Select Committee on Adoption and Children Bill Minutes of Evidence

Memorandum submitted by the National Organisation for the Counselling of Adoptees and Parents (NORCAP)


  1.1  The National Organisation for the Counselling of Adoptees and Parents (NORCAP) was established in 1982. It offers practical support and services, advice and counselling to adults whose lives have been affected by adoption. In particular it works with adopted adults who are wishing to obtain information about their birth family or to have renewed contact with birth relatives. Over 6,000 reunions have been facilitated through the NORCAP intermediary service. NORCAP established the first register to link adopted adults with birth relatives. It has been operational for over 19 years and contains more than 50,000 entries. Seven hundred and fifty links have been achieved. The operational detail of the NORCAP register is very different from the Adoption Contact Register of the Registrar General. Comments sent direct to NORCAP and findings in independent research*(1) report that the unique supportive framework within which potential links on the NORCAP register are facilitated is welcomed by many users.

  1.2  NORCAP assists with the search necessary to obtain information or locate birth relatives; it offers an intermediary service to ensure the initial contact is made in an appropriate manner and that each person has adequate support at what can be an emotional time. NORCAP also provides various services including local groups where adopted adults can explore the impact of adoption upon their lives with other people who have also experienced adoption. Many adopted adults use NORCAP services when they need to renew contact with brothers and sisters who were adopted into other families. They use the support of NORCAP to help them communicate effectively with their adoptive parents and to help them understand that their need to renew contact with birth relatives does not reflect negatively on their adoptive family.

  1.3  Our second largest group of members and service users are birth relatives, particularly birth mothers and siblings of adopted people. In the early days of its existence NORCAP offered only a passive service to birth relatives. This reflected our understanding of adoption law at that time. However, by offering some service, even a passive one, to birth relatives NORCAP was working at the forefront of adoption provision and pushing out boundaries which had effectively excluded birth relatives for over 50 years.

  1.4  From 1990 NORCAP has been campaigning for birth relatives in the UK to have access to active service provision similar to that enjoyed by birth relatives in Canada, Australia and New Zealand. NORCAP was the first to identify the opportunity for adoption agencies to use their powers under section 1 1976 Adoption Act and regulation 15(2) within present legislation to provide an outreach service for birth relatives and have advocated its use. Many agencies followed our model and substantial numbers of birth parents benefited as a direct result of NORCAP's campaign. NORCAP has worked in partnership with adoption agencies in over 400 cases enabling an intermediary service to be offered to birth relatives through our pioneering use of non disclosure agreements. After 10 years the Department of Health issued practice guidance on this.*(2)

  1.5  NORCAP has been able to establish through work with our members past and present and their relatives by both birth and adoption that skilled services which re-open adoptions which have been closed for decades provide lasting benefit for everyone involved. Adopted adults, birth parents and other relatives and adoptive parents all benefit from enhanced understanding and the removal of the burden of guilt which appears to walk hand in hand with secrecy within families.

  1.6  NORCAP has been concerned for many years about inequality of service provision. When services are not prescribed as duties upon agencies the variation of service provision is unacceptable and results in injustice and great distress. As a result of the history of adoption and the varied routes and individuals through which the adoption service developed, one of the major barriers to equality of service is the specific history of any adoption situation. To remedy this the Adoption and Children Bill as well as providing a positive framework for adoption in the future must also address the inequality and injustice of the past. Some three to four million adults in the UK live with the impact of adoption. They have seen how people in similar circumstances around the world have benefited as one legislature after another has introduced provisions to benefit adults affected by adoption in years gone by. They expect that this Bill will address their needs by providing similar opportunities and services here.

  1.7  NORCAP is a registered charity. It employs 4.5 fill time equivalent staff and relies upon over 60 volunteers nationwide to provide services to the current membership of 4,000 adopted people, birth relatives and adoptive parents. Other interested people and professionals from our associate membership.

