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The Politics of Adoption

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 41))

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Abstract

This chapter updates the developments in policy and law outlined earlier (see, Chap. 2). It gives a brief account of the main changes introduced since the Adoption and Children Act 2002, including the significance of the Children and Families Act 2014, and considers how this legislation is now operating as the legal framework for modern adoption practice in England & Wales. It considers the policy and legal issues that have arisen in recent years, the reasons and consequences of the recent intervention by Prime Minister Cameron, and examines key case law precedents. The main part of the chapter applies the template of legal functions (see, Chap. 3) to detail the current law and practice of adoption in England & Wales.

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Notes

  1. 1.

    In 1996, a draft Adoption Bill was published for consultation and the Social Services Inspectorate also published a national report on inspections of local council adoption services entitled For Children’s Sake. See, further, Harris-Short, S. 2001. New legislation: The adoption and children bill—A fast track to failure? Child and Family Law Quarterly 13(4): 405–430.

  2. 2.

    See, Sargent, S. 2003. Adoption and looked after children: A comparison of legal initiatives in the U.K. and the USA. Adoption & Fostering. London: BAAF, 27(2), at pp. 44–52.

  3. 3.

    See, the Adoption and Children (Scotland) Act 2007 which repeals the bulk of the Adoption (Scotland) Act 1978.

  4. 4.

    The public consultation process, launched in 2006, concluded with publication of the report Adopting the Future.

  5. 5.

    It is important to note that since the introduction of devolved administration the law in Wales has increasingly diverged from that in England, at least in terms of legislation and guidance. While the primary provisions are the same, the detailed implementation is devolved. For further information those interested should refer to the Welsh Government website. The author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014).

  6. 6.

    In England alone, 4,835 adoptions were entered in the Adopted Children Register in 2012, compared with 4,410 in 2011. See, Office of National Statistics (n.b. data for adoptions by court order are only available from this source since 1998). In the 12 month period ending March 2014, 5,050 children were placed for adoption.

  7. 7.

    The number of divorces throughout the EU is on the increase, with an average of 1.8 divorces for every 1,000 people, but in Britain and in Finland the rate is 2.8 divorces per 1,000, compared with just 0.6 per 1,000 in Luxembourg. See, further, at: http://www.dailymail.co.uk/news/article-52829/Britain-highest-divorce-rate-EU.html#ixzz2zjXOPKDG

  8. 8.

    See, Office for National Statistics at http://www.statistics.gov.uk

  9. 9.

    Ibid.

  10. 10.

    The figures vary widely between member states—ranging from just 4 % of births being outside marriage in Greece to 55 % in Sweden. See, further, at: http://www.dailymail.co.uk/news/article-52829/Britain-highest-divorce-rate-EU.html#ixzz2zjeMawlD

  11. 11.

    Modified by the Human Embryology and Human Fertilisation Act 1990 which reduced the legal time limit for abortions from 28 to 24 weeks.

  12. 12.

    Ibid. There were also 7,400 abortions for non-residents carried out in hospitals and clinics in England and Wales in 2006 (7,900 in 2005).

  13. 13.

    See, further, at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/211790/2012_Abortion_Statistics.pdf

  14. 14.

    The author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014).

  15. 15.

    See, also, the Brazier Committee report which pointed out that any argument that payment is for the surrogacy and not for the baby is specious.

  16. 16.

    See, for example, Re C 2013, Re IJ (a child) 2011, Re L (a minor) 2010 and Re X and Y (foreign surrogacy) 2008.

  17. 17.

    See, www.surrogacy.org.uk/

  18. 18.

    It should be noted that, perhaps counter-intuitively, research findings suggest that for many children the experience of being in care has worked. See, for example, the report, ‘Looked after children and Offending: Reducing Risk and Promoting Resilience’, published in 2012 by The Adolescent and Childrens’ Trust (TACT) and the Centre for Research on the Child and Family at the University of East Anglia. This concluded that “going into care can prove effective and extremely beneficial in helping a young person deal with prior abuse and can protect against involvement in crime.”

  19. 19.

    See, Office for National Statistics at http://www.statistics.gov.uk

  20. 20.

    See, Dept of Education, National Statistics, at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/244872/SFR36_2013.pdf

  21. 21.

    See, Fostering Network at http://www.fostering.net/. In 2011, 12 % of adoptions from care were in favour of foster parents.

  22. 22.

