Child's Welfare in the Adoption Process - Dissertation Example

? The emphasis upon the paramount of the child's welfare in section of the Adoption and Children Act 2002 is misplaced. Clearly the finality of adoption means that parental consent and the rights of the natural parents deserve equal weight and attention. This should be the case throughout the adoption process.” Discuss Word Count (except bibliography and Heading) 4000 words Introduction The Courts in England and Wales, under the Adoption Act 1976 had regarded the “welfare of the child” as first consideration in litigation pertaining to adoption. However, after the introduction of the Adoption and Children Act 2002, the court’s view has shifted from the first consideration to the paramount consideration as regards to the child’s welfare. This is mainly to bring the English legislation in matching with the Article 3 and 19 of the United Nations Convention on the Rights of Child which demands member states inter alia to make sure that the best interest of the child should be accorded paramount significance in the contour of adoption. However, by giving paramount importance to the welfare, this paper will be analysing whether the parental consent and the rights of the natural parents deserve equal weight and attention or whether it has been relegated to the backside by the Adoption and Children Act 2002 in an exhaustive manner1. Whether Child Welfare alone is to be given of a paramount significance thereby disregarding the parental consent and the rights of the natural parents under the Adoption and Children Act 2002? - An Analysis The law on adoption was completely transformed with the effect from 30 December 2005 through the introduction of the Adoption and Children Act 2002 in UK. The Adoption and Children Act 2002 tries to address the question of parental consent of the natural parents and the question of the best interest of the child which are tackled at an early stage. Thus, child’s welfare is given a paramount significance in the Adoption and Children Act 2002 and has introduced a new checklist for the adoption which includes the long-run impacts of adoption. As per the Adoption and Children Act 2002, if the welfare of a child requires it, the court can dispense with the requirement of consent of the natural parent to the placement and adoption of their child. As held in Webster v Norfolk County Council2, adoption is a process which engrosses the separation of legal relation between the natural parents and a child thereby creating a new kinship with the adoptive parents. Under ss 50,114(4) of the Adoption and Children Act 2002, the definition of those who could adopt a child which includes unmarried couples also, and the 2002 Act3 has made the welfare of the adopted child as a paramount while in the 1976 Act 4, welfare of the child was the first priority of an UK’s court. Under the 2002 Act5, the procedure for the adoption has also been changed6. Section 1 of the Adoption and Children Act 2002 is a dominant provision that will be applicable whenever an adoption agency or a court is taking any conclusion as regards to the adoption of a child. This comprises any choice by the court about the waiver of permission by parent or to pass an order under section 26 of the Adoption and Children Act 2002 for a contact order. In subsection (4) of the Act7, a welfare checklist is detailed out ,which must be taken into account either by the agency or by the court in deciding the best interest of the child in any choice pertaining to adoption. Paramountcy standard connotes that child’s welfare is supreme when making any choice about the upbringing of a child. Due consideration should be given by the court also about the feelings and wishes of the child and shall refrain from making an order of placement and adoption unless no other option is available .Thus , every initiative should be undertaken to protect the child’s family and home associations8. Section 1 of the Adoption and Children Act 2002 states that paramount significance should be given to the following factors by the adoption agency and by the court ,whenever, they have to make a decision as regards to the adoption of a child. Overriding significance should be given by the above to a child’s welfare for the whole of their life. Any delay in arriving at a decision as regards to the adoption of a child either by a court or by the adoption agency may bias the child’s welfare. The above agency should take into account the child’s understandings and their age and also their feelings and wishes while making an adoption decision. Should look into the child’s special needs The probable impact on the child’s psychology of having ceased to be a member of their blood family and turn to be the child of the adopted parents for rest of their life. The court or the agency should pay more attention to the child’s sex, age, environment and any of the child’s traits which the agency or the court may consider appropriate. The court or the agency should consider the level of harm witnessed or is at risk of witnessing by the child within the meaning of the “c.41 of the Children’s Act 1989.” The court or the agency should give due consideration to the child’s relationship with relatives and with any other individual as regards to whom the agency or the court regards the association to be particular, which includes the probabilities of any such association prolonging and the value to the child in effecting so. The agency or the court should give due regard to the eagerness and ability of any of the relatives of the child to offer the child with a safe background in which the child can grow and to cater the child’s requirements like educational or physical health issues. The court or the agency should give due weight to feelings and wishes of