  1.8  Our evidence to the Select Committee on the Adoption and Children Bill is in three sections:

    —  Provisions for adults that appear missing from the Bill.

    —  Provisions for concerning adults that need amendment.

    —  Provisions for adoption services in general on which NORCAP wishes to express an opinion, based upon our collective experience.


  2.1  This is the virtue of adoption. It is the reason why this Adoption and Children Bill is such a positive step forward for many children who may have no family for life if they move between many foster homes and residential care settings throughout their childhood. However, the very virtue of adoption is also the potential cause of some of the consequential problems. Adopted children grow up and become adults. At that stage of their lives they do not necessarily need protection, they need rights and with rights go responsibilities. Birth families also live with the fact that adoption is for life. For those devoid of even the basic information of whether or not a former family member is alive or dead, the fact that adoption is for life can feel like a life sentence. NORCAP wishes to celebrate the benefits and joys of adoption but also to recognise the distress and sadness that may ensue. Our evidence will focus on how good adoption legislation can enhance the lifelong benefits of adoption for every one who is affected by it.

Provisions for services for adults that appear to be missing from the Bill. The right for birth relatives of adopted adults to access information

  2.2  Whilst adoption today is about securing family life for children who would otherwise grow up in the care of local authorities this is a fairly recent use of adoption. For the first 50 years from 1926 to 1976 adoption was used, almost exclusively, to avoid the stigma of illegitimacy and extra-marital births. Unmarried mothers had little choice but to relinquish their babies to adoption. Half a million women went through this experience, they had not harmed their child in any way yet they lost them to adoption. Told to forget and get on with their lives, research has shown most found that impossible. They have grieved an unending, unfocused grief not knowing even if their son, their daughter was alive or dead. They have seen other people who lost children to adoption in recent years, in perhaps more questionable circumstances, benefit from letterbox or direct ongoing contact. In August 2000 the Department of Health issued "Intermediary services for birth relatives—Practice Guidance". Drawing upon the research of the Children's Society and the collective experience of a considerable number of agencies this guide detailed the opportunities available to agencies to offer an outreach service to birth relatives of adopted people within present legislation. It offered a ray of hope to birth mothers in particular but also to brothers and sisters whose sibling had been adopted and fathers, many of whom only learned of their paternity many years after the adoption. However, agencies were not required to follow this guidance. Even the Minister's foreword highlighted that it was optional. The inequality of service provision across the country and between agencies was reinforced. The service was in any case only a possibility for those relatives who could identify the adoption agency.

  Many could not and in other cases adoptions were arranged by private individuals when such placements were lawful so there is no adoption agency birth relatives can approach to ask for an intermediary service.

  2.3  It was expected that the new adoption Bill would give statutory weight to the practice guidelines and a means of ensuring service provision was available to those affected by non-agency placements would be devised. We were saddened to see that no mention of the practice guidance was even alluded to within the Bill and no section requires the provision of intermediary services at the request of birth relatives. In the chapter relating to the records of the Registrar General, and the conditions for access to these, steps have been taken to ensure that the windows of opportunity presently available to some birth relatives to initiate renewed contact have been firmly closed.

  2.4  Birth relatives all need the opportunity to access an active service now. It is the obvious next step in developing our adoption service from the access to birth records given to adopted adults by the 1976 act. Many Commonwealth countries followed Britain's example in providing access to birth records. They have now incorporated some form of active service for birth relatives as well as adopted people into their legislations, either simultaneously or within a few years of the initial provision. Britain is alone in offering a one sided service. This Bill will be the last chance for a generation to put this right. For the mothers who parted with babies born during the Second World War, for elderly brothers and sisters who remember a baby being born and then being gone this is the last chance.

  2.5  Giving statutory duty status to the practice guidance would be one option. It would necessitate additional resources particularly in agencies with many "historic" or inherited records. There would also need to be provision for adoption agency access to the information contained in the register kept by the Registrar General to link birth entries to adoption entries in order to ensure equality of opportunity for individuals who cannot identify the adoption agency involved. NORCAP's preference would be for new legislation that provides service for birth relatives similar to the provision in Canada, New Zealand and Australia. This would be a more empowering and sustainable option.