    See, further, at: http://www.legislation.gov.uk/ukpga/2014/6/enacted

  23. 23.

    See, for example, Waterhouse, R. 2000. Lost in care: Report of the tribunal of inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974. London: The Stationery Office.

  24. 24.

    Ibid, para 4.14.

  25. 25.

    See, Department for Children, Schools and Families, National Statistics, September 2007.

  26. 26.

    See, further, at: https://www.gov.uk/government/news/record-number-of-children-adopted

  27. 27.

    See, It’s All About Me, developed by the accountancy firm Baker Tilly, Big Society Capital and the Consortium of Voluntary Adoption Agencies (CVAA). Local authorities will pay up to £54,000 for a successful adoption, in several instalments, ending after the placement has lasted for 2 years.

  28. 28.

    The report, from researchers at the University of Bristol analysing national data on 37,335 adoptions over a 12 year period, revealed a disruption rate of only 3.2 %. See, further, Selwyn, J. 2014. Beyond the adoption order: Challenges, intervention, disruption. Bristol: Department of Education.

  29. 29.

    Established in April 2014, under the chairmanship of Sir Martin Nairey, to support local authorities implement the Children and Families Act reforms and help adoption agencies stay on target in the recruitment of adoptive parents. Also, see, First4Adoption, the government-funded information service set up in April 2013 to help with adopter recruitment which, a year later, had recorded 96,000 contacts of which 6,800 people went on to engage with an adoption agency leading to a 34 % increase in adopters and a record 15 % rise in adoptions.

  30. 30.

    [2006] UKHL 43. See in particular the views of Lord Nicholls of Birkenhead, at para 2 and Baroness Hale of Richmond, at para 44.

  31. 31.

    See, public announcement by the Minister of Education in July 2013, of new government policy ‘Improving the adoption system and services for looked-after children’ which includes the intention to introduce “legislation that will make sure court hearings on children in care last no longer than 26 weeks,” at: https://www.gov.uk/government/policies/improving-the-adoption-system-and-services-for-looked-after-children

  32. 32.

    See, Re B-S (Children) [2013] EWCA Civ 1146, per Munby LJ, at para 49.

  33. 33.

    [2014] EWHC 270 (Fam), at para 40.

  34. 34.

    See, for example, Bean, P., and J. Melville. 1989. Lost children of the empire. London: Unwin Hyman Ltd.

  35. 35.

    See, Hayes, P. 2009. Intercountry adoption: A comparative analysis of its effect on domestic adoption rates, Full research report, ESRC end of award report, RES-000-22-1840. Swindon: ESRC.

  36. 36.

    Ibid, para 4.12.

  37. 37.

    For the findings of an outcomes survey of Chinese children adopted into England see Feast, J., M. Grant, A. Rushton, J. Simmonds, and C. Sampeys. 2013. Adversity, adoption and afterwards. London: BAAF.

  38. 38.

    Ibid, at p. 4.

  39. 39.

    See, the Department of Health, Adoption Law Review: Consultation Document, London, 1992, at para 19.2. See, further, at: https://www.gov.uk/government/publications?departments%5B%5D=department-of-health&publication_filter_option=consultations

  40. 40.

    See, for example, S (a child), Re (Rev 1) [2013] EWHC 1295 (Fam), [2013] All ER (D) 76 (Jun).

  41. 41.

    See, Department for Constitutional Affairs, Judicial Statistics Annual Report 2005, London, May 2006, at p. 71. See, further, at: https://www.gov.uk/government/publications/judicial-appointments-seventh-annual-report-2004-to-2005

  42. 42.

    See, Office for National Statistics.

  43. 43.

    See, the Adopted Children Register which is administered through the General Register Office and maintains a record of adoptions made on the authority of courts in England and Wales.

  44. 44.

    See, Rushton, A. 2007. Outcomes of adoption from public care: Research and practice issues. Advances in Psychiatric Treatment 13: 305–311.

  45. 45.

    See, Department for Children, Schools and Families, National Statistics, September 2007.

  46. 46.

    See, the Commission for Social Care Inspection, Adoption: Messages from Inspections of Adoption Agencies, London, 2006, para 2.8, at: http://www.thefreelibrary.com/Adoption+in+England%3a+messages+from+inspection.-a0166276477

  47. 47.

    See, for example, Logan, J., and C. Smith. 2004. Direct post-adoption contact: Experiences of birth and adoptive families. In Contact in adoption and permanent foster care: Research, theory and practice, ed. E. Neil and D. Howe. London: British Association of Adoption and Fostering.

