The Adoption and Children Act 2002 - guide to the Act
When was the Act Passed?
The Adoption and Children Act 2002 received Royal Assent and therefore became law on 7th November 2002. However, the Act finally came into full effect on 30th December 2005.
The first stage of the Act dealing with Local Authorities duties to provide an adoption service and support services was implemented in April 2003. The second stage relating to inter-country adoptions came into effect on 1st June 2003 and the third stage relating to Adoption Support Services was implemented on the 31st October 2003. Changes to parental responsibility were implemented on 1st December 2003. The changes to the adopted children register took place on 30th December 2005.
What are the Provisions of the Act?
To overhaul and modernise the legal framework for domestic and inter-country adoption and in particular to replace provisions of the outdated Adoption Act 1976.
To put adoption law in line with the existing provisions of the Children Act 1989 to ensure the child's welfare is the paramount consideration in all decisions relating to adoption.
To place a duty on local authorities to maintain an adoption service and provide adoption support services.
To provide for adoption orders to be made in favour of single people, married couples and unmarried couples.
To introduce a new independent review mechanism for prospective adopters who feel they have been turned down unfairly.
To provide a new system for access to information held in adoption agency records and by the Register General about adoptions, which take place after the Act comes into force.
To provide additional restrictions on bringing a child into the UK for adoption.
To provide restrictions on arranging adoptions and advertising children for adoption.
To cut delays in the adoption process by establishing an Adoption and Children Act Register to suggest links between children and approved adopters.
To bring in new court rules governing the making of adoption orders and measures requiring the courts to draw up timetables for adoption cases to be heard. Freeing orders are now replaced for "placement orders".
To introduce a new special guardianship order for children for whom adoption is not a suitable option but who cannot return to their birth families.
To provide that an unmarried father can acquire parental responsibility for his natural child where he and the child's mother register the birth of their child together. (see the children section on the homepage for further information).
To introduce arrangements for step-fathers to acquire parental responsibility.
What Is The Definition Of An Adoption Agency?
This means either a Local Authority or a registered Adoption Society. It does not include adoption agencies abroad.
How do the Courts Ensure the Child's Welfare is Paramount?
The Act provides a welfare checklist which must be applied by the court and adoption agencies which includes:
a) The child's wishes and feelings (having regard to his age and understanding).
b) The child's particular needs (e.g. physical or educational).
c) The effect ceasing to be a member of the original family will have on the child.
d) The child's characteristics, such as age, sex and background.
e) The harm or risk of harm to the child. (This includes any impairment to the child's health or development as a result of witnessing the ill treatment of another person).
f) The relationship of the child with relatives and "other relevant people" (e.g. the benefits to the child of the relationship continuing, the ability of the relatives to provide the child with a secure home).
A court may only make an adoption order where it considers that it would be better for a child than making no order.
Who Can Apply For an Adoption Order Under the Act?
a) Single people.
b) Married couples applying jointly.
c) Unmarried couples applying jointly (whether of different sexes or the same sex).
d) A Step-Parent (provided the child has had his/her home with them for at least six months preceding the application).
e) Foster carers (provided the child has had his/her home with them for at least 12 months preceding the application, although they can apply for permission from the court to apply within a shorter period).
f) Lesbian and gay couples.
g) Others not fitting into the above category (e.g. a partner of the child's parent) - the child must have had his/her home with them for at least three years preceding the application.
To be considered as adoptive parents, a "couple" (married or unmarried) would need to prove they have a stable and lasting relationship and that they can provide a loving family environment for a child. There is also a continuing restriction as to age and domicile.
Are There Any Conditions Attached to an Adoption Agency Placing a Child for Adoption?
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.
If the adoption is through an adoption agency, the adoption application cannot be lodged until the child has been with the applicants for at least 10 weeks.
Either the permission of the birth parents (or if this is not forthcoming) then a "placement order" from the court which would authorise the local authority to place the child with adopters they have selected.
Can an Adoption Agency's Decision not to Place a Child for Adoption be Challenged by the Applicants?
