted only if there has been a significant change of circumstances since the order was made);

  • the child (with the leave of the court);

  • if a care order is made in respect of the child, the local authority can apply to discharge the special guardianship order;

  • anyone who has a residence order in respect of the child.

214.     Under the Children Act 1989 the child's welfare is the paramount consideration for the court in considering whether or not to make or discharge the order. Subsection (2) provides that the court may, during any family proceedings in which a question arises about the welfare of a child under a special guardianship order, vary or discharge the order in the absence of an application.

215.     New section 14E makes supplemental provisions, including allowing the court to set timescales for proceedings involving special guardianship applications, and to include directions and conditions, including time limited provisions in special guardianship orders. By subsection (6) the court must appoint an officer of the Children and Family Courts Advisory and Support Service (CAFCASS) in special guardianship proceedings.

216. Subsections (2) to (4) of clause 94 amend the Children Act 1989 to give special guardians the power to appoint a guardian under section 5 of the Act, to have responsibility for the child in the event of their death, and to provide that a residence order may only be applied for in respect of a child under a special guardianship order with the leave of the court.

217. Subsections (5) to (7) amend the provisions added to the Children Act 1989 by the Children (Leaving Care) Act 2000 to place a duty on local authorities to consider whether to provide advice and assistance to former looked-after children aged between 16 and 21 subject to special guardianship orders, including support for employment, education and training. The Government intends to make additions during the passage of the Bill to provide for support arrangements for children subject to special guardianship orders and their special guardians.

218. Subsection (8) provides that a special guardianship order when made discharges any existing care order, related contact order or any order made under section 8 of the Children Act 1989 (such as a residence order). However, if the need arises, a care order or (with leave of the court - see subsection (4)(b)) a residence order may be made while a special guardianship order is in force. If made, the special guardianship order is not automatically discharged but the local authority concerned or person in whose favour the residence order is made will have the right to apply for discharge or variation of a special guardianship order by new section 14D.

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