  48. 48.

    See, BAAF, at: http://www.baaf.org.uk/res/statengland

  49. 49.

    Ibid.

  50. 50.

    See, Barn, R., and D. Kirton. 2012. Transracial adoption in Britain: Politics, ideology and reality. Adoption & Fostering 36(3–4): 25–37.

  51. 51.

    See, Adoption Support Services Regulations 2005 (SI 2005 No 691).

  52. 52.

    Note that under the Children and Families Act 2014, s 14(5):

    A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

    As the Court of Appeal stressed in re B-S Children [2013] EWCA Civ 114:

    “where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied” (approved and re-stated by the President in Re S (A Child) [2014] EWCC B44 (Fam), when he added:

    this deadline can be met, it must be met, it will be met. And remember, 26 weeks is […] a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.

  53. 53.

    See, preamble to statute.

  54. 54.

    See, Laming, L.J. 2003. The Victoria Climbié inquiry, the “laming report”. London: D.o.H.

  55. 55.

    See, the consultation process in relation to the Children Bill: the Green Paper Every Child Matters, 2003; and Every Child Matters: Next Steps published by the Department of Skills and Education, 2004.

  56. 56.

    Note, a Children’s Commissioner for Wales was instituted in 2001. Author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014).

  57. 57.

    See, Compactlaw at: http://www.compactlaw.co.uk/free_legal_information/adoption_law/adoptf16.html

  58. 58.

    They have increased by 122 % since 2009; 58 % of all orders are made in favour of foster parents.

  59. 59.

    See, In re McKerr [2004] UKHL 12; [2004] 1 WLR 807.

  60. 60.

    This legislation revokes and replaces the Adoption (Designation of Overseas Adoptions) Order 1973 and revokes the Adoption (Designation of Overseas Adoptions) (Variation) Order 1993.

  61. 61.

    See, Department of Health, Consultation Report by the Performance and Innovation Unit. 2000. Adoption: Prime Minister’s review. London: Cabinet Office.

  62. 62.

    Section 1(4).

  63. 63.

    For example, provisions s 1(3)(a), (d) and (c) of the 1989 Act are replicated in s 1(4)(a), (d) and (e) respectively of the 2002 Act.

  64. 64.

    [2010] EWCA Civ 344, at para 95.

  65. 65.

    See, Department of Education, An Action Plan for Adoption: Tackling Delay, London, 2012 at: http://www.trixonline.co.uk/website/news/pdf/policy_briefing_No-54.pdf

  66. 66.

    See, further, at: https://www.gov.uk/government/publications/an-action-plan-for-adoption-tackling-delay

  67. 67.

    See, further, at: https://www.gov.uk/government/publications/further-action-on-adoption-finding-more-loving-homes

  68. 68.

    See, The Hadley Centre for Adoption and Foster Care Studies. 2014. Beyond the adoption order: Challenges, interventions and adoption disruption. Bristol: Bristol University.

  69. 69.

    See the Children and Families Act 2014, s 12 and Sch 2 Part 1, para 21 amending the Children Act 1989, s 8.

  70. 70.

    See, The Commission for Social Care Inspection. 2006. Adoption: Messages from inspections of adoption agencies. London: CSCI.

  71. 71.

    By March 2004, the Adoption Register had compiled a database of records relating to more than 10,000 children and approved adopters and had facilitated the adoption placements of 50 children.

  72. 72.

    See, The Commission for Social Care Inspection. Adoption: Messages from inspections of adoption agencies. London: CSCI, op cit.

  73. 73.

    See, s 2(1) of the Adoption and Children Act 2002.

  74. 74.

    See, Department of Health. 2002. Adopter preparation and assessment and the operation of adoption panels: A fundamental review. London: Department of Health.

  75. 75.

    Note that the Panel cannot now act where the local authority is considering whether to place a child for adoption but only where the LA has already decided to do so: see Adoption Agencies (Panel and Consequential Amendments) Regs 2012, SI 2012/1410.

  76. 76.

    The Adoption of Children from Overseas Regulations 2001 require prospective intercountry adopters to submit to the same assessment process as prospective domestic adopters; since reinforced by the provisions of s 83 of the 2002 Act. Intercountry adoptions do not constitute a significant proportion of total annual adoptions in England & Wales; it is estimated that perhaps 300 such orders are made every year.