any of the relatives of the child or any such individual who is close relatives of the child. Both the adoption agency and the court should offer due consideration before taking a decision for the adoption, the child’s racial background, religious practices and linguistic and cultural scenarios. The adoption agency or the court should give due weightage to the whole ambit of authorities available to it in the child’s case, and the court should desist in making an adoption order unless it is satisfied that sanctioning an adoption order would be more beneficial to the child than not by doing so9. In Re M (A Minor)10, for instance, A and B are unmarried couples, and B is now pregnant. A is well-known for his short temper and violent activities. B fears that A will ill-treat the child once it is born. B is more worried about the A’s alcoholism and violence as he could not have self-control himself while under the influence of alcohol. In this case, it was held by the House of Lords that when the child is really suffering or is probable to suffer, poignant hurt is the juncture at which the local authority can initiate protective steps. In such scenario, the court will consider whether B will be an unsuitable parent as she has a worry over the welfare of the child, and also she does not possess any earlier bad parenting. However, B is expressing her concern over A and his unpredictable and violent character. Obviously, A’s violent character, if it is shown against the child, is bad-tempered and unacceptable. Under this scenario, the court will not endeavour to issue an order merely the threshold yardsticks are met. S 1(5) of the Act 11speaks about the non-interventionist policy which connotes that the court will pass order only if it feels that the things would become worse if it does not act. Further, under S 1(2), the court is obliged to act without any delay and under the S 1(1)12, the chief significance is to be shown to the welfare of the child. Thus, the welfare of the unborn child of B will, if it is born will be of paramount consideration and will decide whether or not a care order will be issued by the court. Obviously , the child’s welfare is normally best served by its nurturing in a family background ,but while B remains still not decided to live with A and grave anxiety will be shown over the capacity of B and A to promote the welfare of the child under the given scenario13. In Re: A (a child) (adoption)14 case, a foster mother who was working with a local authority and wishes to adopt a child as she was looking after that child for more than 9 months. The foster mother is under obligation to seek the leave of the court before she could make an application for an adoption order from a court under s 42 of the Adoption and Children Act 2002 as the child had remained with the foster mother for less than 12 months. The local authority, for the best reasons known to them acted swiftly before the foster mother could apply for leave and obtained a placement and care order from the Family Proceedings Court. Later, the child was given to another adopter thereby neglecting the wishes the foster mother. Aggrieved by this, the foster mother made an application to a County Court for leave to apply for an adoption order. In the County Court, the opinion of the Guardian of the child was advanced, and the Guardian wished that the child be with the care of foster mother instead of given to another intended adopter. The Judge of the County Court placed more weight to the reasons of the local authority for its objections to hand over the child to the foster mother and hence the foster mother’s application for leave to apply for getting an adoption order was declined. Aggrieved by the order of the County Court, the foster mother applied to the Court of Appeal which consented to the appeal and permitted the foster mother to make an application for the leave to apply for an adoption order. In this case, the Court of the Appeal was of the view that though welfare of the child is a relevant point under the 2002 Act15, it is not the dominant or paramount consideration. Thus, the court has to consider whether the applicant has real hope for success for a leave and whether an adoption order would best serve the welfare of the chid. The above case did not find a solution, whether the child can be given under adoption to the foster mother .It also highlights the partisan attitude of the local authority’s refusal to the foster mother as she was not allowed as a party to the proceedings in the family court16. In Re G (A Minor)17 , Lord Justice Balcombe held that whenever there is a question of child’s upbringing , the court will give paramount considerations to the child’s welfare and not the feelings of the natural unmarried parent. In this case, an unmarried father sought for locus standi for parental responsibility for his daughter which he would have acquired automatically if he had married her companion. The court observed that for making such an order will help the father to work for the advancement of his daughter’s welfare and to assume the role of the natural father in her future despite the fact that it did not offer the father any privileges of either contract or residence18. Parental Consent Section 19 of the Act19 deals with the provision for placing a child for adoption with consent of the parents. Consent of each parent is essential for placement of child’s as an adoption agency should get first consent from the parents to place a child for adoption, and it is essential that consent should not be withdrawn subsequently. Withdrawal of consent will be permitted at any time before an application for the adoption order is made20. Section 52 of the Act21 explains the procedure relating to consent. It specifies that in a specific form, consent