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Adoption and Children Bill

 

These notes refer to the Adoption and Children Bill
as introduced in the House of Commons on 19th October 2001[Bill 34]

 

ADOPTION AND CHILDREN BILL

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Adoption and Children Bill as introduced in the House of Commons on 19th October 2001. They have been prepared by the Department of Health to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     In December 2000 the Government published a White Paper on adoption (Adoption - a new approach; Cm 5017). This set out the Government's plans to promote greater use of adoption, improve the performance of the adoption service, and put children at the centre of the adoption process. The White Paper built on the proposals of the Prime Minister's Adoption Review, which were published for consultation in July 2000 (Prime Minister's Review: Adoption; Performance and Innovation Unit, July 2000). The White Paper included a commitment to introduce new adoption legislation in 2001.

4.     The purpose of this Bill is to reform adoption law, to implement the proposals in the White Paper that require primary legislation, and to underpin the Government's programme to improve the performance of the adoption service and promote greater use of adoption. The Bill builds on and incorporates the proposals to update adoption legislation set out in the draft Bill published for consultation in 1996 (Adoption - A Service for Children; Department of Health and Welsh Office, March 1996), which were themselves the product of the Review of Adoption Law; Department of Health and Welsh Office, October 1992, and the White Paper - Adoption: The Future; Cm 2288, November 1993. A previous version of this Bill was introduced on 15th March 2001. It received its second reading on 26th March and was committed to a select committee. The Bill fell at the dissolution of Parliament.

5.     In summary, this Bill:

  • aligns adoption law with the relevant provisions of the Children Act 1989 to ensure that the child's welfare is the paramount consideration in all decisions relating to adoption;

  • places a duty on local authorities to maintain an adoption service, which must include making arrangements for the adoption of children and for the provision of adoption support services (to include financial support);

  • provides a new right to an assessment of needs for adoption support services for adoptive families and others;

  • sets out a new regulatory structure for adoption support agencies, requiring them to register under Part 2 of the Care Standards Act 2000, to ensure that adoption support services are provided to a high standard;

  • enables the appropriate Minister to establish an independent review mechanism in relation to the assessment of prospective adopters and the disclosure of protected information by adoption agencies;

  • makes provision for the process of adoption and the conditions for the making of adoption orders, including new measures for placement for adoption with consent and placement orders to replace the existing provisions in the Adoption Act 1976 for freeing orders;

  • provides for a new more consistent approach to access to information held in adoption agency records, by ensuring that the release of this sensitive information about adopted people and birth families happens in a proper manner and takes account of their views wherever possible;

  • incorporates with amendments the Adoption (Intercountry Aspects) Act 1999 (other than sections 1, 2 and 7, and Schedule 1), as respects England and Wales;

  • provides additional restrictions on bringing a child into the UK in connection with adoption, aimed at ensuring that British residents follow the appropriate procedures where they adopt a child overseas or bring a child into the UK for the purposes of adoption;

  • provides for restrictions on arranging adoptions and advertising children for adoption (through traditional media and electronically) other than through adoption agencies, and prohibits certain payments in connection with adoption;

  • makes express provision enabling the Secretary of State to establish an Adoption and Children Act Register to suggest matches between children waiting to be adopted and approved prospective adopters;

  • makes provision obliging courts to draw up timetables for resolving adoption cases without delay;

  • amends the Children Act 1989 to provide that an unmarried father acquires parental responsibility where he and the child's mother register the birth of their child together;

  • amends the Children Act 1989 to introduce a new special guardianship order, intended to provide permanence for children for whom adoption is not appropriate.

Changes to the Adoption Service

6.     The White Paper set out the Government's proposals to encourage wider use of adoption, particularly of children looked after by local authorities. Each year there are about 4,000 adoptions in England and Wales. Around half of all adoptions are of children who have been looked after by local authorities. The Government has set a target of a 40% increase in adoptions of looked after children in England by 2004/5. The measures to improve adoption support included in the Bill are intended to encourage more people to come forward to adopt and to help adoptive placements to succeed. The Bill places a duty on local authorities to make arrangements for the provision of adoption support services, as specified in regulations. This duty will be used to deliver the new frameworks for adoption support and financial support promised in the White Paper. It also provides a new right to request and receive an assessment of needs for adoption support services. The assessment will link with other local authority functions and local education authority and heath services, where the needs for such services are identified, with the aim of identifying a co-ordinated package of support to help adoptions succeed.