  2.6  NORCAP can offer guidance on various options that could be put in place as safeguards. These may include:

    —  protection of vulnerable children effected by requiring service is only provided when the adopted person is an adult.

    —  providing the service only if the adopted person is aged 21 or over, (the age required to adopt an unrelated child).

    —  providing for access to information 30 years the granting of adoption order (the period of closure of cabinet papers).

    —  making provision for a veto to be lodged to prevent the disclosure of identifying information; and

    —  applying the provision only to those cases where the adoption order was made before 12 November 1975. (The date at which the law was retrospectively changed to provide access to birth records. There would then be an equal and reciprocal need for the adults involved in an adoption situation to make accommodation to take account of the needs of the other adults involved.)

  2.7  However, fear that a tiny minority of people would not wish to communicate with birth relatives is not a sound reason to fail to provide the opportunity to the vast majority who would welcome it. The modified provision of the Adoption Contact Register (Clauses 65-67) does not effectively address these needs. The service is passive. In the 21st century people expect an active service. The proposed Bill does not meet the needs of adults affected by adoption. Our preference is for a new section that would read:

  2.8(1)  Subject to what follows, the Registrar General shall, on an application made in the prescribed manner, by a birth relative of an adopted person and in those cases where the Registrar General holds a record of the Adoption Order of the individual to whom the applicant is related by blood or marriage as defined in regulation, supply to the applicant on payment of the prescribed fee (if any) such information is as necessary to enable the applicant to obtain a certified copy of the record of the adoption of his relative.

  2.8(2)  Before supplying any information to an applicant under subsection (1) the Registrar General shall inform the applicant that counselling services are available to him at the places listed in subsection 3 below.

  2.8(3)  Where an applicant who is in England or Wales applies for information under subsection (1) it shall be the duty of the persons and bodies mentioned below to provide counselling for him if asked by him to do so.

  2.8(4)  The persons and bodies are:

    —  the Registrar General;

    —  any local authority;

    —  any adoption society in so far as it is acting as an adoption society within England and/or Wales; and

    —  any body licensed by the Secretary of State to provide Adoption Advice and Support Services to Adults (see below).

  2.8(5)  When the applicant indicates from which body in subsection (3) he chooses to receive counselling the Registrar General shall send to that body the information to which the applicant is entitled under subsection (1).

  2.8(6)  Where an applicant applies for information under subsection (1) the Registrar General shall supply the information to him only if the person to whom it relates:

    —  is an adult; or

    —  has attained the age of at least 21 years; or

    —  it is 30 years or more since the date on which the adoption order was made; or

    —  the adoption order of the person about whom the applicant has applied for information was made before 12 November 1975.

  2.8(7)  The Registrar General shall not supply any information under subsection (1) if the adopted person to whom the information relates has requested in the prescribed manner that the information is not made available to any relative.

  2.8(8)  Where an applicant applies for information under subsection (1) the Registrar General shall not supply the information to him unless he has attended an interview with a counsellor arranged by a person or body from whom counselling services are available as prescribed in subsection (2).

  2.8(9)  Where the Registrar General is prevented by subsection (6) from supplying information to a person who is not living in the United Kingdom, he may supply the information to any body which:

  2.8(10)  the Registrar General is satisfied is suitable to provide counselling to that person, and has notified the Registrar General that it is prepared to provide such counselling. In this section prescribed means prescribed by regulations made by the Registrar General.

