Adoption and Children Act 2002

	Explanatory Notes to Adoption and Children Act 2002 2002 Chapter 38

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These notes refer to the Adoption and Children Act 2002 (c.38) which received Royal Assent on 7th November 2002 ADOPTION AND CHILDREN ACT 2002 ________________ EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Adoption and Children Act 2002 which received Royal Assent on 7^th November 2002. They have been prepared by the Department of Health in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section 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, Department of Health, December 2000). 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 the Act 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 Act 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. 5. In summary, the Act: 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 and participating in 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 (defined in section 144) to establish an independent review mechanism in relation to qualifying adoption agency determinations; 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 adoption orders to be made in favour of single people, married couples and unmarried couples; provides for a new and more consistent approach to access to information held in adoption agency records and by the Registrar General about adoptions which take place after the Act comes into force, by ensuring that the release of this sensitive information about adopted people and their birth relatives is protected and that its disclosure is subject to safeguards; provides for adoption support agencies to have a role in assisting adopted adults to obtain information about their adoption and to facilitate contact between them and their birth relatives where the person was adopted before the Act comes into force; 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 United Kingdom 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 United Kingdom 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 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; amends the Children Act 1989 to make provision in respect of local authorities' power to provide accommodation for children in need under section 17 of that Act; amends the Children Act 1989 to amend, and widen the application of, the procedure for making representations under that Act and to impose a duty on local authorities to make arrangements for the provision of advocacy services to children or young people making or intending to make representations; amends the Children Act 1989 to provide that regulations may require a local authority to review the care plan of a looked after child; amends the definition of "harm" in the Children Act 1989 to make clear that harm includes any impairment of the child's health or development as a result of witnessing the ill-treatment of another person; amends the Children Act 1989 to make the application for a placement order specified proceedings and to enable rules of court to make applications for section 8 orders specified proceedings and to provide for the representation of children in proceedings. 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 5,000 adoptions in England and Wales. More than 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 Act are intended to encourage more people to come forward to adopt and to help adoptive placements to succeed. The Act 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 framework for adoption support services (including 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 Act 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 qualifying adoption agency determinations about the disclosure of information concerning a person's adoption. The mechanism could be used to review other determinations made by adoption agencies. Placement for adoption 8. The Act 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 Act 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 Act 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 Review of Adoption Law (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. Adoption orders 11. Under the Adoption Act 1976, single people may adopt and only married couples may adopt jointly. The Act provides that adoption orders may be made in favour of single people, married couples and unmarried couples. A definition of "couple", which covers both married and unmarried couples, is provided in section 144. The definition applies solely for the purposes of this Act. Disclosure of information about a person's adoption 12. The Act also makes new provision for the disclosure to adopted people of 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 Act 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. The new regulatory framework for the disclosure of information about a person's adoption seeks to recognise the interests of all those involved. Regulations may be made under the Act providing for the exercise of discretion by adoption agencies in this area to be reviewed by an independent panel (see paragraph 7). 13. This scheme would only apply to adoptions that take place after the Act has been brought into force. For adoptions which took place prior to the date of the coming into force of sections 56 to 65, provision will be made under section 98 (see paragraphs 244-249) for adoption support agencies registered to provide intermediary services to assist adopted adults to obtain information about their adoption and to facilitate contact between them and their birth relatives. Intercountry adoption 14. The Act 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 Act is implemented. 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 in respect of Intercountry Adoption and introduces sanctions against those who bring children into the United Kingdom 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. 15. To ensure that people living in the United Kingdom wishing to adopt a child from overseas follow the appropriate approval procedure, whether they adopt the child abroad or in the United Kingdom, the Act enhances the safeguards in the 1999 Act. It incorporates the restriction in that Act on bringing a child into the United Kingdom for the purpose of adoption by a British resident, and provides a new restriction where a child is brought into the United Kingdom 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 for a Crown Court to hear these cases and 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 16. The Act 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 17. The Act includes measures intended to tackle delays in the adoption process. It makes provision to enable the Secretary of State to establish an Adoption and Children Act Register to suggest links between children waiting to be adopted and approved prospective adopters. The Register is intended to reduce delay in matching children with adoptive families. The Act 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 18. 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. 19. The Act 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 ACT 20. The Act replaces the Adoption Act 1976 (except provisions about the status of children already adopted) 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 Adoption (Intercountry Aspects) Act 1999, 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 Act. The Act 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 Act 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. 21. The Act 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 (section 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 and participating in arrangements for the adoption of children and for the provision of adoption support services (section 3); provides a statutory right to request an assessment for adoption support services (section 4); amends Part 2 of the Care Standards Act 2000 to provide for the registration of adoption support agencies (section 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 (section 12); provides for default powers (section 14), inspection (section 15) and inquiries (section 17). Chapter 3 covers placement for adoption and adoption orders. It introduces placement by consent and placement orders (sections 18 to 29); makes provision for the removal of children who are or may be placed for adoption (sections 30 to 35) and makes provision for adoption orders (sections 46 to 51). It also makes provision for disclosure of information prior to and following a person's adoption (sections 54, 56 to 65 and 98). Chapter 4 covers the status of adopted children (sections 66 to 76). Chapter 5 makes provision for the Adopted Children Register (sections 77 to 79) and the Adoption Contact Register (sections 80 and 81). Chapter 6 makes provision for intercountry adoption (sections 83 to 91). Chapter 7 covers miscellaneous provisions. It makes provision for offences relating to arranging adoptions (section 93), reports (section 94) and making certain payments (section 95). 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 (section 111); introduces a more straightforward process for step-parents to acquire parental responsibility either through the courts or with consent (section 112); 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 (section 113); provides for enhanced residence orders (section 114) and special guardianship (section 115); makes provision in respect of local authorities' powers to provide accommodation for children in need (section 116); 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 1989 and under this Act (section 117); makes provision regarding care plans and the review of plans for looked after children (sections 118 and 121); places a duty on local authorities to make provision for the arrangement of advocacy services for looked after children and young people leaving care who wish to make a complaint under the Children Act 1989 (section 119); amends the definition of "harm" in that Act (section 120) and provides for the representation of children in court proceedings (section 122). Part 3 makes miscellaneous provision, including on advertising (sections 123 and 124), and establishing the Adoption and Children Act Register (sections 125 to 131). COMMENTARY ON SECTIONS Part 1 - Adoption Chapter 1 - Introductory Section 1: Considerations applying to the exercise of powers 22. Section 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 includes any decision by the court about whether or not to dispense with parental consent to adoption or to make a contact order in respect of a child under section 26. 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 Review of Adoption Law. 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 1989, 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 persuasion, racial origin, cultural and linguistic background. This is in line with the duty placed on local authorities by section 22(5)(c) of the Children Act 1989, 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 Act 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 sections re-model provisions of the Adoption Act 1976. However, this Chapter also underpins some important areas of new policy dealing with adoption support services (including financial support) and independent reviews of qualifying determinations (see section 12). Registration of voluntary organisations which are adoption societies is to be undertaken by the registration authority (the National Care Standards Commission where the principal office is in England and the National Assembly where the principal office is in Wales) under Part 2 of the Care Standards Act 2000. Chapter 2 amends the Care Standards Act 2000 to make provision for the registration of adoption support agencies (see section 8) and to clarify the distribution of functions between the registration authorities given that registered adoption societies will be cross-border bodies (see section 16).





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