Memorandum submitted by the National Organisation
for the Counselling of Adoptees and Parents (NORCAP)
1. INTRODUCTION
1.1 The National Organisation for the Counselling
of Adoptees and Parents (NORCAP) was established in 1982. It offers
practical support and services, advice and counselling to adults
whose lives have been affected by adoption. In particular it works
with adopted adults who are wishing to obtain information about
their birth family or to have renewed contact with birth relatives.
Over 6,000 reunions have been facilitated through the NORCAP intermediary
service. NORCAP established the first register to link adopted
adults with birth relatives. It has been operational for over
19 years and contains more than 50,000 entries. Seven hundred
and fifty links have been achieved. The operational detail of
the NORCAP register is very different from the Adoption Contact
Register of the Registrar General. Comments sent direct to NORCAP
and findings in independent research*(1) report that the unique
supportive framework within which potential links on the NORCAP
register are facilitated is welcomed by many users.
1.2 NORCAP assists with the search necessary
to obtain information or locate birth relatives; it offers an
intermediary service to ensure the initial contact is made in
an appropriate manner and that each person has adequate support
at what can be an emotional time. NORCAP also provides various
services including local groups where adopted adults can explore
the impact of adoption upon their lives with other people who
have also experienced adoption. Many adopted adults use NORCAP
services when they need to renew contact with brothers and sisters
who were adopted into other families. They use the support of
NORCAP to help them communicate effectively with their adoptive
parents and to help them understand that their need to renew contact
with birth relatives does not reflect negatively on their adoptive
family.
1.3 Our second largest group of members
and service users are birth relatives, particularly birth mothers
and siblings of adopted people. In the early days of its existence
NORCAP offered only a passive service to birth relatives. This
reflected our understanding of adoption law at that time. However,
by offering some service, even a passive one, to birth relatives
NORCAP was working at the forefront of adoption provision and
pushing out boundaries which had effectively excluded birth relatives
for over 50 years.
1.4 From 1990 NORCAP has been campaigning
for birth relatives in the UK to have access to active service
provision similar to that enjoyed by birth relatives in Canada,
Australia and New Zealand. NORCAP was the first to identify the
opportunity for adoption agencies to use their powers under section
1 1976 Adoption Act and regulation 15(2) within present legislation
to provide an outreach service for birth relatives and have advocated
its use. Many agencies followed our model and substantial numbers
of birth parents benefited as a direct result of NORCAP's campaign.
NORCAP has worked in partnership with adoption agencies in over
400 cases enabling an intermediary service to be offered to birth
relatives through our pioneering use of non disclosure agreements.
After 10 years the Department of Health issued practice guidance
on this.*(2)
1.5 NORCAP has been able to establish through
work with our members past and present and their relatives by
both birth and adoption that skilled services which re-open adoptions
which have been closed for decades provide lasting benefit for
everyone involved. Adopted adults, birth parents and other relatives
and adoptive parents all benefit from enhanced understanding and
the removal of the burden of guilt which appears to walk hand
in hand with secrecy within families.
1.6 NORCAP has been concerned for many years
about inequality of service provision. When services are not prescribed
as duties upon agencies the variation of service provision is
unacceptable and results in injustice and great distress. As a
result of the history of adoption and the varied routes and individuals
through which the adoption service developed, one of the major
barriers to equality of service is the specific history of any
adoption situation. To remedy this the Adoption and Children Bill
as well as providing a positive framework for adoption in the
future must also address the inequality and injustice of the past.
Some three to four million adults in the UK live with the impact
of adoption. They have seen how people in similar circumstances
around the world have benefited as one legislature after another
has introduced provisions to benefit adults affected by adoption
in years gone by. They expect that this Bill will address their
needs by providing similar opportunities and services here.
1.7 NORCAP is a registered charity. It employs
4.5 fill time equivalent staff and relies upon over 60 volunteers
nationwide to provide services to the current membership of 4,000
adopted people, birth relatives and adoptive parents. Other interested
people and professionals from our associate membership.
1.8 Our evidence to the Select Committee
on the Adoption and Children Bill is in three sections:
— Provisions for adults that appear
missing from the Bill.