  2.9  If the opportunity for birth relatives to initiate contact with adopted adults is to be limited to giving statutory duty status to the Intermediary Services for Birth Relatives—Practice Guidelines*(2) then provision for this will need to be made both in section 3(8)a and in Chapter 111 by inserting a new section between the existing section 48 and section 49. It may read as

  2.10  The Birth relative of an adopted adult person has the right to access an intermediary service from the adoption agency involved in the placement of their relative for adoption or from the local authority adoption agency in which the birth relative currently resides. The intermediary service will provide that the adopted person will be made aware, in a manner specified in regulations, that his birth relative would wish to communicate with him.

  2.11  A subsequent section will need to provide:

    —  An adoption agency which has a duty to provide an intermediary service for a birth relative, but was not the adoption agency which placed that adopted person for adoption, shall be entitled to require the Registrar General to provide information to the agency that will enable the adoption agency to identify the entry of the adopted person in the Adopted Children Register.

  2.12  There will need to be a consequential change to Section 62 to authorise the Registrar General to provide this information to the adoption agency.

  2.13  Anything less than the clauses detailed above will fail to meet the needs of an increasingly aged group of birth relatives.

  2.14  In our submission to the Prime Minister's Review of adoption we emphasised the importance of making provision for the adoptive parents or long term carers or surviving spouse of an adopted person who has died or is disabled to be allowed to act on behalf of the adopted person. It is possible that section 48(2) was envisaged to address the need we had highlighted. This is not achieved. In the circumstances we have in mind the adopted person is not able to appoint someone to act on his/her behalf. This may be because the adopted person died in childhood or because he/she is disabled. In either case the right must be available automatically to other appropriate people who can act on his/her behalf to access information if necessary and to register on the adoption contact register. A Clause to this effect may be added to section 48.

  2.15  There needs to be provision to enable the descendants of an adopted person who has died to inherit the right of access to information and services that the adopted person would have enjoyed had he/she not died. This provision is available to descendants of adopted people in Canada and Australia. The need for such specific provision is illustrated by the number of individuals who have resorted to making application to the High Court under the present section 50(5) Adoption Act 1976. Their applications have succeeded but a specific provision would avoid the need to have to resort to such costly and potentially intimidating procedures.

  2.16  Another significant group of people who have again been overlooked by this Bill is Foundlings—often spoken of as abandoned babies—and their relatives. They have no access to any information about their birth circumstances as a result of the route by which they came to need adoption. However, despite their unfortunate early circumstances provision must be made so that it is straightforward for information to be exchanged at a later date. The provisions of the adoption contact register must be amended (see our paragraph 3.9) and the law which specified that the abandonment of children under two years of age is a criminal offence, Offences Against the Person Act (1861) section 27 must also be changed.

  This will ensure it does not deter any relative coming forward and offering information that may be so important to the adopted person even if it is many years later. Regulations should prescribe a protocol which must be followed throughout the UK whenever an infant is found, apparently abandoned, and who may need adoption if he/she cannot be returned to the birth family. The number of such incidences is increasing. The protocol should recognise not only the immediate needs of the infant, but the potential life long needs and also the priority which must be given to seeking to locate the parent(s).

  2.17  Many people wish to access information and intermediary services from agencies independent of the social services or placement agency. We are unable to recognise the proposal contained in the White Paper at 6.46 that suitable organisations could be licensed to undertake this work. The Minister (Mr Hutton) speaking in the second reading debate 26 March said "Local authorities may provide services by arranging for them to be provided by voluntary adoption agencies or other parties prescribed in regulations. This will enable them to draw on the Voluntary Sector which has huge groundswell of expertise and resources". NORCAP is just such an organisation with probably the largest body of experience in providing services to adults affected by adoption.

  2.18  We would propose that voluntary organisations such as NORCAP should be able to apply to the Department of Health or Local Authority for approval and licensing as an Adoption Support and Advisory Service for Adults. Approval should be subject to compliance with criteria laid down in regulations. The process should be suitably rigorous but not as extensive or complex as the approval of an adoption society that will carry responsibility for approval of adopters as well as placement and post adoption support of vulnerable children.

