APPENDIX 25
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.
A STATUS FOR
STEP-PARENTS
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.
ADOPTION BY
A LONE
PARENT (CLAUSE
43)
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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