should be given with full awareness of what is involved and should be witnessed by family proceeding officer or CAFCASS. Under section 52(1) of the 2002 Act22, parental consent can be relaxed only under two scenarios viz. Where the parent cannot be identified or is not capable of giving their consent. Section 1 (2)23 specifies that if the welfare of child needs that the consent of the parents to be waived off.24 In SB v County Council25, the Court of Appeal has declined to apply an improved welfare test. In this case , the judge was of the opinion that welfare checklist detailed in section 1 of the 2002 Act 26requires that paramount consideration has to be given to the child’s welfare, and hence he did not consider the consent of the mother of the child as of paramount consideration. In Re C (A Child) (Adoption: Duty of Local Authority)27, Arden LJ was of the view that there is a necessity to give weight to the welfare of the child throughout his life, mirroring a “comprehensive meaning” welfare that had been expressly spelled out in the legislation through the s 1(4) (c) of Act28 for the first time. According to Professor Kerry O’ Halloran29, the adoption process is based entirely on a consensual process in France as well as the rest of the Europe whereas in UK, in opposition, it appears that parental consent is to be dispensed with once the adoption process is regarded to be in the best interest of the child. In UK, the interests of the natural parents are further vindicated by the procedural needs, so that the litmus test for ignoring the consent is occasionally omitted at the fag end phase of the adoption process. In Re C (A Child) (Adoption: Duty of Local Authority)30, Arden LJ termed the placement with consent of the parents as a “fast track” adoption procedure. Parental consent can be overlooked under s 21(2) of the Act31 if the child is already is under the compulsory state care due to the fact that of failure on the part of the parents to offer reasonable care to the child. Fortunately, the parental consent can be overlooked only if a consent order is obtained from the court or when there is a significant harm to the child’s welfare. This offers some safeguard to the interest of the parents. Nonetheless, the parents are required to approach the court through leave application so as to have a placement order cancelled under s 21(3) of the Act32. However, parent’s right is at jeopardy as only under limited scenarios, the leave is granted by the court for the revocation of a placement order33. In UK, a biological father who is yet to be married to the mother of a child does not get parental accountability mechanically as per current law provision. He may obtain the same by getting his name registered on his child’s birth certificate, or he may enter a parental responsibility contract with the mother of the child or through a court order, or he may have to see that PR is conferred on him. A biological father’s consent may not be warranted during the course of adoption. This practice can be said to be mother-cantered with probable damaging outcomes for both the biological father and the child. Thus, unmarried fathers have been stripped off with the consent requirement which highlights and emphasises the concept that the relationships of such unmarried fathers with that of their biological children are supposed to be not so significant than that of the birth mothers. This stresses the need to reform the 2002 Ac34t to have more justified rights between unmarried fathers, child and mothers. This is the need of the hour as there have been ever increasing figures of children born outside the wedlock, and 2002 Act35 should be amended to offer more recognition to the biological parent without parental accountability in the adoption process36. Parental Rights At the time of child’s birth, if parents are married, then, both get automatically parental rights and accountabilities over the child- until a court order deprives the same from one or both. Thus, both the parents have analogues say how the child is to be brought up till he attains the age of 18. Either of the parent can register the birth of the child or can make a choice as regards the child , what kind of education the child should have or what kind of medical facilities should he receive. In case of divorce, one of the parents may have the chance to lose his accountabilities and rights. Both of the parents may strip off their rights towards a child if a child is taken into care and order for an adoption is granted by a court to somebody37. Lord Fraser, in his notorious verdict in Gillick v West Norfolk and Wisbech Area Health Authority 38highlighted that parental rights to control child do not present for the advantages of the parent. These rights are present for the advantages of the child, and they are substantiated only to the magnitude that they facilitate the parent to execute his duties towards the child. As per Eekelarr, Dingwall & Murray (1983:224), parental rights, hence, considered as duty rights which parents are not expected to dump, waive or extinguish while caring for the child. As per Jeffrey Blustein (1982:114), parent’s privileges cannot outflank duties of the parents, as duties have absolute weight with regard to the parental rights39. James Dwyer asserts that the law centres on child’s rights instead of parental rights, and the law could acknowledge the parents as child’s agents, with an accountability to assert rights of the child and to safeguard the interests of the child. Barbara Bennett Woodhouse (1999:1256) maintains that parents have the parental responsibility instead of parental rights. As per Dwyer (1994:1429), if a tussle arose between the state and the parents under this legal domain, the courts would not have to balance the parent’s child-bearing