Special Guardianship and Adoption

Special Guardianship and Adoption

Nigel Lowe's "The Changing Face of Adoption"

Nigel Lowe discusses two evolving models of adoption that reflect broader societal changes and legal developments:

1. Gift/Donation Model:

◦ This traditional model views adoption as the final act in a process where birth parents "gift" or "give away" their child to adopters.

◦ The model is often criticised for objectifying and commodifying the child, reducing the child to an object that is transferred from one set of parents to another.

◦ A key feature of this model is the complete severance of the relationship between the birth parents and the child, with the child becoming legally and permanently part of the adoptive family.

2. Contract/Services Model:

◦ Emerging in recent years, this model views adoption more like a contractual arrangement that creates a series of obligations between the birth parents, the child, and the adopters.

◦ This approach places greater emphasis on maintaining some form of continuing relationship between the child and their birth family, reflecting a shift towards more open adoptions.

◦ The model recognises the complexities of familial relationships and the potential benefits of ongoing contact for the child's welfare, as opposed to the complete break that characterises the gift/donation model.

Adoption and Children Act 2002

The Adoption and Children Act 2002 (ACA 2002) modernised adoption law in England and Wales, introducing several key provisions related to eligibility, the adoption process, and post-adoption contact.

Eligibility:

1. Who Can Be Adopted?

◦ Section 47(8): An adoption order cannot be made in favour of someone who is or has been married, or in a civil partnership (s47(8A)).

◦ Section 47(9): The adoption order cannot be made if the person to be adopted has attained the age of 19 years.

◦ Section 49(4): An adoption order can only be made if the person to be adopted is under 18 on the date of the application.

2. Who Can Apply to Adopt?

◦ Section 49:

▪ (1)(a): An application for an adoption order may be made by a couple.

▪ (1)(b): Or by one person.

▪ Conditions:

▪ At least one of the couple or applicant must live in the British Islands.

▪ Both of the couple or applicant must have lived in the British Islands for no less than one year ending with the date of application.

◦ Section 50: Adoption by a Couple:

▪ S50(1): Both individuals must be 21 or older.

▪ S50(2): If one member of the couple is the mother or father, they must be at least 18, while the other must be 21 or older.

◦ Section 144(4): Defines a couple as a married couple, civil partners, or two people living as partners in an enduring family relationship, regardless of sex.

◦ Section 51: Adoption by One Person:

▪ S51(1): The person must be 21 or older and not married or in a civil partnership.

▪ S51(2): If the person is the partner of a parent of the person to be adopted, they must be 21 or older.

◦ S.51A and S.51B: Amendments to the ACA introduced these sections to allow for orders concerning post-adoption contact, either permitting or prohibiting such contact after an adoption order is made.

The Adoption Process

The adoption process is meticulously structured to ensure that the best interests of the child are prioritised at every stage:

1. Planning:

◦ Local authorities assess whether adoption is the best option for the child, considering all aspects of the child's welfare and the potential for a stable and supportive adoptive family environment.

2. Assessment:

◦ Prospective adoptive parents undergo a thorough assessment by the adoption agency, which evaluates their suitability to adopt. This includes examining the couple's relationship, health, living conditions, and overall capacity to provide for the child’s needs.

3. Agency Report and Decision:

◦ Based on the assessment, the agency prepares a report detailing the couple's suitability. The decision to approve or deny the application is based on this report, with the welfare of the child being the paramount consideration.

4. Matching:

◦ The agency then considers whether they have a child in their care who would be a suitable match for the approved adopters. Factors considered include the child's needs, the couple’s ability to meet those needs, and the potential for a successful long-term relationship.

5. Placement:

◦ The child is placed with the adopters for a trial period. During this time, the relationship between the child and the adoptive parents is closely monitored to ensure that it is developing in a healthy and supportive manner.

6. Application for an Adoption Order:

◦ If the trial placement is successful, the adopters may apply for an adoption order, which legally transfers parental responsibility from the birth parents (or local authority) to the adopters.

Key Sections of the Adoption and Children Act 2002

1. Section 18: Placement for Adoption by Agencies:

◦ S18(1): An adoption agency may place a child for adoption with prospective adopters or, if the child is already placed with persons, leave the child with them as prospective adopters.

◦ This section does not apply if the child is under six weeks old, in which case placement must be done under Section 19 or by a placement order.

◦ S19(1): An adoption agency can place a child for adoption if each parent has consented, the agency is satisfied with the placement, and the parents have not withdrawn their consent.

◦ S19(2): Consent may also include consent to the child being placed with any prospective adopters chosen by the agency.

◦ S20(1): Parents may give advance consent to the adoption of their child.

◦ S20(3): Parents may withdraw this consent at any time by notifying the adoption agency.

4. Section 21: Placement Orders:

◦ S21(1): A court can issue a placement order authorising a local authority to place a child for adoption.

◦ S21(3): A court can only issue a placement order if it is satisfied that the parents have consented, or their consent should be dispensed with.

5. Section 25: Parental Responsibility:

◦ S25(2): Parental responsibility for the child is transferred to the adoption agency when a placement order is made.

◦ S25(3): Prospective adopters attain parental responsibility once the child is placed with them.

◦ S25(4): The agency can determine the extent to which the parental responsibility of the birth parents, guardians, or prospective adopters is restricted.

6. Sections 26-27: Contact:

◦ These sections govern the arrangements for contact between the child and their birth family before and after the adoption process, allowing courts to manage and regulate these arrangements in the child’s best interests.

Special Guardianship vs. Adoption

Special Guardianship and Adoption offer different pathways for providing permanent care for a child, each with distinct legal and practical implications:

1. Special Guardianship:

◦ Introduced by the Adoption and Children Act 2002, Special Guardianship provides a middle ground between adoption and long-term foster care. It allows for a child to be permanently placed with a guardian, usually a relative, who assumes parental responsibility while the child maintains legal ties with their birth family.

◦ Pros:

▪ Maintains the child’s legal connection to their birth family, which can be beneficial for the child's identity and sense of belonging.

▪ Provides stability and security without the complete severance of ties that adoption entails.

◦ Cons:

▪ May lead to conflicts of loyalty for the child between the special guardians and the birth parents.

▪ Does not provide the same level of permanency as adoption, potentially leading to ongoing disputes over the child’s upbringing.

2. Adoption:

◦ Adoption, as discussed, involves the complete transfer of parental responsibility to the adoptive parents, with the child legally becoming part of the adoptive family and severing all legal ties with their birth family.

◦ Pros:

▪ Provides a permanent and secure family environment for the child.

▪ Legally recognised as the child of the adoptive parents, with all the associated rights and responsibilities.

◦ Cons:

▪ The complete severance from the birth family can be emotionally challenging for the child and the birth parents.

▪ The process is often lengthy and complex, with significant legal and financial implications for the adoptive parents.

Both Special Guardianship and Adoption play crucial roles in the child welfare system, offering different solutions depending on the child's needs and circumstances.