— Provisions for concerning adults
that need amendment.
— Provisions for adoption services
in general on which NORCAP wishes to express an opinion, based
upon our collective experience.
2. ADOPTION IS
FOR LIFE
2.1 This is the virtue of adoption. It is
the reason why this Adoption and Children Bill is such a positive
step forward for many children who may have no family for life
if they move between many foster homes and residential care settings
throughout their childhood. However, the very virtue of adoption
is also the potential cause of some of the consequential problems.
Adopted children grow up and become adults. At that stage of their
lives they do not necessarily need protection, they need rights
and with rights go responsibilities. Birth families also live
with the fact that adoption is for life. For those devoid of even
the basic information of whether or not a former family member
is alive or dead, the fact that adoption is for life can feel
like a life sentence. NORCAP wishes to celebrate the benefits
and joys of adoption but also to recognise the distress and sadness
that may ensue. Our evidence will focus on how good adoption legislation
can enhance the lifelong benefits of adoption for every one who
is affected by it.
Provisions for services for adults that appear
to be missing from the Bill. The right for birth relatives of
adopted adults to access information
2.2 Whilst adoption today is about securing
family life for children who would otherwise grow up in the care
of local authorities this is a fairly recent use of adoption.
For the first 50 years from 1926 to 1976 adoption was used, almost
exclusively, to avoid the stigma of illegitimacy and extra-marital
births. Unmarried mothers had little choice but to relinquish
their babies to adoption. Half a million women went through this
experience, they had not harmed their child in any way yet they
lost them to adoption. Told to forget and get on with their lives,
research has shown most found that impossible. They have grieved
an unending, unfocused grief not knowing even if their son, their
daughter was alive or dead. They have seen other people who lost
children to adoption in recent years, in perhaps more questionable
circumstances, benefit from letterbox or direct ongoing contact.
In August 2000 the Department of Health issued "Intermediary
services for birth relatives—Practice Guidance". Drawing
upon the research of the Children's Society and the collective
experience of a considerable number of agencies this guide detailed
the opportunities available to agencies to offer an outreach service
to birth relatives of adopted people within present legislation.
It offered a ray of hope to birth mothers in particular but also
to brothers and sisters whose sibling had been adopted and fathers,
many of whom only learned of their paternity many years after
the adoption. However, agencies were not required to follow this
guidance. Even the Minister's foreword highlighted that it was
optional. The inequality of service provision across the country
and between agencies was reinforced. The service was in any case
only a possibility for those relatives who could identify the
adoption agency.
Many could not and in other cases adoptions
were arranged by private individuals when such placements were
lawful so there is no adoption agency birth relatives can approach
to ask for an intermediary service.
2.3 It was expected that the new adoption
Bill would give statutory weight to the practice guidelines and
a means of ensuring service provision was available to those affected
by non-agency placements would be devised. We were saddened to
see that no mention of the practice guidance was even alluded
to within the Bill and no section requires the provision of intermediary
services at the request of birth relatives. In the chapter relating
to the records of the Registrar General, and the conditions for
access to these, steps have been taken to ensure that the windows
of opportunity presently available to some birth relatives to
initiate renewed contact have been firmly closed.
2.4 Birth relatives all need the opportunity
to access an active service now. It is the obvious next step in
developing our adoption service from the access to birth records
given to adopted adults by the 1976 act. Many Commonwealth countries
followed Britain's example in providing access to birth records.
They have now incorporated some form of active service for birth
relatives as well as adopted people into their legislations, either
simultaneously or within a few years of the initial provision.
Britain is alone in offering a one sided service. This Bill will
be the last chance for a generation to put this right. For the
mothers who parted with babies born during the Second World War,
for elderly brothers and sisters who remember a baby being born
and then being gone this is the last chance.
2.5 Giving statutory duty status to the
practice guidance would be one option. It would necessitate additional
resources particularly in agencies with many "historic"
or inherited records. There would also need to be provision for
adoption agency access to the information contained in the register
kept by the Registrar General to link birth entries to adoption
entries in order to ensure equality of opportunity for individuals
who cannot identify the adoption agency involved. NORCAP's preference
would be for new legislation that provides service for birth relatives
similar to the provision in Canada, New Zealand and Australia.
