The Changes Their Impact on the Family Current Law - Term Paper Example

The nature of adoption law has changed significantly during the last 50 years. Explain the changes and discuss their impact on the current law. WordCount: 2540 The complex legal framework for adoption under UK law has fuelled academic and political debate, highlighting the inherent difficulty of legislating for sociological issues within a cohesive structure. Indeed, Ball asserts that “the law can only regulate the process, but in doing so it provides the framework within which difficult decisions involving children’s lives and complex personal sensitivities are taken”1. Moreover, Ball highlights the point that the efficacy of any adoption framework is inherently dependent on the ability to “achieve a delicate balance that places the child’s welfare throughout life at the heart of decision making, and at the same time is fair to all the parties2”. Ball’s arguments echo many academic commentators’ indictment of the inadequacies of UK adoption law by asserting that “for more than a decade it has been apparent that because of the changed nature of adoption practice, regulation of the process under the Adoption Act 1976 no longer meets these basic requirements”. The current system is regulated by the Adoption and Children Act 2002 (the 2002 Act), which was enacted to implement an overhaul of the adoption legal framework, which in turn was considered archaic and cumbersome3. The focus of this analysis is to critically evaluate the changes in adoption law during the last 50 years and consider how far the 2002 Act has altered the rigidity of the previous system. From a historical perspective, the adoption reforms in the UK such as introduction of legal adoption in the Adoption Act 1926 and prior to 1975 were to a great degree concerned with regulating the actual process of adoption and eliminate perceived abuses4. To this end, the pre-2002 law was effectively a series of ad hoc measures intended to address societal issues de facto5. Indeed, the central policy initiative behind the 1926 legislation was to regulate the increasing number of ad hoc adoptions of illegitimate children6. However, the contemporary societal environment clearly alters the efficacy of such frameworks7, which in turn begs the question as to whether the 2002 Act adequately responds to the contemporary social needs of an effective adoption system or whether the 2002 Act has as Choudhry posits been a “missed opportunity”8. If we firstly consider the pre-2002 position, the 1926 Act was passed through severe opposition to address what was considered a social problem with the rise of adoption of illegitimate babies9. However, this had reduced by the 1970s and the societal shift was echoed in the Children Act 1975, which directly addressed the needs of children in long term care. This shift demonstrated the changing perception of adoption as a solution for children across age ranges unable to be habilitated with their biological parents10. The 1926 model failed to account for the adoption of older children and the changed nature of adoption practice accepted that adoption was not the end of the process but a rather a part of family development11. The Adoption Act 1976 therefore consolidated the reforms of the Children Act 1975. However, notwithstanding the aim of the 1976 provisions to widen the ambit of adoption law to cover older children and children in care, the paper “In Adoption – the Prime Minister’s Review12” and the White Paper “Adoption: a New Approach”13 exposed a damning indictment of the adoption system particularly for children in care. The White Paper statistics indicated that children brought up in care were four times more likely to be unemployed and sixty times more likely to be homeless14. According to paragraph 2.5 of the White Paper, the rates for adoption of older in children in care did not demonstrate significant levels of increase. The Performance and Innovation Unit highlighted its central concern being the fact that 65% of children adopted had to wait over a year between coming into care and being placed with their adoptive family15. The second key criticism was that “where plans for permanent placements including adoption, are made, they are not delivered quickly enough, from the point of view of the child’s timescales, with waits of up to 3 years”16. The shortfall was further attributed to the lack of adequate post-placement and post-adoption support services, compounded by inconsistencies nationwide17. The Government drive attacked the results as unacceptable and promised that “more looked after children will be adopted”18. The Government further signalled intent to undertake the “most radical overhaul of adoption law for 25 years”19 which culminated in the 2002 Act. The focus of the 2002 Act appears to be on children and public services, particularly older children in care, which is welcome in expressly acknowledging the deficiencies of the 1976 Act. Indeed, a central policy underpinning the 2002 Act is the encouragement of the greater use of adoption in state care. One of the policies of the Act appears to be the greater use of adoption, particularly in the context of state care and attempts to make the process easier and more attractive20. Moreover, under