  2.19  The licensing of Adoption Support and Advisory Services for Adults could encompass not only birth records counselling but handling provision of access to information from adoption files on behalf of adoption agencies and for offering intermediary and support services. Licensed services could be authorised to operate as if an adoption agency in terms of access to information within those areas of work which relate only to the adoption of a person who is now an adult. If the rule of licensed services is not recognised in primary legislation the opportunity for the statutory sector and service users to effectively use their expertise will be very limited as many clauses limit the sharing of information and service provision to adoption agencies only. If licensed services are introduced it may well free up time in statutory and voluntary adoption agencies to meet the placement needs of today's children as the post adoption work with adults may be done elsewhere.


  3.1  Section 48(c)  provides that an adopted adult has the right to obtain "a copy of any document or order prescribed by rules, from the court in question. In Scotland, adopted people already benefit from the right to read the entire "court process". We trust that this section will be clarified to provide equality of opportunity for adopted adults in England and Wales and will not result in more restricted provision.

  3.2  Section 49(1) will result in adopted people having access to less information in the future than many gain now. Adopted people need access to information that contains identifying details about their birth parents, their siblings, their grandparents and previous foster carers. If they had not been adopted this information would never have been taken away from them. Adoption agencies have shared background information using their discretion as part of the work connected with birth records counselling. The opportunity to use professional judgment must not be removed. Whilst it may simplistically appear the "safe" option to withhold any information which identifies a third party it is vital to appreciate that given information people make informed judgements. If information is withheld people still make judgments but they are more reckless as they are not well informed. Adoption agencies must take responsibility for consequences occurring as a result of information they withhold just as they should for consequences occurring as a result of information they share.

  3.3  Given they must take professional responsibility they must be allowed the discretion to exercise professional judgment and not be constrained by the proposed wording of section 49(1). NORCAP also believes the failure to supply comprehensive information to an adopted person about his/her background may constitute a breach of the adopted person's rights under Article 8 clauses 1 and 3 of the European Convention of Human Rights. The judgment in the case of Gaskin v UK12 EHRR 36 may be significant in this connection. Remove the restriction on providing an adopted person with third party information.

  3.4  We are unhappy that the Bill proposes a legal fiction is section 51(1) and (2). This must be revised. A person adopted by a single male adopter cannot be said to be born to that adopter in wedlock. Adopted people may need the security of knowing that adoption is permanent and will not be revoked but they do not need unrealistic fairytales. Similarly it is most inappropriate to pretend they are not the child of any other person, they remain the biological child of "other" persons. Those parents may not have parental responsibility and may not have any role in the adopted child's life but they remain the biological parents. This section is in conflict with section 58, as that section specifies that the biological relationships of the adopted person are applied in connection with schedule 1 of the Marriage Act 1949 and sections 10 and 11 of the Sexual Offences Act 1956 (incest).

  3.5  Section 53 should be amended so an adopted person may inherit peerages and lands associated with any peerage. It is unjust to exclude them.

  3.6  Section 62(4) We are unhappy with the wording of this section. A section of legislation identical to this section but without the words "In exceptional circumstances" has been included in every adoption act from 1926 onwards.

  3.7  Since 1994 three reported cases have come before the High Court. In Re H (1994) the need for the application to be exceptional was considered by Mr Justice Thorp (as he then was). He concluded there was only a need for an applicant under this section to make a case of sufficient weight and merit to convince the court of reasonableness of making an order. In Re D 1996, in the Court of Appeal, the substance of this judgment was overturned by the Lord President Sir Stephen Brown. He determined that the application should demonstrate exceptional circumstances and potential benefit to the adopted person. However, in a very recent judgment Mr Justice Sumner made an order under this section having considered the unusual circumstances of the case and taking account of the implications of the European Convention on Human Rights. NORCAP played a very significant role in both Re H cases and provided an affidavit in Re D.