  77. 77.

    A decision in keeping with the policy statement made by Tony Blair, the then Prime Minister, on announcing the preparation of the Sexual Orientation Regulations 2007:

    there is no place in our society for discrimination. That is why I support the right of gay couples to apply to adopt like any other couple. And that is why there can be no exemptions for faith-based adoption agencies offering publicly-funded services from regulations which prevent discrimination.

    As posted on the Downing Street office website (no10.gov.uk).

  78. 78.

    See, the Equality Act 2006, s.81, together with the Equality Act (Sexual Orientation) Regulations 2007. A main effect of the Regulations was, subject to important exceptions, to make it unlawful for a person to discriminate on grounds of sexual orientation in the provision of goods, facilities or services to the public or a section of the public.

  79. 79.

    See, Catholic Care (Diocese of Leeds) v. the Charity Commission for England and Wales and the Equality and Human Rights Commission [2010] EWHC 520 (Ch); [2011] EqLR 597.

  80. 80.

    See, the Crime and Courts Act 2013 s 17(3) and Sch 10.

  81. 81.

    Established in April 2000, CAFCASS brings together the role, functions and staff of the Probation Service in private law proceedings, the Guardian ad Litem Panels in public law proceedings and the child section of the Official Solicitor’s Department. This non-departmental body now provides welfare reports and other support services in family proceedings throughout the three tiers of the court system and is accountable to the Lord Chancellor.

  82. 82.

    As explained by Fisher Jones Greenwood, Solicitors, at: http://www.fjg.co.uk/site/solicitors_services_individual/family_solicitors/about_children/adoption/court_process/

  83. 83.

    Author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014).

  84. 84.

    See, for example, MW v. Hertfordshire County Council [2014] EWCA Civ 405 where it was accepted that a guardian was not a neutral party.

  85. 85.

    See, however, Re Adoption Application (Adoption: Payment) [1987] 2 FLR 291 where it was recognised that such a contract was in itself valid.

  86. 86.

    See, s 47(9) and 49(4) of the 2002 Act which introduce a rule permitting the adoption after a child’s 18th birthday provided the application was lodged in court before that birthday.

  87. 87.

    [2007] 1 FLR 1223.

  88. 88.

    See, also, the ruling in Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035.

  89. 89.

    See, also, the National Adoption Standards.

  90. 90.

    The Commission for Social Care Inspection. 2006. Adoption: Messages from inspections of adoption agencies. London: CSCI, para 2.6.

  91. 91.

    The Adoption Act 2002, s 1(2).

  92. 92.

    Unlike the law in other U.K. jurisdictions, and in stark contrast to adoption law in Ireland where factors such as parental consent and marital status of parents continue to be largely determinative of a child’s availability for adoption.

  93. 93.

    See, further, Sloan, B. 2013. Conflicting rights: English adoption law and the implementation of the UN convention on the rights of the child. Child and Family Law Quarterly 25(1): 40–61.

  94. 94.

    Note that in The Law on Child Care and Family Services, Cm 62, January 1987, the government explained, at para 60:

    It is intended that “likely harm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur.

  95. 95.

    [2013] UKSC 9, [2013] 2 WLR 649.

  96. 96.

    [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at para 26. Also, see, Re G [2012] EWCA Civ 1233.

  97. 97.

    See, Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, at para 50.

  98. 98.

    Ibid.

  99. 99.

    Ibid, at para 51.

  100. 100.

    [2001] 1 FLR 611, at para 34.

  101. 101.

    Subject to the ruling in Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035.

  102. 102.

    In 2005, for example, of 5,280 adoptions 4,025 were in respect of children born outside marriage.

  103. 103.

    See, Re L (Adoption: Contacting Natural Father) [2007] EWHC 1771 (Fam).

  104. 104.

    (2002) 35 EHRR 25.

  105. 105.

    Ibid, at para 75.

  106. 106.

    As noted by the ECtHR in YC v. United Kingdom (2012) 55 EHRR 33, at para 141.

  107. 107.

    But see further the Adoption Agencies (Panel and Consequential Amendments) Regs 2012, SI 2012/1410.

  108. 108.

    If the application is made by a couple (whether married or unmarried), both of them must have been habitually resident in the British Isles for at least one year preceding the application or one of them must have been domiciled in a part of the British Isles.

  109. 109.