This would be a more empowering and sustainable option.
2.6 NORCAP can offer guidance on various
options that could be put in place as safeguards. These may include:
— protection of vulnerable children
effected by requiring service is only provided when the adopted
person is an adult.
— providing the service only if the
adopted person is aged 21 or over, (the age required to adopt
an unrelated child).
— providing for access to information
30 years the granting of adoption order (the period of closure
of cabinet papers).
— making provision for a veto to be
lodged to prevent the disclosure of identifying information; and
— applying the provision only to those
cases where the adoption order was made before 12 November 1975.
(The date at which the law was retrospectively changed to provide
access to birth records. There would then be an equal and reciprocal
need for the adults involved in an adoption situation to make
accommodation to take account of the needs of the other adults
involved.)
2.7 However, fear that a tiny minority of
people would not wish to communicate with birth relatives is not
a sound reason to fail to provide the opportunity to the vast
majority who would welcome it. The modified provision of the Adoption
Contact Register (Clauses 65-67) does not effectively address
these needs. The service is passive. In the 21st century people
expect an active service. The proposed Bill does not meet the
needs of adults affected by adoption. Our preference is for a
new section that would read:
2.8(1) Subject to what follows, the Registrar
General shall, on an application made in the prescribed manner,
by a birth relative of an adopted person and in those cases where
the Registrar General holds a record of the Adoption Order of
the individual to whom the applicant is related by blood or marriage
as defined in regulation, supply to the applicant on payment of
the prescribed fee (if any) such information is as necessary to
enable the applicant to obtain a certified copy of the record
of the adoption of his relative.
2.8(2) Before supplying any information
to an applicant under subsection (1) the Registrar General shall
inform the applicant that counselling services are available to
him at the places listed in subsection 3 below.
2.8(3) Where an applicant who is in England
or Wales applies for information under subsection (1) it shall
be the duty of the persons and bodies mentioned below to provide
counselling for him if asked by him to do so.
2.8(4) The persons and bodies are:
— any adoption society in so far as
it is acting as an adoption society within England and/or Wales;
and
— any body licensed by the Secretary
of State to provide Adoption Advice and Support Services to Adults
(see below).
2.8(5) When the applicant indicates from
which body in subsection (3) he chooses to receive counselling
the Registrar General shall send to that body the information
to which the applicant is entitled under subsection (1).
2.8(6) Where an applicant applies for information
under subsection (1) the Registrar General shall supply the information
to him only if the person to whom it relates:
— has attained the age of at least
21 years; or
— it is 30 years or more since the
date on which the adoption order was made; or
— the adoption order of the person
about whom the applicant has applied for information was made
before 12 November 1975.
2.8(7) The Registrar General shall not supply
any information under subsection (1) if the adopted person to
whom the information relates has requested in the prescribed manner
that the information is not made available to any relative.
2.8(8) Where an applicant applies for information
under subsection (1) the Registrar General shall not supply the
information to him unless he has attended an interview with a
counsellor arranged by a person or body from whom counselling
services are available as prescribed in subsection (2).
2.8(9) Where the Registrar General is prevented
by subsection (6) from supplying information to a person who is
not living in the United Kingdom, he may supply the information
to any body which:
2.8(10) the Registrar General is satisfied
is suitable to provide counselling to that person, and has notified
the Registrar General that it is prepared to provide such counselling.
In this section prescribed means prescribed by regulations made
by the Registrar General.
2.9 If the opportunity for birth relatives
to initiate contact with adopted adults is to be limited to giving
statutory duty status to the Intermediary Services for Birth Relatives—Practice
Guidelines*(2) then provision for this will need to be made both
in section 3(8)a and in Chapter 111 by inserting a new section
between the existing section 48 and section 49. It may read as
2.10 The Birth relative of an adopted adult
person has the right to access an intermediary service from the
adoption agency involved in the placement of their relative for
adoption or from the local authority adoption agency in which
the birth relative currently resides. The intermediary service
will provide that the adopted person will be made aware, in a
manner specified in regulations, that his birth relative would
wish to communicate with him.