7.     To encourage more people to apply to adopt and to build confidence in the adopter assessment process, the White Paper committed the Government to provide an independent review where an adoption agency intends to turn down a prospective adopter's application. The Bill includes powers enabling the appropriate Minister to establish a mechanism, which may be run by an independent body, to review qualifying adoption agency determinations. The intention is that the independent review mechanism will review, at a prospective adopter's request, applications that adoption agencies have indicated they are minded to turn down. It is also intended to use the independent review mechanism to review adoption agency determinations about the disclosure of information concerning a person's adoption.

Placement for adoption

8.     The Bill changes the process of adoption itself. The Government believes that the needs and welfare of children should be at the centre of the adoption process. The Bill makes the welfare of the child the paramount consideration for courts and adoption agencies in all decisions relating to adoption, including in deciding whether to dispense with a birth parent's consent to adoption. It provides a welfare checklist which must be applied by the court and adoption agencies. The paramountcy test brings adoption legislation into line with the Children Act 1989.

9.     The Bill establishes new legal processes for placing a child for adoption through an adoption agency. Two routes are provided: birth parents may give consent to placement or a local authority may secure a placement order from the court, authorising it to place a child with adopters whom they select. A local authority must apply for a placement order where it is satisfied that a child should be adopted, but the parents do not consent to placement or have withdrawn such consent. The placement provisions build on and implement the recommendations of the Adoption Law Review (see paragraph 4).

10.     The intention is to ensure that decisions about whether adoption is the right option for the child, whether the birth parents consent and, if not, whether parental consent should be dispensed with are taken earlier in the adoption process than at present, with court involvement where necessary. The system aims to provide greater certainty and stability for children by dealing as far as possible with consent to placement for adoption before they have been placed; to minimise the uncertainty for prospective adopters, who possibly face a contested court hearing at the adoption order stage; and to reduce the extent to which birth families are faced with a 'fait accompli' at the final adoption hearing.

Disclosure of information about a person's adoption

11.     The Bill also makes new provision for the disclosure to adopted people of background information held by the adoption agency in connection with their adoption, and for access to their birth records. These provisions also cover the release of adoption agency information to birth relatives and others. The Bill provides for a single point of access to identifying information through adoption agencies, as the bodies best placed to provide the support and counselling needed for this sensitive task (paragraph 137 refers). The provisions include a new right for adopted people to have access to a standard package of background information about themselves and their birth family from their adoption agency records when they reach the age of 18 to promote more consistent access to this information for adopted people. The new regulatory framework for the disclosure of information about a person's adoption seeks to recognise the interests of all those involved. The Bill provides for the exercise of discretion by adoption agencies in this area, to be reviewed by an independent panel.

12.     The new scheme would only apply to adoptions that take place after the Bill has been brought into force. Previous arrangements for access to information would continue to apply to those adopted prior to the date of implementation of the Bill.

Intercountry adoption

13.     The Bill incorporates most of the provisions of the Adoption (Intercountry Aspects) Act 1999 (the 1999 Act), which will largely be repealed in respect of England and Wales when the Bill is enacted. The 1999 Act provides a statutory basis for the regulation of intercountry adoption, enables the United Kingdom to ratify the Hague Convention on Protection of Children and Co-operation and introduces sanctions against those who bring children into the UK without following the proper procedures. The 1999 Act also clarifies that local authorities have a duty to provide, or arrange to provide, an intercountry adoption service and provides that children who are the subject of a Convention adoption will receive British nationality automatically.

14.     To ensure that people living in the UK wishing to adopt a child from overseas follow the appropriate approval procedure, whether they adopt the child abroad or in the UK, the Bill enhances the safeguards in the 1999 Act. It incorporates the restriction in that Act on bringing a child into the UK for the purpose of adoption by a British resident, and provides a new restriction where a child is brought into the UK if he has been adopted by a British resident under an adoption order made under the law of a country outside the British Islands, which is not a Hague Convention adoption, within the previous six months. It also provides a new penalty in cases where the Magistrates' Court refers the case to a Crown Court or the defendant enters a plea of not guilty and elects for a Crown Court trial. In such cases, the maximum penalty will be 12 months' imprisonment or an unlimited fine, or both.

Safeguards for the adoption process

15.     The Bill reaffirms with amendment existing safeguards under the Adoption Act 1976 that restrict who can lawfully arrange adoptions, and advertise about adoption. This includes advertising about adoption through traditional media and electronically. It also provides restrictions on the preparation of certain reports and prohibits certain payments or rewards in connection with adoption.

