Select Committee on Select Committee on the Adoption and Children Bill Appendices to the Minutes of Evidence


Memorandum submitted by Professor Judith Masson, Warwick University

  My evidence is focused on the provisions in the Bill relating to adoption by step-parents, adoption by parents and the granting of parental responsibility to step-parents. My knowledge in these areas derives initially from research into step-parent adoption and the Children Act 1975, funded by the Department of Health, which I conducted jointly with British agencies for Adoption and Fostering. This world formed part of my PhD: Step-parent Adoption—a socio-legal study and was published: J Masson et al, Mine, yours or ours? HMSO (1983). Since that time I have been consulted on the more limited research conducted into adoption by step-parents and custodianship (the precursor to special guardianship), advised individuals and organisations on step-parents rights and written widely on the Children Act 1989.

  Although the proposed Bill removes the anomaly whereby the birth parent had to adopt their own child, jointly with the step-parent (clause 43(2)(a), there is a strong case for arguing that this in-family use of adoption should be ended not reformed. Instead of adoption there should be a simple process which allows the recognition of the step-parent as step-parent with power to make decisions relating to a child in their care.

  1.  The use of adoption by parents and step-parents developed at a time when both births outside marriage, and divorce, were stigmatised. Adoption was used following parental marriage or remarriage to conceal the "misfortune" of the child's background. These conditions no longer pertain. Social policy emphasises that "parenthood is for life" and encourages the maintenance of links between parents after separation. Both parents with care and non-residential parents are expected to ensure that the child can maintain contact with the non-residential parent and their relations. In this context, legislation which enables a parent to be excluded totally from their child's life, even to the extent of formally concealing their existence, is out of line. There was evidence in the DH research that exclusion of and ending contact with the other parent were motivations for parents with care seeking adoption. Non-residential parents were often willing to accede to requests for a child's adoption because this extinguished all their financial responsibility to the child.

  2.  Following a steady rise from the 1950s to the mid-1970s step-parent adoption declined although the number of step-families grew substantially. In the peak year, 1974, there were over 14,000 such adoptions. Few families choose to use this legal mechanism. Now only approximately 2,700 children[5] are adopted by a parent and step-parent, a tiny minority of those living in step-families.

  3.  Adoption ends the child's legal relationship with the non-adopting parent and changes the child's identity formally and officially to conceal, during childhood, details of the non-adopting birth parent. The practice of step-parent adoption emphasises the exclusion of the birth parent; adoption following widowhood and remarriage is far less common than adoption following divorce and remarriage or adoption of children born from non-marital relationships. The sample of cases for the DH research drawn from applications from 1975-78 under 10 per cent of children had lost a parent through death.

  4.  Recognition of the importance of the step-parent should not depend on, or be linked with changing the child's identity or ending a birth parent's identity. The case for granting parental responsibility for a step-parent who is involved in day to day care of a child is quite distinct from that for ending a birth parent's status but these issues are necessarily tied together in adoption.

  5.  Recognition of the step-parent/child relationship can be achieved through residence orders, guardianship appointments, making wills etc without ending birth relationships or changing status. Almost all of the positive consequences of adoption can be achieved for the child and step-parent without adoption. [6]The proposed reforms to residence orders and to parental responsibility agreements will facilitate and strengthen the process for step-parents achieving recognition without adoption.

  6.  Families who seek step-parent adoption are generally unclear about its effects and implications and unclear about their reasons for so doing. The reason most commonly given was "to make them feel like a proper family" but their explanation of this was generally limited to the fact that the family member would have a single surname. It is now far more common for family members to have different names; where it is in the child's interests, name change can be achieved without the drastic step of adoption.

  7.  Adoption by father and step-mother is far rarer than adoption by mother and step-father. Some families who seek to adopt only adopt the mother's children not the father's. This too may reflect an emphasis on changing the child's name.

  8.  Given the impact on the rights to family life of the child, the step-parent and the other parent, step-parent adoption cannot be a rubber-stamping process. [7]By adoption, the State is recognising the suitability of the applicant step-parent to have parental responsibility and the correctness of removing parental responsibility from the other parent.

  9.  Applicants are often poorly informed about adoption before committing themselves to the process. Advice and counselling may be provided by social services as part of the process of preparing a report for the courts, but applicants are unable to contemplate alternative approaches at this stage. Where inappropriate applications are continued, there is considerable disappointment and resentment when they are refused.

  10.  Scarce social work and court resources are committed to step-parent adoption which could be used to improve adoption services generally or to provide more appropriate support for step-families. It is clear from SSI reports and the reports of the former Children Act Advisory Committee on court work loads that resources to deal with the expected increase in adoption from care are not available.

  11.  Adoption carries with it notions of good parenting, of being approved and accepted as especially suitable. If it remains an option for step-families, it is likely that for this reason a few will seek it regardless of the availability of alternatives which might better suit their arrangements.


  1.  Clause 92, which adds new section 4A to the Children Act 1989, will allow a parent to enter into a formal agreement giving parental responsibility to the step-parent. The court will also have the power to make a parental responsibility order in favour of a step-parent. Such an agreement will only be revocable by the court on application of anyone with parental responsibility or (with leave) the child. This mirrors section 4 which enables parental responsibility to be acquired by the "unmarried" father of a child.