2.11 A subsequent section will need to provide:
— An adoption agency which has a duty
to provide an intermediary service for a birth relative, but was
not the adoption agency which placed that adopted person for adoption,
shall be entitled to require the Registrar General to provide
information to the agency that will enable the adoption agency
to identify the entry of the adopted person in the Adopted Children
Register.
2.12 There will need to be a consequential
change to Section 62 to authorise the Registrar General to provide
this information to the adoption agency.
2.13 Anything less than the clauses detailed
above will fail to meet the needs of an increasingly aged group
of birth relatives.
2.14 In our submission to the Prime Minister's
Review of adoption we emphasised the importance of making provision
for the adoptive parents or long term carers or surviving spouse
of an adopted person who has died or is disabled to be allowed
to act on behalf of the adopted person. It is possible that section
48(2) was envisaged to address the need we had highlighted. This
is not achieved. In the circumstances we have in mind the adopted
person is not able to appoint someone to act on his/her behalf.
This may be because the adopted person died in childhood or because
he/she is disabled. In either case the right must be available
automatically to other appropriate people who can act on his/her
behalf to access information if necessary and to register on the
adoption contact register. A Clause to this effect may be added
to section 48.
2.15 There needs to be provision to enable
the descendants of an adopted person who has died to inherit the
right of access to information and services that the adopted person
would have enjoyed had he/she not died. This provision is available
to descendants of adopted people in Canada and Australia. The
need for such specific provision is illustrated by the number
of individuals who have resorted to making application to the
High Court under the present section 50(5) Adoption Act 1976.
Their applications have succeeded but a specific provision would
avoid the need to have to resort to such costly and potentially
intimidating procedures.
2.16 Another significant group of people
who have again been overlooked by this Bill is Foundlings—often
spoken of as abandoned babies—and their relatives. They
have no access to any information about their birth circumstances
as a result of the route by which they came to need adoption.
However, despite their unfortunate early circumstances provision
must be made so that it is straightforward for information to
be exchanged at a later date. The provisions of the adoption contact
register must be amended (see our paragraph 3.9) and the law which
specified that the abandonment of children under two years of
age is a criminal offence, Offences Against the Person Act (1861)
section 27 must also be changed.
This will ensure it does not deter any relative
coming forward and offering information that may be so important
to the adopted person even if it is many years later. Regulations
should prescribe a protocol which must be followed throughout
the UK whenever an infant is found, apparently abandoned, and
who may need adoption if he/she cannot be returned to the birth
family. The number of such incidences is increasing. The protocol
should recognise not only the immediate needs of the infant, but
the potential life long needs and also the priority which must
be given to seeking to locate the parent(s).
2.17 Many people wish to access information
and intermediary services from agencies independent of the social
services or placement agency. We are unable to recognise the proposal
contained in the White Paper at 6.46 that suitable organisations
could be licensed to undertake this work. The Minister (Mr Hutton)
speaking in the second reading debate 26 March said "Local
authorities may provide services by arranging for them to be provided
by voluntary adoption agencies or other parties prescribed in
regulations. This will enable them to draw on the Voluntary Sector
which has huge groundswell of expertise and resources". NORCAP
is just such an organisation with probably the largest body of
experience in providing services to adults affected by adoption.
2.18 We would propose that voluntary organisations
such as NORCAP should be able to apply to the Department of Health
or Local Authority for approval and licensing as an Adoption Support
and Advisory Service for Adults. Approval should be subject to
compliance with criteria laid down in regulations. The process
should be suitably rigorous but not as extensive or complex as
the approval of an adoption society that will carry responsibility
for approval of adopters as well as placement and post adoption
support of vulnerable children.