  3.8  NORCAP is convinced the Clause requiring the Registrar General to disclose the link between a birth entry and an entry in the adopted children's register only when ordered to do so by the High Court is a sufficiently high threshold. The court would not make an order frivolously. The court would ensure that the application was reasonable of sufficient weight and merit to justify the making of an order. Amendment—Delete "In exceptional circumstances".

  3.9  NORCAP has serious reservations concerning the operational detail of the adoption contact register. These have been detailed to the Registrar General and Officers at the Department of Health over the past 10 years and regularly reiterated. We do not consider that it is appropriate for the operational detail to be specified in primary legislation. We understand the Registrar General would support an amendment that prescribed the duty to provide an adoption contact register but put the operational detail into regulation. We propose that sections 65, 66 and 67 be replaced by a revised section 65 "The Registrar General must cause to be maintained a register to be called the Adoption Contact Register. The operation of the Adoption Contact Register and the fees to be applied, if any, shall be prescribed by regulations.

  3.10  However, it is essential that when drawing up the regulations, which are likely to be based upon the present content of sections 65, 66 and 67, adequate provision is made to provide flexibility. The Registrar General will then be able to process registrations from Foundlings (abandoned babies—see paragraph 2.16 above). The regulations must also allow registrations by persons authorised to act on behalf of an adopted person (see paragraph 2.14 above). Special provision must be made to enable people adopted overseas to use the register and for the birth relatives of all these groups to be able to register with ease. Regulations should also provide for the Registrar General to follow up communications to ensure they have been received by the individual for whom they are intended.

  3.11  NORCAP hopes that the fees charged for use of the contact register will be equalised. Whilst the organisation does not dispute that the differential charge may reflect the different costs of registration, no link can be achieved unless a birth relative registers on part two and an adopted person on part one. Therefore the total cost of registration of both parties should be equally divided as the registration cost for either party.


  4.1  NORCAP welcomes the requirement in sections 1(4)d and 1(5) which recognises the importance of the child's background. For generations adopted people report that tension within the adoptive situation is greatest when they feel they do not fit in. We hear from people who describe themselves as "square pegs in round holes" or the "odd one out". The feeling of isolation may be perceived as a result of cultural, racial, physical, intellectual or emotional differences. It is very important that all factors are taken into account.

  4.2  NORCAP is concerned that when a child is placed for adoption with a couple who are not married to one another only one of them will be able to adopt the child. NORCAP is very aware that it is vital for an adopted child to be 100 per cent confident that there is equal and complete commitment in the new family to him/her being in that family. If only one adult can adopt, the adopted child may be insecure as a result.

  4.3  This provision may reflect concern that providing for adoption orders to be made to couples who are to parent a child together, but are not married to each other, would be interpreted as promoting adoption by gay couples. This is not the key issue and needs re-examination from a child centred perspective. This is not an issue about any adult having the right to adopt. It is all about the adopted child's right to have the same, equal, and lifelong relationship to both adults who act as parents to him/her rather than the quality relationship conferred by adoption to one of the adults and a lesser, temporary one to the other "parent". This is like asking a child to tell you who he/she loves most—Mum or Dad? It should not happen.

  4.4  There is no legislation requiring that children may be placed only with married couples or single people who live alone. For many years adoption agencies have taken up applications from unmarried people living both as heterosexual and gay couples. Both partners are subject to the same preparation and assessment, much of which focuses on their interaction and their skill in working together. An appraisal is made of their ability to support one another in the face of difficulties—a most essential characteristic for people contemplating the challenge of adoptive parenting. In making a recommendation for approval as prospective adopters panels normally note which applicant will be the one to apply to adopt and which will seek an alternative order giving parental responsibility in recognition of his/her role in relation to the adopted child. When a link is made this is because after careful assessment the couple together is shown to be the best placement for a particular child. It does not reflect their right to be parents. It reflects the view that the child's needs can best be met by them as a couple.