rights with that of child’s interest as the parents would not have such privileges. Bennett Woodhouse laments that special dependence on the concept of parental rights may destabilise the value of mutuality and responsibility, which is essential to welfare of the child. He also advocates that law has the panorama of parenthood as not an ownership but as stewardship40. Again parental rights are left to the discretion of the courts in UK. The courts can issue an adoption order offering the natural parents full rights over the child. In the Family Reform Act, 1987, there is a provision for gamete donations that donors should have no parental duties and rights as regards to children who born from donation as per the recommendation made by the Warnock committee. A genetic father has the right to not to divulge the name of the donor if they have assumed a pivotal part in the child’s life as donors offer nothing in the development of child’s life41. In Re W42, a mother initially consented for adoption of her son. The child when eight days old was under the care of foster carers and later they applied for adoption proceedings with the mother who had signed consent form. However, later she withdrew her consent just before the hearing of the proceedings by that time, as the child was aged sixteen months by that time43. This emphasises the mother’s right as she can withdraw her consent any time before the order for adoption is made by the court . Conclusion As per the Adoption and Children Act 2002, if the welfare of a child requires it, the court can dispense with the requirement of consent of the natural parent to the placement and adoption of their child. While making an order for adoption, the following issues like child’s sex, age, environment, any of the children traits, the child’s racial background, religious practices and linguistic and cultural scenarios should be taken into account. It is to be remembered that the court will not endeavour to issue an order merely the threshold yardsticks are met. S 1(5) of the Act44 speaks about the non-interventionist policy which connotes that the court will pass order only if it feels that the things would become worse if it does not act In Re: A (a child) (adoption)45 case, the Court of the Appeal was of the view that though welfare of the child is a relevant point under the 2002 Act46, it is not the dominant or paramount consideration. However, in Re G (A Minor)47 case, it was held that the court will give paramount considerations to the child’s welfare and not the feelings of the natural unmarried parent. In SB v County Council case, the court did not consider the consent of the mother of the child as of paramount consideration. In Re C (A Child) (Adoption: Duty of Local Authority)48 , the court was of the view that parental consent is to be dispensed with once the adoption process is regarded to be in the best interest of the child. Fortunately, the parental consent can be overlooked only if a consent order is obtained from the court or when there is a significant harm to the child’s welfare. There is a need to reform the 2002 Act49 to have more justified rights between unmarried fathers, children and mothers. This is the need of the hour as there have been ever increasing figures of children born outside the wedlock, and 2002 Act50 should be amended to offer more recognition to the biological parent without parental accountability in the adoption process . Barbara Bennett Woodhouse (1999:1256) maintains that parents have the parental responsibility instead of parental rights. Bennett Woodhouse laments that law has the panorama of parenthood as not an ownership but as stewardship. Child’s welfare alone cannot be given paramount significance and parent’s consent and their rights, which is legitimate, reasonable , essential should also be given equal importance in the adoption process. Further , Article 21 European Convention on the Exercise of Children’s Rights (1996) requires that the paramount consideratrion should be given to the best interest of the child which includes welfare ,parent’s consent and parents right in the adoption process. UK being the member of the EU has the obligation to implement the Article 21 of the CRC51 in its 2002Act52. In view of the above, it is recommended that though child’s welfare has to be given utmost significance, natural parent’s consent and rights cannot be overlooked in the process of an adoption. Bibliographies Books Barclay, L, UK Law and Your Rights for Dummies (John Wiley & Sons 2011) Burton, F, Family Law (Routledge Taylor & Francis Group 2003) Fortin, J, Children’s Rights and the Developing Law (Cambridge University Press 2003) Great Britain, Adoption and Children Act 2002: Chapter 38; Explanatory Notes (TSO 2002) Lind, C , Heather M.Keating & Jo Bridgeman , Taking Responsibility , Law and the Changing Family ( Ashgate Publishing Ltd 2011) O’Halloran, K, The Politics of Adoption: International Perspectives on Law Policy & Practice (Springer 2009) Sloan, B, Conflicting Rights: English Adoption Law and the Implementation of the UNCRC (SSRN 2011) Stretch, R, Q&A Family Law 2011-2012 (Taylor & Francis 2011) Websites NSPCC Factsheet, ‘’An Introduction to Child Protection legislation in the UK ‘ (NSPCC, MAY 2012) < http://www.nspcc.org.uk/inform/research/questions/child_protection_legislation_in_the_uk_pdf_wdf48953.pdf> accessed 19 May 2012 Segal M , ‘Legal Case Notes: Adoption ( Protecting Children ,March 2008)’< http://www.teachingexpertise.com/articles/legal-case-notes-adoption-3260< accessed 19 May 2012 Sloan B, ‘Challenges in Adoption Procedures in Europe: Ensuring the Best Interest of the Child’ < http://www.coe.int/t/DGHL/STANDARDSETTING/FAMILY/Adoption%20conference/Presentation%20latest%20version%20Brian%20Sloan.pdf> accessed 20 May 2012 Read More