2.19 The licensing of Adoption Support and
Advisory Services for Adults could encompass not only birth records
counselling but handling provision of access to information from
adoption files on behalf of adoption agencies and for offering
intermediary and support services. Licensed services could be
authorised to operate as if an adoption agency in terms of access
to information within those areas of work which relate only to
the adoption of a person who is now an adult. If the rule of licensed
services is not recognised in primary legislation the opportunity
for the statutory sector and service users to effectively use
their expertise will be very limited as many clauses limit the
sharing of information and service provision to adoption agencies
only. If licensed services are introduced it may well free up
time in statutory and voluntary adoption agencies to meet the
placement needs of today's children as the post adoption work
with adults may be done elsewhere.
3. PROVISIONS
WHICH NEED
AMENDMENT CONCERNING
ADULTS
3.1 Section 48(c) provides that an adopted
adult has the right to obtain "a copy of any document or
order prescribed by rules, from the court in question. In Scotland,
adopted people already benefit from the right to read the entire
"court process". We trust that this section will be
clarified to provide equality of opportunity for adopted adults
in England and Wales and will not result in more restricted provision.
3.2 Section 49(1) will result in adopted
people having access to less information in the future than many
gain now. Adopted people need access to information that contains
identifying details about their birth parents, their siblings,
their grandparents and previous foster carers. If they had not
been adopted this information would never have been taken away
from them. Adoption agencies have shared background information
using their discretion as part of the work connected with birth
records counselling. The opportunity to use professional judgment
must not be removed. Whilst it may simplistically appear the "safe"
option to withhold any information which identifies a third party
it is vital to appreciate that given information people make informed
judgements. If information is withheld people still make judgments
but they are more reckless as they are not well informed. Adoption
agencies must take responsibility for consequences occurring as
a result of information they withhold just as they should for
consequences occurring as a result of information they share.
3.3 Given they must take professional responsibility
they must be allowed the discretion to exercise professional judgment
and not be constrained by the proposed wording of section 49(1).
NORCAP also believes the failure to supply comprehensive information
to an adopted person about his/her background may constitute a
breach of the adopted person's rights under Article 8 clauses
1 and 3 of the European Convention of Human Rights. The judgment
in the case of Gaskin v UK12 EHRR 36 may be significant
in this connection. Remove the restriction on providing an adopted
person with third party information.
3.4 We are unhappy that the Bill proposes
a legal fiction is section 51(1) and (2). This must be revised.
A person adopted by a single male adopter cannot be said to be
born to that adopter in wedlock. Adopted people may need the security
of knowing that adoption is permanent and will not be revoked
but they do not need unrealistic fairytales. Similarly it is most
inappropriate to pretend they are not the child of any other person,
they remain the biological child of "other" persons.
Those parents may not have parental responsibility and may not
have any role in the adopted child's life but they remain the
biological parents. This section is in conflict with section 58,
as that section specifies that the biological relationships of
the adopted person are applied in connection with schedule 1 of
the Marriage Act 1949 and sections 10 and 11 of the Sexual Offences
Act 1956 (incest).
3.5 Section 53 should be amended so an adopted
person may inherit peerages and lands associated with any peerage.
It is unjust to exclude them.
3.6 Section 62(4) We are unhappy with the
wording of this section. A section of legislation identical to
this section but without the words "In exceptional circumstances"
has been included in every adoption act from 1926 onwards.
3.7 Since 1994 three reported cases have
come before the High Court. In Re H (1994) the need for the application
to be exceptional was considered by Mr Justice Thorp (as he then
was). He concluded there was only a need for an applicant under
this section to make a case of sufficient weight and merit to
convince the court of reasonableness of making an order. In Re
D 1996, in the Court of Appeal, the substance of this judgment
was overturned by the Lord President Sir Stephen Brown. He determined
that the application should demonstrate exceptional circumstances
and potential benefit to the adopted person. However, in a very
recent judgment Mr Justice Sumner made an order under this section
having considered the unusual circumstances of the case and taking
account of the implications of the European Convention on Human
Rights. NORCAP played a very significant role in both Re H cases
and provided an affidavit in Re D.