    See, also, In re P and others (AP) (Appellants) (Northern Ireland) [2008] UKHL 38 where the House of Lords explored and rejected arguments defending an approach that gave preference to married over unmarried applicants.

  110. 110.

    See, s 144(4)(b) of the 2002 Act which permits applications from ‘two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’.

  111. 111.

    [2010] EWHC 964.

  112. 112.

    See, further, the Suitability of Adopters Regulations 2005.

  113. 113.

    See, s 42(5) and (6). Previously the care period for such an applicant was only 13 weeks.

  114. 114.

    [2006] 1 FLR 35.

  115. 115.

    See also Soderback v. Sweden [1999] 1 FLR 250 and Re P (Step-Parent Adoption) [2014] EWCA Civ 1174.

  116. 116.

    See, Re C [1998] 2 FCR 641 and the case of ‘the internet twins’.

  117. 117.

    The Houghton report, op cit, had first recommended that such services be available and this was subsequently given effect by s 1 of the Children Act 1975.

  118. 118.

    Reg 7(1) of the Adoption Agencies Regulations 1983 specifically required adoption agencies to provide counselling services to relinquishing mothers.

  119. 119.

    Reg 12(1) of the Adoption Agencies Regulations 1983. Also, see, s 54 of the 2002 Act.

  120. 120.

    See, for example, W v. Essex County Council [2000] 1 FCR 568 and A and Another v. Essex County Council [2002] EWHC 2707 (QB). Note, however, that inaccurate information will not provide grounds for revoking an order. In J and J v. C’s Tutor [1948] SC 636 the Scottish Court of Session refused a couple’s plea that they had adopted a child in error induced by misrepresentation and applied for the order to be set aside. They believed they had adopted a healthy child but the child suffered from a severe brain injury sustained at birth. The Court acknowledged the hardship but the relevant adoption statute did not empower the Court to set aside the adoption on such a basis.

  121. 121.

    Section 52 of the 2002 Act.

  122. 122.

    Section 20.

  123. 123.

    Section 21(1). Note that in 2013 there was a fall in the number of such orders which may be partially attributable to Sir James Munby’s criticism of social work practice in preparing for non-consensual adoption proceedings (see Re B-S (Children) [2013] EWCA Civ 1146).

  124. 124.

    Section 19(1)(a) and (b).

  125. 125.

    Section 21(2)(a) and (b).

  126. 126.

    Section 21(3).

  127. 127.

    Section 25(2).

  128. 128.

    Section 25(3).

  129. 129.

    Section 30.

  130. 130.

    Section 34.

  131. 131.

    [2008] EWCA Civ 1333.

  132. 132.

    See, Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at para 125.

  133. 133.

    (2012) 55 EHRR 33, at para 134.

  134. 134.

    Ibid, at para 135.

  135. 135.

    Section 24.

  136. 136.

    Section 24(2)(a).

  137. 137.

    Section 24(3).

  138. 138.

    Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 [2007] 2 FLR 1069.

  139. 139.

    M v. Warwickshire County Council [2007] EWCA Civ 1084 [2008] 1 FLR 1093.

  140. 140.

    As stated in NS-H v. Kingston upon Hull City Council and MC [2008] EWCA Civ 493, [2008] FLR 918, para 27.

  141. 141.

    [2007] EWCA Civ 616.

  142. 142.

    [2013] EWCA Civ 431.

  143. 143.

    Section 24(2)(b).

  144. 144.

    See, Re P; K and K v P and P [2005] 1 FLR 303.

  145. 145.

    Section 44 of the 2002 Act.

  146. 146.

    See, Performance and Innovation Unit. 2000. Prime Minister’s review of adoption. London: Cabinet Office, at Annex 4.

  147. 147.

    Subject to the ruling in Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035.

  148. 148.

    See, Re S; Newcastle City Council v. Z [2005] EWHC 1490 (Fam).

  149. 149.

    Section 1(4)(f) of the 2002 Act as amended by the 2014 Act.

  150. 150.

    See, Re R [2001] 1 FCR 238 where the court upheld a birth mother’s veto on any such overtures being made to her siblings or other relatives by the local authority.

  151. 151.

    See, further, the Adoption Agencies (Panel and Consequential Amendments) Regs 2012, SI 2012/1410.

  152. 152.

    Section 52(4) of the 2002 Act.

  153. 153.

    Section 37(a).

  154. 154.

    Section 27(4).

  155. 155.