Measures to tackle delay

16.     The Bill includes measures intended to tackle delays in the adoption process. It makes express provision to enable the Secretary of State to establish an Adoption and Children Act Register to suggest matches between children waiting to be adopted and approved prospective adopters. The Register is intended to reduce delay in matching children with adoptive families. The Bill also includes measures requiring courts to draw up timetables for resolving adoption cases without delay, and to give directions to ensure the timetable is adhered to.

Special Guardianship

17.     The Government promised in the White Paper to develop a new legal option called 'special guardianship'. This is intended to meet the needs of children for whom adoption is not appropriate, but who cannot return to their birth parents and could benefit from the permanence provided by a legally secure family placement. For example, some older children (who may, for instance, be being looked after in long term foster placements) do not wish to be adopted and have their legal relationship with their parents severed, but could benefit from greater security and permanence. Adoption may also not be the best option for some children being cared for on a permanent basis by members of their wider family. Some ethnic minority communities have religious or cultural difficulties with adoption in the form provided for in the law of England and Wales.

18.     The Bill amends the Children Act 1989 to provide for the new special guardianship order. It sets out who may apply for an order, the circumstances in which orders may be made and their nature and effect. The intention is that, in order to provide the child with the stability he needs, the special guardian has clear responsibility for all the day to day decisions about caring for the child or young person and for taking the decisions about his upbringing. But, unlike adoption, there is the possibility of discharge or variation of the order, and the child's legal relationship with his birth parents is not severed. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. Special guardians will have access to a range of support services under procedures similar to those provided for adoption support.

THE BILL

19.     The Bill replaces the Adoption Act 1976 and reforms the existing legal framework for domestic and intercountry adoption in England and Wales. It also consolidates some of the provisions in the Adoption (Intercountry Aspects) Act 1999. In the 1999 Act, sections 1 and 2 (regulations to give effect to the Convention and Central Authorities), section 7 (amendments to the British Nationality Act 1981) and Schedule 1 (the text of the Hague Convention so far as material), are to continue in force for England and Wales, as well as Scotland. The remaining provisions as respects England and Wales will cease to apply in England and Wales and will instead be incorporated into the Bill. The Bill will affect all adoptions and arrangements for the adoption of children in England and Wales and all adoption applications from persons resident and settled in England and Wales who seek to adopt children living abroad. Some parts of the Bill extend to Scotland and Northern Ireland. It is intended that the current mutual recognition of adoption and cross border placement for adoption between England, Wales, Scotland and Northern Ireland will continue.

20.     The Bill has three Parts:

  • Part 1 sets out the framework of adoption law for England and Wales. Chapter 1 provides for the welfare of the child to be paramount (clause 1). Chapter 2 covers the adoption service. It places a duty on local authorities in England and Wales to maintain an adoption service, which includes making arrangements for the adoption of children and for the provision of adoption support services (clause 3); provides a statutory right to request an assessment for adoption support services (clause 4); amends Part 2 of the Care Standards Act 2000 to provide for the registration of adoption support agencies (clause 8); enables the appropriate Minister to establish a new independent review mechanism to consider determinations made by adoption agencies about the suitability of prospective adopters and the disclosure of protected information (clause 12); provides for default powers (clause 14), inspection (clause 15) and inquiries (clause 16). Chapter 3 covers placement for adoption and adoption orders. It introduces placement by consent and placement orders (clauses 17 to 28); makes provision for the removal of children who are or may be placed for adoption (clauses 29 to 34) and makes provision for adoption orders (clauses 44 to 49). It also makes provision for disclosure of information about a person's adoption (clauses 53 to 62). Chapter 4 covers the status of adopted children (clauses 63 to 73). Chapter 5 makes provision for the Adopted Children Register (clauses 74 to 76) and the Adoption Contact Register (clauses 77 and 78). Chapter 6 makes provision for intercountry adoption (clauses 80 to 87). Chapter 7 covers miscellaneous provisions. It makes provision for offences relating to arranging adoptions (clause 89), reports (clause 90) and making certain payments (clause 91).

  • Part 2 makes amendments to the Children Act 1989; it provides for the acquisition of parental responsibility by an unmarried father who jointly registers with the mother their child's birth (clause 106); introduces a more straightforward process for step-parents to acquire parental responsibility either through the courts or with consent (clause 107); provides for a local authority foster parent to apply for a section 8 order if the child has lived with him for one year rather than three years (clause 108); provides for enhanced residence orders (clause 109) and special guardianship (clauses 110); amends the complaints procedure by allowing for regulations to impose time limits for the making of representations and establish an informal resolution stage, and extending the procedure to some services provided under Parts 4 and 5 of the Children Act (clause 111) and makes provision regarding care plans (clause 112).