3.8 NORCAP is convinced the Clause requiring
the Registrar General to disclose the link between a birth entry
and an entry in the adopted children's register only when ordered
to do so by the High Court is a sufficiently high threshold. The
court would not make an order frivolously. The court would ensure
that the application was reasonable of sufficient weight and merit
to justify the making of an order. Amendment—Delete "In
exceptional circumstances".
3.9 NORCAP has serious reservations concerning
the operational detail of the adoption contact register. These
have been detailed to the Registrar General and Officers at the
Department of Health over the past 10 years and regularly reiterated.
We do not consider that it is appropriate for the operational
detail to be specified in primary legislation. We understand the
Registrar General would support an amendment that prescribed the
duty to provide an adoption contact register but put the operational
detail into regulation. We propose that sections 65, 66 and 67
be replaced by a revised section 65 "The Registrar General
must cause to be maintained a register to be called the Adoption
Contact Register. The operation of the Adoption Contact Register
and the fees to be applied, if any, shall be prescribed by regulations.
3.10 However, it is essential that when
drawing up the regulations, which are likely to be based upon
the present content of sections 65, 66 and 67, adequate provision
is made to provide flexibility. The Registrar General will then
be able to process registrations from Foundlings (abandoned babies—see
paragraph 2.16 above). The regulations must also allow registrations
by persons authorised to act on behalf of an adopted person (see
paragraph 2.14 above). Special provision must be made to enable
people adopted overseas to use the register and for the birth
relatives of all these groups to be able to register with ease.
Regulations should also provide for the Registrar General to follow
up communications to ensure they have been received by the individual
for whom they are intended.
3.11 NORCAP hopes that the fees charged
for use of the contact register will be equalised. Whilst the
organisation does not dispute that the differential charge may
reflect the different costs of registration, no link can be achieved
unless a birth relative registers on part two and an adopted person
on part one. Therefore the total cost of registration of both
parties should be equally divided as the registration cost for
either party.
4. OTHER PROVISIONS
ON WHICH
NORCAP WISHES TO
COMMENT
4.1 NORCAP welcomes the requirement in sections
1(4)d and 1(5) which recognises the importance of the child's
background. For generations adopted people report that tension
within the adoptive situation is greatest when they feel they
do not fit in. We hear from people who describe themselves as
"square pegs in round holes" or the "odd one out".
The feeling of isolation may be perceived as a result of cultural,
racial, physical, intellectual or emotional differences. It is
very important that all factors are taken into account.
4.2 NORCAP is concerned that when a child
is placed for adoption with a couple who are not married to one
another only one of them will be able to adopt the child. NORCAP
is very aware that it is vital for an adopted child to be 100
per cent confident that there is equal and complete commitment
in the new family to him/her being in that family. If only one
adult can adopt, the adopted child may be insecure as a result.
4.3 This provision may reflect concern that
providing for adoption orders to be made to couples who are to
parent a child together, but are not married to each other, would
be interpreted as promoting adoption by gay couples. This is not
the key issue and needs re-examination from a child centred perspective.
This is not an issue about any adult having the right to adopt.
It is all about the adopted child's right to have the same, equal,
and lifelong relationship to both adults who act as parents to
him/her rather than the quality relationship conferred by adoption
to one of the adults and a lesser, temporary one to the other
"parent". This is like asking a child to tell you who
he/she loves most—Mum or Dad? It should not happen.
4.4 There is no legislation requiring that
children may be placed only with married couples or single people
who live alone. For many years adoption agencies have taken up
applications from unmarried people living both as heterosexual
and gay couples. Both partners are subject to the same preparation
and assessment, much of which focuses on their interaction and
their skill in working together. An appraisal is made of their
ability to support one another in the face of difficulties—a
most essential characteristic for people contemplating the challenge
of adoptive parenting. In making a recommendation for approval
as prospective adopters panels normally note which applicant will
be the one to apply to adopt and which will seek an alternative
order giving parental responsibility in recognition of his/her
role in relation to the adopted child. When a link is made this
is because after careful assessment the couple together is shown
to be the best placement for a particular child. It does not reflect
their right to be parents. It reflects the view that the child's
needs can best be met by them as a couple.