    Section 27(3).

  156. 156.

    Section 27(5).

  157. 157.

    Ten weeks in relation to a looked after child (s 42(2) of the 2002 Act).

  158. 158.

    See, Performance and Innovation Unit. Prime Minister’s review of adoption, op cit, where it is stated that “at least 70 % of adopted children have some form of contact with members of their birth families” (para 3.141).

  159. 159.

    Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646.

  160. 160.

    [2001] 1 FLR 745.

  161. 161.

    Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam).

  162. 162.

    [2007] EWHC 1771 (Fam).

  163. 163.

    Adoption and Children Act 2002, s 47(5).

  164. 164.

    The test must be reasonable, the following are now held to be excessive: “exceptionally rare circumstances” in Re W (Adoption; Set aside and leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153; and “stringent” in Re C (A Child) [2013] EWCA Civ 1431.

  165. 165.

    [2007] EWCA Civ 616, [2007] 2 FLR 1069.

  166. 166.

    This must now be read subject to the ruling in Re B-S (Children) [2013] EWCA Civ. 813.

  167. 167.

    [2013] EWCA Civ. 813.

  168. 168.

    Re B-S (Children) [2013] EWCA Civ 1146.

  169. 169.

    [2013] UKSC 33, [2013] 1 WLR 1911. Also, see, Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

  170. 170.

    See, Munby LJ in Re B-S (Children) [2013] EWCA Civ. 813, at para 31 where he cites such judicial concern expressed in: Re V (Children) [20134] EWCA Civ 913 (Black LJ); Re S, K v. The London Borough of Brent [2013] EWCA Civ 926 (Ryder LJ), Re P (A Child) [2013] EWCA Civ 963 (Black LJ) and Re G (A Child) [2013] EWCA Civ 965 (McFarlane LJ).

  171. 171.

    [2013] EWCA Civ 1018, at para 20.

  172. 172.

    See, Re P (A Child) [2013] EWCA Civ 963, per Black LJ, at para 107.

  173. 173.

    See, Re B-S (Children) [2013] EWCA Civ. 813 per Munby LJ, at para 44.

  174. 174.

    Ibid, at para 22.

  175. 175.

    In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911.

  176. 176.

    See, Re D (A Minor)(Adoption order: validity) [1991] 2 FLR 66.

  177. 177.

    Section 31(9) of the 1989 Act as amended by s 120 of the 2002 Act.

  178. 178.

    See, Re B [1996] 1 FLR 667 where an appeal by a local authority, supported by the guardian ad litem, argued that the judge at first instance had erred in law in not acting on the unanimous opinions of the experts, all of whom urged that the child be placed for adoption. The court dismissed the appeal, citing with approval the comment of Lord President Cooper in Davie v. Magistrates of Edinburgh 1953 SC 34, 40 that “the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert” per Ward LJ, at pp. 669–670.

  179. 179.

    See, for example, Re D (Minors)(Adoption by Step-parent) (1981) 2 FLR 102.

  180. 180.

    In re Agar-Ellis, Agar-Ellis v. Lascelles (1883) 24 ChD 317.

  181. 181.

    See, Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233 [2013] 1 FLR 677, at para 26.

  182. 182.

    [2005] EWHC 1490 (Fam), [2007] 1 FLR 861. Also, see, Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, per Scarman LJ, at paras 244–245.

  183. 183.

    Ibid, at para 56.

  184. 184.

    Particularly the judgments of the ECtHR in K and T v. Finland (2001) 36 EHRR 255, R and H v. United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236, and YC v. United Kingdom (2012) 55 EHRR 967.

  185. 185.

    Section 1(6) of the 2002 Act requires the court to be satisfied that adoption is a better option than any other available to the court while s 44(2)–(6) requires certain conditions to be met.

  186. 186.

    See, SB v. A County Council; Re P [2008] EWCA Civ 535.

  187. 187.

    Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at para 126.

  188. 188.

    See, also, Special Guardianship Regulations 2005, SI 2005 No. 1109.

  189. 189.

    Ibid, Regulation 21, which sets out the matters to be dealt with in all reports for the court.

  190. 190.

    The majority of special guardianship orders are made in favour of former foster carers. By April 2007, some 359 had been made: 261 in public law proceedings, 89 in private and 9 in adoption proceedings. By 2013 the total had risen to 2,740.

  191. 191.

    [2007] 1 FLR 1116.

  192. 192.