The Act provides for the establishment of a review procedure in respect of decisions made by adoption agencies regarding adoption. A person in respect of whom a decision has been made regarding adoption will be able to apply to a review panel for a review of the decision. The intention is to give the prospective adopters a right to request a referral to a panel run by an independent organisation where an adoption panel indicates that it is minded to turn down their application to adopt.
It is also intended that this independent review mechanism will also be used to review decisions made by adoption agencies concerning the disclosure of protected information held by the agency, where the Agency has a discretion under the Act as to whether to disclose such information.
What Mechanisms are in Place Under the Act for Adopted Adults, Birth Parents and Others to Obtain Information About the Adoption?
The Act introduces new provisions regarding the information that must be kept by:
a) Adoption agencies in relation to a person's adoption.
b) Information that adoption agencies must disclose to adopted adults on request. ('Protected information')
c) Information that courts must release to adopted adults on request.
d) Information that adoption agencies may release to adopted adults, birth parents and others.
However, these provisions will only apply to adoptions that take place after the Act was implemented.
An adopted adult can apply to the appropriate adoption agency for 'protected information' about a person involved in an adoption, such as the adopted person, his birth parents or the adoption social worker.
'Protected information' is defined as any identifying information sought by someone other than the person it is about. It would include names, residential, educational and employment addresses, case records, legal and medical information as well as photographs and audio-visual material. It also includes any information held by an adoption agency which, was obtained by the Register General or any other information that would enable an adopted person to obtain a certified copy of his birth record or any information about an entry in the Adoption Contact Register about the adopted person.
Adoption agencies have a discretion to disclose information, which is not 'protected information', to an adult adopter or other persons including the birth parents - e.g. background information about the child's progress.
An adoption agency, which discloses information in contravention of the Act commits a criminal offence and will be liable on conviction to a fine.
The Act also enables the High Court to order, in exceptional circumstances, that an adoption agency withhold information which might otherwise enable the adopted adult to obtain a certified copy of his/her birth record.
The adoption agency is to become the single point of access to identifying information as it is believed that they are the bodies best placed to provide the support and counselling needed.
For adoptions that took place before the Act came into force, provisions are made to allow the Secretary of State to introduce measures which would allow adoption support agencies to provide intermediary services to assist adopted adults to obtain information about their adoption and facilitate contact between them and their birth relatives.
What Is A Placement Order?
This is a court order authorising a Local authority to place a child for adoption with prospective adopters where the child is in care or likely to be taken into care, or has no parent or guardian. If there is a parent or guardian of the child they must have consented to the child being placed for adoption, unless the court is satisfied that their consent should be dispensed with because it would be in the welfare of the child to do so.
Placement orders can be revoked on the application of any person, but if that person is not a local authority or the child themselves, the permission of the court is required to make the application and the child must not have been placed for adoption by the local authority.
Once a Placement Order is made parental responsibility for that child will pass to the local authority until the child is placed with the prospective adopters at which time parental responsibility will pass to them.
Any parent or guardian or relative who wishes to have contact to the child can only do so by applying for a contact order under the Act.
What Are The Adopted Children Register And The Adoption Contact Register?
The Adopted Children Register is to be a register of adoptions taking place in England & Wales and will be kept in the General Register Office, but the Register itself is not open to public inspection or search. However, the index of the Register is available for inspection and anyone can apply on payment of a fee for a certified copy of an entry in the register relating to a child who has reached 18.
An adopted person can apply to obtain a copy of their birth certificate but the Local Authority must make the application.
The Adopted Contact Register is also a register to be kept at the General register office and again the register itself is not available for public inspection and search but it is possible to apply for certified copies of entries in the register.
The register will contain information about adopted persons who have given notice expressing a wish to make contact with their relatives and who have reached 18.
What Are The New Provisions On Overseas Adoption?
The Act allows arrangements to be put in place for the recognition in England and Wales of overseas adoption (known as 'inter-country adoptions'). The UK has recently ratified (put into effect) the 1993 'Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption' (The Convention). This provides for:
Establishing safeguards to ensure that inter-country adoptions take place in the best interests of the child.