4.5 When any couple is selected as the people
who together can meet a child's needs then the child needs to
be adopted by both of them. In this way the child's rights are
met; the right of the child to be adopted by both partners not
just one. Section 43 needs amendment to achieve this.
4.6 Although during the 1960s the UK was
a signatory to a convention which requires only married couples
or single people adopt this should not determine legislation in
the twenty first century. It is not a tenable argument today for
depriving children of the right to a lifelong permanent relationship
to both would-be adoptive parents even if they are not married
to each other. In the 1960's most adoptions were of babies relinquished
by unmarried mothers solely because they were unmarried mothers.
Unmarried parenthood fell outside society's norms. All that has
changed. Most adoptions today are of children who have been looked
after in public care who need the most skilled and resourceful
adoptive parents regardless of the sexual orientation or marital
status of those parents. The child's security will be enhanced
by the knowledge that both partners are his/her adopters for life.
If implementing such beneficial change in domestic law requires
the UK to re-negotiate the international convention then it would
be done in the interest of applying an ethical policy which recognises
that the child's needs throughout his/her life must be the paramount
consideration in any matters relating to adoption.
4.7 NORCAP wishes to see changes to the
provisions contained in section 44 concerning consent. We are
saddened that the requirements for giving consent to adoption
remain so unacceptable to most birth parents who whilst recognising
the need for their child to be adopted only accept that plan with
regret and sorrow. Acceptance of the plan together with recognition
of the effect, should be the basis of consent and reflected in
the wording of forms parents need to sign for an adoption to be
heard by the court uncontested. Clause 44 does not meet this requirement
even though the White Paper indicated the means of giving consent
would be made acceptable to birth parents, thereby reducing delay
for their children. NORCAP proposes that a birth parent may give
consent to adoption by declaring "I acknowledge that adoption
will be in the best interests of my child. I accept the adoption
plan and will not oppose the making of an adoption order. I understand
the implications of an adoption order being made."
4.8 NORCAP does not consider it right to
dispense with a birth parents consent to adoption simply because
"the welfare of the child requires the consent to be dispensed
with". We do not consider such a fundamental interference
in family life can possibly be compatible with the European Convention
of Human Rights. NORCAP proposes that the test for dispensation
of consent should be that proposed in the Report to Ministers—Interdepartmental
Review of Adoption 1993. The consent of the parent may be dispensed
with if the advantage to the child of being adopted is so significantly
better than any other option as to justify dispensing with the
parent's consent.
4.9 NORCAP welcomes the introduction of
a Special Guardianship order and hopes that it will be considered
as a positive means of achieving for a child the benefits traditionally
associated with adoption whilst avoiding the losses associated
with adoption. We have learned that in New Zealand Guardianship
is the means of providing permanency for children aged over two
years.
4.10 NORCAP has taken note of two provisions
in section 94 (Special Guardianship) that we would like to see
applied also to situations involving adoption. They are:
4.11 14B Before making a Special Guardianship
order or an adoption order the court must consider whether, if
the order were made, a contact order should also be made with
respect to the child.
And 14C(4) If the child with respect to
whom a Special Guardianship order dies, his/her Special Guardian
must take reasonable steps to give notice of that fact to each
parent of the child with parental responsibility. This would translate
as:
If a child who was adopted dies his adoptive
parent(s) must take reasonable steps to give notice of that fact
to the individuals who had parental responsibility for the child
before the adoption order was made.
4.12 It would probably be appropriate to
impose a duty upon the adoption agency to assist the adoptive
parents in fulfilling this responsibility.
4.13 NORCAP trusts that the Select Committee
will recognise that the common thread through all our proposals
and concerns is a recognition that adoption binds individuals
and families together for life. We all remain emotionally connected
for life. We need a legal framework that recognises and regulates
that reality with compassion and sensitivity.
SUMMARY OF
KEY POINTS
NORCAP's issues can be summarised under three
headings, adult issues which are missing, adult issues which need
amendment, and other issues upon which we have a view born out
of our shared experience of adoption.
