FREE CHAPTER from ‘A Practical Guide to Adoption for Family Lawyers’ by Graham Pegg

CHAPTER TWO

THE ADOPTION & CHILDREN ACT 2002 WELFARE PRINCIPLE AND CHECKLIST

The 1976 Adoption Act contained its own fairly restricted “welfare test” in section 6 which provided that the court, in reaching any decision with respect to the adoption of a child, should “have regard to all the circumstances, first consideration being given to the need to promote and safeguard the interests of the child throughout his childhood”.

Much was made academically of the difference between this test and the 1989 Children Act test set out in section 1(1) whereby the consideration given is “first” in adoption but “paramount” in other Children Act cases. In more recent practice, the courts were quite happy to give the interests of the child an almost identical priority and this welfare principle distinction eroded to virtually nothing as the Children Act mind set as to paramountcy became the norm.

So it seemed perfectly natural for the welfare test in the 2002 Adoption and Children Act to state that-

The paramount consideration of the court or adoption agency must be the child’s welfare throughout his life”

More should have been made, but rarely was, of the other distinction between these two tests, namely the use at the end of the 1976 Act test of the words “throughout his childhood”, as opposed to the more recent test’s “throughout his life”. In other words, we are not merely thinking of the here and now. Even in the case of a baby, the court should look, or should have been looking, at the impact of the order, not just for the whole of the next 18 years but far beyond. This concept chimes in with elements of the welfare checklist, in particular sections 1(3)(c) and (f) which look at how it will be to be an adopted person

Subsection 3 of section 1 copies the Children Act delay principle –

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.”

Subsection 4 provides a checklist, which lists a number of other issues which the court or adoption agency must bear in mind (many of which are also lifted straight from the Children Act) namely:-

The court or adoption agency must have regard to the following matters (among others)—

(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b) the child’s particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

This list is here set out as it was originally written but the Children & Social Work Act 2017, section 9, modified (f) so as to include, in the category of “any other person in relation to whom the court or agency considers the relationship to be relevant”, “any person who is a prospective adopter with whom the child is placed”.

This amendment followed a number of reported decisions where the issue of the relationship between a child, placed with an adoptive family for many months, or even longer, before the court finally adjudicated, and the adopters, appeared to have been given little or no consideration. These include-

Re P (A Child) [2015] EWCA Civ 777, in which King L.J. said that the court should pay great attention to the relationship which the child has with a foster carer, who had become a proposed adopter, with whom the child had lived virtually since birth.

Similarly, in Re M’P-P (Children) [2015] EWCA Civ 584, MacFarlane L.J. allowed an appeal against a special guardianship order in favour of an aunt in Belgium, who had only once even seen the children, rather than adoption by a foster carer who had looked after the children almost since their birth.

McFarlane L.J. observed that the 1st instance Judge makes “no mention of the fact that they will no longer be cared for by the only primary carer they have known and will break the strong bond of attachment that they have with her (the foster carer/adopter)”.

There was a similar outcome and reference to section 1(4)(f) in Re W (A Child) [2016] EWCA Civ 793.


ETHNICITY AND RELIGION

Section 1(5) of the 2002 Act used to make further reference to the child’s background by saying that-

In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.”

However, section 3 of the Children & Families Act 2014 removed that provision (in England, but not in Wales). The explanatory note to this part of the Act explains that this is to –

Reduce delay by removing the explicit legal wording around a child’s ethnicity so that black and minority ethnic children are not left waiting in care longer than necessary because local authorities are seeking a perfect or partial ethnic match;

What does the word “explicit” mean in this context?

Just how much attention or consideration should be given to these issues is a matter for conjecture. On the one hand, slavish “colour matching” might be objectionable and simplistic, but then again, clumsy trans-racial placements that tried to ignore true heritage have caused untold unhappiness.

Arguably, “background” does not just relate to colour or race. In Wales, for example, where the original provision remains, it is not unknown for those seeking adopters for a child born of Welsh speakers to seek Welsh speaking adopters.

While the “explicit legal wording around a child’s ethnicity” is no longer a specific feature of the Act, those charged with finding adopters may still have to consider the religious background of the child. Would it be a hostage to fortune to place a child born of Muslim parents to be adopted by a Jewish family? In theory it should make no difference, but would it be wise?

And does subsection 4(c) of section 1 allow the court to ask itself what the likely effect (throughout his life) on the child would be of having ceased to be a member of the original family and becoming and adopted person in this particular family?

The former provision, (still, of course, current in Wales), refers to the “child’s” religious persuasion. One might ask, when does a child acquire a religious persuasion?

In Re C (A Child) [2012] EW MISC 15 CC (which you will find in Family Law Week) a County Court Judge decided that a 10-year old girl, who wished to be baptised at the church which her father attended, should be allowed to do so despite the vehement opposition from her devout Jewish mother.

There is no mention in the 2002 Act of the 1976 Act’s nod in the direction of respect for the religious persuasion of the parents, save for the “catch-all” provision in section 1 (4)(f)(iii) as to the parents’ wishes and feelings generally. That Act’s section 7 provided that “An Adoption Agency in placing a child should have regard (so far as is practicable) to any wishes of a child’s parents and guardians as to the religious upbringing of the child.”

This wasn’t taken very far by the courts; as early as 1962 in Re G (An Infant) [1962] 2 QB 141 parents’ wishes as to upbringing, although important, were not enough to prevent an otherwise appropriate placement. But section 1 (f)(iii) still provides that the wishes and feelings of the child’s parents should be considered.

NO ORDER PRINCIPLE

There is now a “no order principle” akin to that in the Children Act. Section 1 (7) of the 2002 Act repeats the Children Act format but incorporates with it a provision that the court dealing with an adoption application must also consider its range of powers under the Children Act, saying –

The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so”

A similar provision in the 1975 Children Act decimated for years the number of step parent and extended family adoptions by providing, in section 37, that before making an adoption order, the court should give consideration to whether it would be more appropriate to make a custodianship order (a now defunct precursor to a special guardianship order).

The 2002 Act’s specific reference to the alternative powers of the court to make a Children Act order, should, arguably, be quite unnecessary. Adoption proceedings are “any family proceedings in which a question arises with respect to the welfare of any child (s. 10 (1) Children Act) – allowing the court, of its own motion, to make s. 8 orders within such proceedings, if the court feels that such an order would be better. This definition also engages the court’s power under section 14(6) of the Children Act to make a special guardianship order.

THE APPLICATION OF THE WELFARE PRINCIPLE AND CHECKLIST

To what court applications do all these welfare issues apply?

Subsection 7 makes them apply to a court-

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,”

Exactly why there should be a distinction, as far as the application of the whole of section 1 of the Act to leave applications is concerned, between applications in existing proceedings and those which “initiate” the case, may be hard to fathom. Fortunately the Court of Appeal in Warwickshire County Council v M [2007] EWCA Civ 1084 dealt with this issue and rendered it innocuous.

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