  2.  It should be noted that this provision would allow both a child's step-parents to acquire parental responsibility ie the partner of the parent with care and the partner of the non-residential parent. The legislation should not therefore be portrayed as biased against or in favour of mothers or fathers.

  3.  Under the proposed section 4A, the non-residential parent's agreement will be required if he or she has parental responsibility. This appears to give considerable power to the other parent over new relationships and may add to conflict within the fragmented family. The Law Commission, in the proposals that led to the Children Act 1989, was most concerned about the existence of "bargaining chips" which could distort arrangements. The requirement for consent seems to be such a "bargaining chip".

  4.  Requiring the other parent's consent is likely to lead to additional litigation because parents and step-parents may prefer to apply for a court order rather than to get involved with wrangling or bargaining with the other parent. If litigation is required, the limited availability of legal aid means that some step-parents will not have the opportunity to formalise their relationship with their step-child under the new section 4A. Where there is an application to the court, the court will have to apply the welfare test in section 1(1). It is most unlikely that the attitude of the other parent will be a factor which can be seen as impacting on the child's welfare, consequently the issue of his or her consent will be irrelevant in the proceedings.

  5.  The nature of parental responsibility is not itself a justification for requiring the other parent's consent. Decisions about what happens to children are not subject to majority voting; disputes can be referred to the court for adjudication on the basis of the child's welfare.

  6.  Even if consent is required it will remain possible for a parent to delegate parental responsibility to anyone, without the consent of the other parent (Children Act 1989, section 2(9)). The distinction between informal but recorded delegation and a section 4A agreement is limited. The delegation may not count as giving parental responsibility to the recipient for the purpose of a right to apply to court or duties on third parties to consult the step-parent, but it would be difficult for a third party, for example a local authority, to refuse to consult such a person if they knew of a long-lasting delegation. It may be helpful to note that under education law a pupil's parents and step-parents all have voting rights in relation to school decision-making.

  7.  If the other parent has a good reason, related to the child's welfare, why the step-parent should not have parental responsibility then it is open to him or her to apply to the court for revocation. It is preferable to put the onus on the other parent, rather than to require agreement, because this facilitates sharing of parental responsibility within step-families, and avoids difficulties associated with tracing and gaining the co-operation of the other parent. Also the court will only revoke the order if this is in the best interests of the child (Children Act 1989, section 1(1)). Reasons for opposition that do not relate to the child's welfare cannot impact on the process as they can if agreement is required.

  8.  The other parent should be notified of the agreement but this should not be a pre-requisite for the agreement.

  Overall, the proposal to allow step-parents to acquire parental responsibility by agreement is a good one but there should not be a requirement for the agreement of the other parent and adoption should not be available as an alternative.


  The history of adoption by a lone parent is similar to that of step-parent adoption. The National Council for the Unmarried Mother and her Child advised women that they could avoid the stigma of illegitimacy for their children by adopting them. However, this practice never became widespread. In 1950 there were 59 such adoptions by mothers, but only 25 in 1973, the last year for which figures are available. Fathers of illegitimate children also used adoption to get parental responsibility but such applications were very uncommon. Until 1970 there was no other way that they could acquire this. Now the Children Act 1989 allows father without parental responsibility to obtain it by agreement with the mother or by a court order.

  1.  Adoption by a lone parent ends the child's legal relationship with the other parent. It does not give the parent greater rights than he or she has or could acquire in other ways as a parent. Nor does it enhance the child's status by making him or her an adopted child.

  2.  Clause 43(4) reflects the view that adoption by a lone parent of their own child should be exceptional. The provision repeats the effect of the current legislation; it does not identify why adoption is justified even though it does not involve the exclusion of another living parent or such an exclusion could be justified.

  3.  In the case of Re B (adoption by one parent to exclusion of other), [8]a strong Court of Appeal[9] overturned a decision of the High Court to grant an adoption order in favour of a father. Adoption should not be granted even though the child's mother agreed to the adoption and wanted to have no further involvement with her child. Hale L J commented that "an adoption order is a loss to the child and not a gain" because it ended the legal relationships with the mother and the child's maternal relatives.

  Given the strength of the views expressed against adoption in this case (the appeal was sought by the Official Solicitor who acted as the guardian ad litem) before re-legislating for such adoption orders Parliament should be clear that they do serve a positive purpose. It will be clear from the above, and the material on step-parent adoption that it is my view that this use of adoption would best be ended.

May 2001

5   Adoption Now, messages from research (1999) p 4. Back

6   If the child was not a British national and the adopting step-parent was, the child would gain British Nationality which would not otherwise be obtainable automatically. Such cases are exceptionally rare, in the study of 1,733 children for whom adoption was sought by parent and step-parent, there was not a single case where a specific positive legal consequence of adoption had led to the application being made or required. Back

7   Prior to the reforms in the Children Act 1975 the process was far simpler. Court reports were prepared in a routine way and three-quarters of hearings were held within three months of the application. Back

8   [2001] 1 FLR 589. Back

9   Made up of the President of the Family Division and Hale L J a leading academic, former Law Commissioner and Judge, formerly of the Family Division. Back

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