  • Part 3 makes miscellaneous provision, including on advertising (clauses 113 and 114), and establishing the Adoption and Children Act Register (clauses 115 to 119).

21.     The Bill contains six Schedules:

    1.     Registration of Adoptions.

    2.     Disclosure of Birth Records by Registrar General.

    3.     Minor and consequential amendments.

    4.     Transitional provisions and savings.

    5.     Repeals.

    6.     Glossary.

COMMENTARY ON CLAUSES

Part 1 - Adoption

Chapter 1 - Introductory

Clause 1: Considerations applying to the exercise of powers

22.     Clause 1 is an overarching provision that will apply whenever a court or an adoption agency (a local authority or a registered adoption society) is coming to any decision relating to the adoption of a child. This would include any decision by the court whether or not to dispense with parental consent to adoption. In line with the commitment made by the Government in the White Paper Adoption: a new approach it introduces into adoption law principles already in the Children Act 1989. This was a central recommendation of the Adoption Law Review. The paramount consideration of the court or agency in any decision is the child's welfare (subsection (2)). This brings the welfare test into line with that in the Children Act 1989, with the important addition that the court or agency must consider the child's welfare throughout his life, in recognition of the lifelong implications of adoption. The court or agency must also bear in mind that in general any delay is likely to prejudice the child's welfare (subsection (3)).

23.     A welfare checklist is set out in subsection (4) and must be applied by the court or agency in determining the best interests of the child in any decision relating to adoption. This is modelled on the equivalent provision in the Children Act, but is tailored to address the particular circumstances of adoption. It includes a requirement to have regard to the child's ascertainable wishes and feelings about the decision (having regard to his age and understanding) and to his particular needs (for example, physical or educational). It also obliges the court or agency to have regard to the relationship the child has with his relatives, the prospects of and benefits to the child of this relationship continuing, the ability of his relatives to provide the child with a secure home and to meet his needs, and their views concerning the decision relating to the adoption of the child. 'Relative' includes the child's mother and father - see subsection (8). Subsection (5) provides that in placing a child for adoption, the agency must give due consideration to the child's religious, cultural and linguistic background. This is in line with the duty placed on local authorities by section 22(5)(c) of the Children Act, where the authority must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background when they take any decision about a 'looked after' child, including where they should be placed.

24.     In taking any decision relating to the adoption of a child the court or agency will have to consider the whole range of powers available to it under the Bill and the Children Act 1989 and a court may only make an order where it considers that it would be better for the child than making no order (subsection (6)).

Chapter 2 - The Adoption Service

25.     Chapter 2 makes provision for the structure of the adoption service. Some of the clauses re-model provisions of the 1976 Act. However, this Chapter also underpins some important areas of new policy dealing with adoption support services (which may include financial support) and independent reviews of qualifying determinations (see clause 12). Registration of voluntary organisations which are adoption societies is to be undertaken by the registration authority (the National Care Standards Commission in England and the National Assembly in Wales) under Part 2 of the Care Standards Act 2000. Only limited provision is therefore required in respect of the regulation of such adoption societies. However, Chapter 2 amends the Care Standards Act to make provision for the registration of adoption support agencies (see clause 8).

Clause 2: Basic definitions

26.     Clause 2 sets out some basic definitions, including the definition of an "adoption society" and a "registered adoption society", which must be a body corporate. The functions of an adoption society must consist of or include making arrangements for the adoption of children. They may also include the provision of adoption support services. Subsection (1) provides that the services provided under clause 3(1) are to be known as "the Adoption Service" and that a local authority or a registered adoption society may be referred to as an "adoption agency". A registered adoption society is treated as registered in respect of any facilities of the Adoption Service unless it is a condition of its registration that it may not provide that facility (subsection (3)). Subsection (7) states that the references in this Chapter to adoption are to the adoption of persons wherever they may be habitually resident, effected under the law of any country or territory.

27.     Subsection (6) provides that adoption support services include counselling, advice and information in connection with adoption. Regulations will set out what other services are to fall within this definition. The Government's intention is that the services set out in the regulations will include financial support.

Clause 3: Maintenance of Adoption Service

28.     Under clause 3, each local authority must continue to provide within their area an adoption service, designed to meet the needs of children who may be adopted, their parents and guardians, persons wishing to adopt a child and adopted persons, their parents, natural parents and former guardians. Facilities must include making and participating in arrangements for the adoption of children and making arrangements for the provision of adoption support services. In addition to the duty to make arrangements for the provision of adoption support services to the above categories of persons, subsection (3)(a) places local authorities under a duty to make arrangements for the provision of adoption support services to persons prescribed in regulations. Subsection (3)(b) gives local authorities a power to make arrangements for the provision of adoption support services to those persons.