  4.5  When any couple is selected as the people who together can meet a child's needs then the child needs to be adopted by both of them. In this way the child's rights are met; the right of the child to be adopted by both partners not just one. Section 43 needs amendment to achieve this.

  4.6  Although during the 1960s the UK was a signatory to a convention which requires only married couples or single people adopt this should not determine legislation in the twenty first century. It is not a tenable argument today for depriving children of the right to a lifelong permanent relationship to both would-be adoptive parents even if they are not married to each other. In the 1960's most adoptions were of babies relinquished by unmarried mothers solely because they were unmarried mothers. Unmarried parenthood fell outside society's norms. All that has changed. Most adoptions today are of children who have been looked after in public care who need the most skilled and resourceful adoptive parents regardless of the sexual orientation or marital status of those parents. The child's security will be enhanced by the knowledge that both partners are his/her adopters for life. If implementing such beneficial change in domestic law requires the UK to re-negotiate the international convention then it would be done in the interest of applying an ethical policy which recognises that the child's needs throughout his/her life must be the paramount consideration in any matters relating to adoption.

  4.7  NORCAP wishes to see changes to the provisions contained in section 44 concerning consent. We are saddened that the requirements for giving consent to adoption remain so unacceptable to most birth parents who whilst recognising the need for their child to be adopted only accept that plan with regret and sorrow. Acceptance of the plan together with recognition of the effect, should be the basis of consent and reflected in the wording of forms parents need to sign for an adoption to be heard by the court uncontested. Clause 44 does not meet this requirement even though the White Paper indicated the means of giving consent would be made acceptable to birth parents, thereby reducing delay for their children. NORCAP proposes that a birth parent may give consent to adoption by declaring "I acknowledge that adoption will be in the best interests of my child. I accept the adoption plan and will not oppose the making of an adoption order. I understand the implications of an adoption order being made."

  4.8  NORCAP does not consider it right to dispense with a birth parents consent to adoption simply because "the welfare of the child requires the consent to be dispensed with". We do not consider such a fundamental interference in family life can possibly be compatible with the European Convention of Human Rights. NORCAP proposes that the test for dispensation of consent should be that proposed in the Report to Ministers—Interdepartmental Review of Adoption 1993. The consent of the parent may be dispensed with if the advantage to the child of being adopted is so significantly better than any other option as to justify dispensing with the parent's consent.

  4.9  NORCAP welcomes the introduction of a Special Guardianship order and hopes that it will be considered as a positive means of achieving for a child the benefits traditionally associated with adoption whilst avoiding the losses associated with adoption. We have learned that in New Zealand Guardianship is the means of providing permanency for children aged over two years.

  4.10  NORCAP has taken note of two provisions in section 94 (Special Guardianship) that we would like to see applied also to situations involving adoption. They are:

  4.11  14B  Before making a Special Guardianship order or an adoption order the court must consider whether, if the order were made, a contact order should also be made with respect to the child.

  And 14C(4)  If the child with respect to whom a Special Guardianship order dies, his/her Special Guardian must take reasonable steps to give notice of that fact to each parent of the child with parental responsibility. This would translate as:

  If a child who was adopted dies his adoptive parent(s) must take reasonable steps to give notice of that fact to the individuals who had parental responsibility for the child before the adoption order was made.

  4.12  It would probably be appropriate to impose a duty upon the adoption agency to assist the adoptive parents in fulfilling this responsibility.

  4.13  NORCAP trusts that the Select Committee will recognise that the common thread through all our proposals and concerns is a recognition that adoption binds individuals and families together for life. We all remain emotionally connected for life. We need a legal framework that recognises and regulates that reality with compassion and sensitivity.


  NORCAP's issues can be summarised under three headings, adult issues which are missing, adult issues which need amendment, and other issues upon which we have a view born out of our shared experience of adoption.