section 22(1) a local authority must apply for a placement order over its accommodated children, if it thinks that the care order criteria apply, and that the child should be adopted. Such an order is defined as “an order made by the court authorising an adoption agency to place a child for adoption with any prospective adopters who may be chosen by the agency”21. This appears to remove the reality of the pre-2002 position by speeding up the administrative process. However, arguably the most contentious aspect of the 2002 Act is the right of the consent of the biological parent, which further highlights the inherent difficulty of achieving an adequate balancing act in social issues. In general, the effect of section 46 of the 2002 Act is to give parental responsibility of the child to the adopters, extinguishing parental responsibility of all others. However, the courts must be satisfied that the parent consents to the order. Notwithstanding, if consent is not given, courts can still grant an order under section 52. Under the previous system parental consent could be dispensed with and it was argued that insufficient weight was being given to parental views. Whilst the 2002 Act theoretically alters this position on grounds that consent can be dispensed with where “the parent/guardian cannot be found or is incapable of giving consent” or if “the welfare of the child requires the consent to be dispensed with”; Masson and Bailey-Harris argue that this formulation in fact appears to remove any possibility of taking account of parents rights or interests22. Whereas under the 1976 Act parents could take a different view of their child’s welfare and not be unreasonable, the current requirement imposes an objective view of what the child’s welfare requires, effectively allowing the “welfare principle” to override the rights of the natural parent. It is arguable that the welfare principle could still be preserved without the need to completely erode parental consent rights23. Nevertheless, where a person has given consent to adoption, they cannot subsequently oppose the adoption without the leave of the court, which is intended to encourage all consent decisions to be made at an earlier stage, thereby removing the delays of the previous system. In repealing and replacing the Adoption Act 1976, the 2002 Act applies the welfare principle to the dispensing of parental consent and in fact obliges officials to place for adoption many children looked after by local authorities. Section 1 of the 2002 Act states that “whenever a court or an adoption agency is coming to a decision relating to the adoption of a child the paramount consideration of the court or adoption agency must be the child’s welfare, throughout this life”. As such, the welfare principle is enshrined as an overreaching provision, although whether it merits the Government congratulations it received remains to be seen24. To some extent it aligns adoption law with the provisions of the Children Act 1989 (CA) provisions25. However, in some ways it goes further as in the previous section 6 provision of the Adoption Act 1976, the child’s welfare was only the first consideration and under the 2002 Act it applies throughout the child’s entire life and not just through the childhood. Furthermore, section 1 of the 2002 imports most of the section 1 checklist in the CA 1989 and refers to the child’s wishes and their ability to make decisions. However, the upgrading of child’s welfare from first to paramount consideration under the 2002 Act has failed to cut the ice in practice26. However, what has been considered important is that the paramount principle is extended to the dispensing of parental consent, with reference to both placement and the court order. This clearly marks a departure from the decision under the previous framework in ReP (an Infant) Adoption: Parental Agreement27, whereby Parliament now abrogates the entrenched rights that the claims of the birth family or the birth mother have priority in the absence of prospective adopter suitability28. Indeed, under section 16(2) of the Adoption Act 1976, the necessary parental consent could be overridden on the unreasonable withholding grounds. In Review of Adoption Law: Report to Ministers of an Interdepartmental Working Group29, it was recommended that the welfare principle be extended to adoption, which was referred to as “the important exception” of dispensing with parental consent, as otherwise, “the court would be able to override completely a parent’s wishes, which we would consider unacceptable in relation to an order which irrevocably terminates a parent’s legal relationship with a child”30. Moreover, it was felt by the Government that introducing the welfare principle would facilitate the target of increased adoptions31. Additionally, the central societal shift embodied in the 2002 Act is the removal of blanket prohibitions on prospective adopters. The 2002 Act enables a wider range of people to apply for adoption and provisions for post adoption support services. To this end the 2002 Act is symbolic in marking the seismic change in contemporary social culture from the original 1926 Adoption of Children Act where adoption by unmarried couples (same sex or not) was prohibited. The Civil Partnership Act 