Establishing a system of co-operation between countries who have signed the Convention to prevent the abduction, sale or traffic in children.
To recognise inter-country adoptions in the countries who have signed the Convention (see www.hcch.net for a full list of those countries).
The countries that have signed the Convention must ensure, amongst other things:
That any child from their country is adoptable.
Consider whether they should be placed with adoptive parents within their country.
Consider whether adoption overseas is in the child's best interests.
Ensure that any consent by the natural parents has been given freely and that they understand the effect of their consent.
Ensure that no payment has been made to obtain the consent and that the mother has given consent after the birth of the child.
The authorities in the country where the child is to be brought must ensure that the prospective adopters are eligible and suitable to adopt, that they have consented and that the child is authorised to enter and live permanently in that country.
No unsupervised contact is to take place between the prospective adopters and the natural parents until the above requirements have been met. This is to avoid the natural parents being pressurised by the prospective adopters.
To apply for an overseas adoption, applicants must first apply to the central authority in the State in which they reside who will decide if they are eligible and suitable to adopt (This is the Department for Children, Schools and Families). The central authority will then prepare a report for the State where the child resides which will set out the family, medical and social background of the applicants and their ability to undertake an inter-country adoption. The report will also set out the characteristics of the type of child the applicants could care for (in the UK this report will usually be undertaken by a Local Authority or an accredited adoption society).
The State in which the child resides must then prepare a report about:
The child's adoptability
Family and social background of the child
Whether the child has any special needs
Whether any consent to adoption has been given freely and
Whether the adoption is in the best interests of the child.
Once these requirements are satisfied a child can be transferred to the State where the prospective adopters reside to allow the legal adoption process to take place. In the UK the adoption must then be registered at the Office of the Registrar General for England and Wales. An application can be made for the child to receive citizenship from the date of adoption.
It is an offence for parents or prospective adopters to advertise their wish to adopt or for anyone other than an adoption agency to advertise and arrange adoptions. The penalty for this offence is 3 months imprisonment and/or a fine of £5,000.
Those who illegally bring a child into the UK to adopt will face a 12-month prison sentence and/or an unlimited fine.
What Is A Special Guardianship?
This is a guardian who has been appointed by the court in adoption proceedings or in any family proceedings where a question arises with respect to the welfare of the child. The Special Guardian then acquires parental responsibility for the child and can usually exercise parental responsibility to the exclusion of any other person with parental responsibility, (apart from another Special Guardian).
A Special Guardian must be over 18 and must not be the parent of the child.
Those who can apply to be Special Guardians are:
a) Any guardian of the child
b) A person in whose favour a residence order has been made
c) A local authority foster parent with whom the child has lived for at least one year
d) Any person who the child has lived with for at least 3 years
e) Any person who has the consent of someone with a residence order or parental responsibility for the child, or a local authority (if a care order has been made) to apply.
What Support Services Must Local Authorities Provide?
All Local Authorities must provide as a minimum, the following adoption services:
a) Counselling, advice and information
b) Financial support
c) Support groups for adoptive families
d) Assistance with contact arrangements between adopted children and their birth relatives
e) Therapeutic services for adopted children
f) Help to ensure the continuance of adoptive relationships
g) Provision of an adoptive support services advisor and adoption support plans for adoptive families
h) Providing an assessment of the needs of adopted children and their families for adoption support services.
What Are The Changes That The Act Makes To The Children Act 1989?
1. A father who is registered on a child's birth certificate will acquire parental responsibility. (This only applies to births registered on or after 1st December 2003).
2. A step-parent can acquire parental responsibility if both the natural parents enter into an agreement with the step-parent to give the step-parent parental responsibility or if the court makes an order on the step-parent applying for parental responsibility.
3. The restriction on foster parents making applications for residence, contact parental responsibility orders etc unless the child has been with them for 3 years has now been reduced to one year.
4. The meaning of "harm" for the purposes of care and supervision orders has now been extended to include the child suffering impairment due to 'seeing or hearing the ill-treatment of another' (e.g. domestic violence involving the parents).
Methods of Adoption - who can adopt?