What is missing

  1.  Statutory provision to enable birth relatives of adopted adults to obtain information about their relative who was adopted. NORCAP proposes this is put right by introducing an "Access to Adoption Records" clause which is a mirror of Access to Birth Records for adopted people. We have used Canadian legislation as a model and built in all necessary safeguards. A much more costly, and less empowering, alternative would be to make the Intermediary Services for Birth Relatives—Practice Guidance produced by the Department of Health last August into a statutory duty. There would need to be extra duties to cover people who cannot identify the adoption agency involved.

  2.  The next of kin of an adopted person who is unable as a result of any disability to register on the adopted contact register or to access his birth records personally must be able to do so on his behalf. Descendants of adopted people must be able to inherit the right of the adopted person to access that person's birth records if their ancestor has not done so before he dies.

  3.  The descendants of an adopted person who has not exercised his right to access his birth records during his lifetime must inherit the rights he could have used.

  4.  Changes to the operation of the adopted contact register must make it possible for foundlings and people adopted overseas to register and for their birth relatives to register without difficulty or fear of prosecution.

  5.  Organisations such as NORCAP should be subject to regulation and inspection and then licensed as an Adoption Support and Advisory Service for Adults. Such bodies should be empowered to access official information and work in partnership with adoption agencies on the areas of work affecting only adults. Unlicensed bodies should be illegal.

What needs to be amended

  1.  Section 49 must be amended to remove the restriction on the release of third party information. The agency should have discretion on this matter and advise the adopted person of the nature of any information they have decided they must withhold together with the reason for reaching this decision.

  2.  The legal fiction that adopted people have no other parents than their adoptive parents must be changed (section 51).

  3.  We want to inherit peerages and lands from our adopters (section 53).

  4.  "In exceptional circumstances" must be removed from section 62(4). The High Court would only grant reasonable applications and the onus must be on the applicant to produce a case of sufficient weight and merit to convince the court of the reasonableness of making an order. There should be no artificially higher threshold. (NB if 1 and 3 in the missing section are both implemented the number of applications under this section will be very small).

  5.  The operational details of the adoption contact register should not appear in primary legislation Section 65 should simply impose the duty upon the Registrar General to ensure there is an Adoption Contact Register and that it is operated in accordance with regulations.

  6.  Fees charged to use the contact register should be the same for each user and not at different levels for adopted people and relatives. One of each is needed to make a match.

Other provisions

  1.  Welcome the provision of recognising the importance of the child's background contained in section 1.4 and 1.5.

  2.  If a child is placed for adoption with a couple who are not married to each other but who have been assessed for adoption together and who will both act as adoptive parents then the law must change to allow the child to be adopted by both of them. This is the child's right to be adopted by them both not their right to adopt.

  3.  The means of giving consent to adoption must more realistically reflect the real position of birth parents who need to let their children be adopted. It must not ask them to say they freely consent because that is rarely, if ever, the case. They accept the adoption plan and agree not to oppose the making of an order because they recognise that is best for their child.

  4.  The grounds on which a court may dispense with a parent's consent to adoption must be re-examined. It is unacceptable to so fundamentally interfere in family life as to make an adoption order without the consent of the birth parent solely on the grounds that "the child's welfare requires it". This could lead to social engineering of the worst kind. The benefit to the child of the making of an adoption order must be so significantly greater than the benefit for the child that could be achieved through any other order—including the new special guardianship order—so as to justify the court dispensing with the parent's consent.

  5.  NORCAP welcomes the introduction of Special Guardianship as it appears this will enable children in future to achieve most of the benefits of adoption without having to endure the losses that may result from adoption.

  6.  Two provisions required when making a Special Guardianship order should also apply when a court makes an adoption order. They are a duty on the court to think about making a contact order and the guardian being required to let the birth parents know if the child dies.

May 2001


  1.  Letter from Professor Audrey Mullender regarding her research into the Adoption Contact Register 14 September 2000 (enclosed).

  2.  Intermediary Services for Birth Relatives Practice Guidance DH August 2000.

  3.  Adoption Search and Reunion Howe & Feast Children's Society 2000.

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