2004 introduces same sex registration. As such, the legislature eventually accepted the Backbench amendment (section 144 (4)) whereby adoption by a couple included: 1) a married couple; or 2) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship. It is submitted that this measure is welcome change to the law as the previous blanket ban on unmarried couples and same sex relationships works against children for whom previously only “joint residence orders” were available32. Once adoptive parents have acquired legal status over the child, the issue of secrecy and access to information about birth arises33. Adoption was previously considered secret, however the societal change in attitude is mirrored by the greater access for adopted persons to information about their birth as the 2002 Act states that adopted adults will be able to obtain details from the adoption agency in order to access their original birth certificate and they will have a right to copies of specific documents from the court which made the order. Previously, adopted persons had no right to their original birth certificate. The CA 1989 also requires the register general to maintain an adoption contact register which provides a safe and confidential manner for birth parents to assure an adopted person that contact would be welcome and give a current address. Whilst the 2002 Act makes an attempt to adapt the traditional model of adoption to the needs of children in care, it is silent on issue of contact, which remains under section 8 of the Act. However, the efficacy of any legislative framework is intrinsically dependant on efficient judicial enforcement and Bainham argues that the courts’ application of the CA provisions have undermined the overriding purpose to facilitate contact between parent and child. Indeed, academic debate has highlighted the shortcomings of the CA provisions in suffering from delay and lack of judicial consistency in practice in the applicability of contact orders34. This is further problematic as the overriding purpose of the 2002 Act is to encourage “looked after” kids being adopted and often they will be older and aware of their biological background, which would tend to support the notion of some contact with natural parents. This in turn lends itself to the argument of a more open model of adoption, particularly in context of the welfare principle35. However, this simultaneously creates a paradox due to the clean break model of adoption implemented by the 2002 Act. In fact there are clear indications as to the potential benefits of such a model for many adopted children and generally courts are reluctant to make a contact order when making an adoption orders36. Additionally, contact is often regarded as incompatible with parental responsibility. To this end, the tension between parental consent and the welfare principle has arguably led to a missed opportunity to rectify the shortcomings of the 1976 Act in this area. Ultimately, it remains to be seen how far the courts will apply new powers and one hopes that a pragmatic approach will be adopted particularly with regard to the welfare principle. In any event, the widening of the categories of who can legally adopt is certainly welcome and marks a societal change in the legal acknowledgment of the changing social dynamic of the family unit. As such, it is submitted that the abolition of blanket exclusions on adoption are the hallmark of the legislation in providing a meaningful attempt towards increasing adoption rates. BIBLIOGRAPHY Books Bainham, A. (2005). Children – The Modern Law. (3rd Edition). Ball, C. (2003). The Changed Nature of Adoption: A Challenge for the Legislators”. In G Miller (ed,), Frontiers of Family Law. Aldershot: Ashgate 2003, p.6. Choudhry, S. (2003). The Adoption and Children Act 2002, the Welfare Principle and the Human Rights Act 1998 – A Missed Opportunity. 15 Child and Family Law Quarterly 53. Cullen, H. (2005). Adoption – a fairly new approach. Children and Family Law Quarterly 53. Davis, L. (2005). Adoption and Children Act 2002 – Some Concerns. Fam Law 294. Diduck, A. & Kaganas, F (2006). Family Law, Gender and the State: Text Cases and Materials. (2nd Edition) Herring, H. (2007). Family law. (3rd Edition) Longman Lowe, N. (1997). The Changing Face of Adoption – the gift/donation model versus the contract/services model. 9 Child and Family Law Quarterly 371. Lowe, & Douglas. (2006). Bromley’s Family Law. (10th Revised Edition). LexisNexis UK. Masson, J. & Bailey Harris, R. (2008). Cretney’s Principles of Family Law. Sweet & Maxwell. Mykituik, R. (2006) Family Law: Cases and Materials, Osgoode Hall Law School, (2006) Probert, R. (2006) Cretney’s Family Law. (6th Revised Edition) (2006) Sweet & Maxwell Official Papers - Adoption – the Prime Minister’s Review (2000) Performance and Innovation Unit July 2000. - White Paper: Adoption: A New Approach (Cm. 5017, December 2000) - Review of Adoption Law: Report to Ministers of an Interdepartmental Working - Group Department of Health and Welsh Office, 1992 - White Paper: Adoption: A New Approach (Cm. 5017, December 2000) - Adoption: The Future-Cm 2288 (1993) Legislation The Children Act 1975 Adoption Act 1976 The Children Act 1989 The Human Rights Act 1998 Adoption and Children Act 2002 Read More