29.     Local authorities may meet their obligation to provide services by ensuring that they are provided by a registered adoption society or such other persons as may be specified in regulations (subsection (4)). Subsection (5) provides that facilities of the adoption service must be provided in conjunction with other local authority social services and with registered adoption societies in the local authority's own area, in a co-ordinated manner.

30.     The provisions in clauses 2 and 3 will be used to give effect to the new frameworks for adoption support and financial support.

Clause 4: Assessments etc. for adoption support services

31.     A local authority must, under clause 4, carry out an assessment of the needs for adoption support services of any of the persons mentioned in clause 3(1) and any other person of a prescribed description, at that person's request.

32.     The assessment for adopted children and their adoptive parents will provide a mechanism to assist them in accessing adoption support services. The assessment is intended to provide a means of facilitating the provision of a planned and co-ordinated support package, drawn from the range of support services to be set out in the new national framework. The assessment will link with other local authority functions and local education authority and health services, where the needs for such services are identified, with the aim of identifying a co-ordinated package of support to help adoptions succeed. The right to request and receive an assessment will also apply to the other persons mentioned in clause 3(1), and in the regulations made under clause 4(1)(b). The assessment for these persons will also help them to access adoption support services to meet their adoption-related needs. It is intended that the persons prescribed in the regulations made under clause 3(3)(a) will be included in the regulations made under clause 4(1)(b).

33.     Regulations made under subsection (7)(a) may set out the circumstances in which the categories of person prescribed in the regulations made under subsection (1)(b) are to have a right to request and receive an assessment. The local authority may also carry out an assessment of the needs of any other person for adoption support services (subsection (2)). Local authorities may call upon the expertise of registered adoption societies or persons prescribed in the regulations made under clause 3(4)(b) to assist them in carrying out an assessment (subsection (3)).

34.     Under subsection (4), where a person's needs for adoption support services are identified in an assessment, the local authority must decide whether to provide adoption support services to that person. Where a decision is taken to provide services, in prescribed circumstances the local authority will be required to prepare a plan for the provision of services (subsection (5)). It is intended that a plan will be required where a number of different adoption support services are being provided, in order to co-ordinate the provision of those services.

35.     Subsections (6) and (7) provide a power to make provision in regulations about the carrying out of assessments, including considerations to be taken into account during the assessment, preparing and reviewing plans, the provision of services in accordance with plans and reviewing the provision of adoption support services. These regulations will underpin the delivery of the new frameworks for adoption support and financial support. Regulations under subsection (7)(b) may set out the type of assessment which is to be carried out for each of the categories of person mentioned in clause 3(1) and anyone else who receives an assessment for adoption support services. Regulations under subsections (7)(f) and (g) may set out the circumstances in which adoption support services may be provided subject to conditions and the consequences of failure to comply with any such conditions. It is anticipated that regulations could, for example, be used to enable local authorities to specify that financial support must be spent on specified items or services and that sums given may be recouped where they are not spent accordingly. This may be appropriate where a one-off grant is being paid for a specific purpose, but is unlikely to be appropriate for a regular adoption allowance. Regulations made under subsection (7)(h) may set out where the responsibility for carrying out an assessment and the provision of any adoption support services lies in cases where a child is placed with an adoptive family living in a different local authority area, together with funding arrangements.

36.     An assessment for adoption support under this provision may be carried out at the same time as an assessment of that person's needs under any other statutory provision (subsection (8)). This provision clarifies that an assessment for adoption support services may link with other assessments of an individual's needs carried out by the local authority. If at any time during the assessment it appears to the local authority that the person may need NHS services or services which are provided by the local education authority, the local authority must notify the Health Authority, Primary Care Trust or local education authority (subsection (9)). Subsections (8) and (9) are intended to promote the joined up provision of public services in support of adoption. The Health Authority, Primary Care Trust or local education authority will be best placed to determine whether to provide services in each individual case, in line with their obligations in existing legislation. The Government will issue guidance and directions to Health Authorities, Primary Care Trusts and local education authorities on informing the local authority where they decide to provide services as a result of such a notification, thereby giving the local authority an overview of the package of services being provided to an individual.

37.     Subsections (10) and (11) impose a duty upon local authorities to co-operate in the exercise of functions under clause 4 if it is consistent with the exercise of their functions more generally.

 
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