What is missing
1. Statutory provision to enable birth relatives
of adopted adults to obtain information about their relative who
was adopted. NORCAP proposes this is put right by introducing
an "Access to Adoption Records" clause which is a mirror
of Access to Birth Records for adopted people. We have used Canadian
legislation as a model and built in all necessary safeguards.
A much more costly, and less empowering, alternative would be
to make the Intermediary Services for Birth Relatives—Practice
Guidance produced by the Department of Health last August into
a statutory duty. There would need to be extra duties to cover
people who cannot identify the adoption agency involved.
2. The next of kin of an adopted person
who is unable as a result of any disability to register on the
adopted contact register or to access his birth records personally
must be able to do so on his behalf. Descendants of adopted people
must be able to inherit the right of the adopted person to access
that person's birth records if their ancestor has not done so
before he dies.
3. The descendants of an adopted person
who has not exercised his right to access his birth records during
his lifetime must inherit the rights he could have used.
4. Changes to the operation of the adopted
contact register must make it possible for foundlings and people
adopted overseas to register and for their birth relatives to
register without difficulty or fear of prosecution.
5. Organisations such as NORCAP should be
subject to regulation and inspection and then licensed as an Adoption
Support and Advisory Service for Adults. Such bodies should be
empowered to access official information and work in partnership
with adoption agencies on the areas of work affecting only adults.
Unlicensed bodies should be illegal.
What needs to be amended
1. Section 49 must be amended to remove
the restriction on the release of third party information. The
agency should have discretion on this matter and advise the adopted
person of the nature of any information they have decided they
must withhold together with the reason for reaching this decision.
2. The legal fiction that adopted people
have no other parents than their adoptive parents must be changed
(section 51).
3. We want to inherit peerages and lands
from our adopters (section 53).
4. "In exceptional circumstances"
must be removed from section 62(4). The High Court would only
grant reasonable applications and the onus must be on the applicant
to produce a case of sufficient weight and merit to convince the
court of the reasonableness of making an order. There should be
no artificially higher threshold. (NB if 1 and 3 in the missing
section are both implemented the number of applications under
this section will be very small).
5. The operational details of the adoption
contact register should not appear in primary legislation Section
65 should simply impose the duty upon the Registrar General to
ensure there is an Adoption Contact Register and that it is operated
in accordance with regulations.
6. Fees charged to use the contact register
should be the same for each user and not at different levels for
adopted people and relatives. One of each is needed to make a
match.
Other provisions
1. Welcome the provision of recognising
the importance of the child's background contained in section
1.4 and 1.5.
2. If a child is placed for adoption with
a couple who are not married to each other but who have been assessed
for adoption together and who will both act as adoptive parents
then the law must change to allow the child to be adopted by both
of them. This is the child's right to be adopted by them both
not their right to adopt.
3. The means of giving consent to adoption
must more realistically reflect the real position of birth parents
who need to let their children be adopted. It must not ask them
to say they freely consent because that is rarely, if ever, the
case. They accept the adoption plan and agree not to oppose the
making of an order because they recognise that is best for their
child.
4. The grounds on which a court may dispense
with a parent's consent to adoption must be re-examined. It is
unacceptable to so fundamentally interfere in family life as to
make an adoption order without the consent of the birth parent
solely on the grounds that "the child's welfare requires
it". This could lead to social engineering of the worst kind.
The benefit to the child of the making of an adoption order must
be so significantly greater than the benefit for the child that
could be achieved through any other order—including the
new special guardianship order—so as to justify the court
dispensing with the parent's consent.
5. NORCAP welcomes the introduction of Special
Guardianship as it appears this will enable children in future
to achieve most of the benefits of adoption without having to
endure the losses that may result from adoption.
6. Two provisions required when making a
Special Guardianship order should also apply when a court makes
an adoption order. They are a duty on the court to think about
making a contact order and the guardian being required to let
the birth parents know if the child dies.
May 2001
REFERENCES
1. Letter from Professor Audrey Mullender
regarding her research into the Adoption Contact Register 14 September
2000 (enclosed).
2. Intermediary Services for Birth Relatives
Practice Guidance DH August 2000.
3. Adoption Search and Reunion Howe &
Feast Children's Society 2000.
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