    Re S (Special Guardianship Order) [2007] EWCA Civ 54.

  193. 193.

    Ibid, at para 49.

  194. 194.

    See, Re S (Special Guardianship Order) [2007] EWCA Civ 54 [2007] 1 FLR 819; Re AJ (Special Guardianship Order) [2007] EWCA Civ 55 [2007] 1 FLR 507; Re M-J (Special Guardianship Order) [2007] EWCA Civ 56 [2007] FLR.

  195. 195.

    See, further, Chap. 4, sections 66–76, Status of Adopted Children, the Adoption and Children Act 2002.

  196. 196.

    See, s 1(5) of the British Nationality Act 1981. However, if the child is adopted in a “designated list” country whose adoption orders the U.K. Government recognises, the child will not automatically receive British citizenship and will have to apply for it to the Home Secretary. Countries included in this designated list are predominantly Commonwealth countries, United Kingdom Dependant Territories and E.U. Member States, whose adoptions the U.K. Government have deemed to be capable of recognition. The fact that U.K. intercountry adoption legislation does not provide automatic British citizenship for children adopted by British citizens in designated countries has attracted criticism.

  197. 197.

    See, sections 69–73 of the 2002 Act.

  198. 198.

    See, Halsbury’s laws of England, 3rd ed., 1956, 21: 239, at para 518.

  199. 199.

    [1999] 1 FLR 907.

  200. 200.

    See, para 30 of Sched 4 of the Sexual Offences Act 2003, which amends the 2002 Act to continue the legal exception to incest where sexual relations occur between an adopted brother and sister aged 18 or more. Also, s 74(1) leaves intact the traditional rule relating to consanguinity and prohibited degrees of relationship.

  201. 201.

    [1995] 1 FLR 1.

  202. 202.

    Ibid, at p. 7.

  203. 203.

    See, for example, Cameron v. Gibson [2005] ScotCS CSIH83 (24 November 2005) when the Inner House of the Court of Session in Scotland reversed an earlier decision of the Court of Session in Cameron v. Gibson [2003] ScotsCS 298 (2 December 2003) and declared invalid a 1950 adoption decree because the proposed adoptee reached 21 years of age hours before the adoption order was made and the relevant legislation required that he be under 21 when the order was made.

  204. 204.

    [1995] 2 FLR 1.

  205. 205.

    Following the 2002 Act, the Department of Health issued a consultation paper entitled The Draft Adoption Support Services (Local Authorities)(Transitory and Transitional Provisions)(England) Regulations and Draft Accompanying Guidance, December 2002. See, also, Department of Health, Providing Effective Adoption Support.

  206. 206.

    Also, see, the Adoption Support Services Regulations 2005.

  207. 207.

    See, further, The Hadley Centre for Adoption and Foster Care Studies. 2014. Beyond the adoption order: Challenges, interventions and adoption disruption. Bristol: Bristol University.

  208. 208.

    See Re X [2014] EWFC 33.

  209. 209.

    This facility has a history of being very popular; by 1999 some 70,000 people had sought adoption related information from the Registrar General.

  210. 210.

    See, BAAF, at: http://www.baaf.org.uk/res/statengland

  211. 211.

    Indexes to the Adopted Children’s Register are available for consultation at the Family Records Centre, 1 Myddleton Place, London, EC1R IUX. For information about applying for copies of adoption certificates, see further at: https://www.gov.uk/adoption-records

  212. 212.

    Established by Sched 10 of the Children Act 1989.

  213. 213.

    See, BAAF, at: http://www.baaf.org.uk/res/statengland

  214. 214.

    See, further, the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005, at: http://www.legislation.gov.uk/uksi/2005/888/regulation/9/made

    Also, see, https://www.gov.uk/government/news/relatives-of-adopted-adults-now-able-to-trace-family-tree.

  215. 215.

    See, further, the Adopted Children and Adoption Contact Registers 2005.

  216. 216.

    See, further, the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005.

  217. 217.

    For further information on the services provided by such agencies see www.adoptionsearchreunion.org

  218. 218.

    See, further, the Dept of Education, Independent Review Mechanism, at: http://www.independentreviewmechanism.org.uk/adoptionrecords

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  1. Queensland University of Technology, Australian Centre for Philanthropy and Nonprofit Studies, Brisbane, QLD, Australia

    Kerry O’Halloran

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O’Halloran, K. (2015). England & Wales. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_6

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