House of Commons - Explanatory Note
Adoption and Children Bill - continued          House of Commons

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Clause 25: Contact

81.     Clauses 25 and 26 make provision for applications for contact in respect of children placed for adoption. Ideally contact should be agreed informally between the agency, the prospective adopters and the parent, and agencies will be given guidance to this effect. However, agreement may not be possible and clauses 25 and 26 make freestanding provision in relation to contact in cases where an adoption agency is authorised to place a child for adoption under clause 18 or under a placement order. Subsection (1) provides that where an adoption agency is authorised to place a child for adoption, any contact order under section 8 of the Children Act 1989 or an order under section 34 of that Act (parental contact with children in care) ceases to have effect. The arrangements set out in previous contact orders may no longer be appropriate. The objective should be to agree whatever new arrangements for contact are appropriate given the adoptive placement. However, should agreement not be possible, an application may be made to the court for an order for contact. The application may be made by the child or the agency or the parent or other persons who are identified in subsection (3). On an application the court may make such provision as it considers appropriate for contact between the child and any other person.

Clause 26: Contact: supplementary

82.     Clause 26 makes supplemental provision in relation to contact. There may be cases where it is inappropriate for contact to take place even though provided for under an order. Subsection (2) enables the agency to refuse contact for a period of not more than 7 days if it is satisfied that it is appropriate to do so in order to safeguard the child's welfare. Regulations may set out the circumstances in which the terms of any order made under clause 25 may be departed from.

83.     Subsection (4) imposes a duty on the court making a placement order to consider the arrangements the agency has made or proposes to make in relation to contact and under subsection (5) the court may impose any conditions on contact as it thinks fit.

Clauses 27 and 28: Further consequences of placement and placement orders

84.     Clauses 27 and 28 make further provision as to the consequences of placement. Where an adoption agency is authorised to place a child for adoption under clause 18, a parent cannot apply for a residence order (clause 27(1)).

85.     If an agency is authorised to place a child for adoption (whether or not the child is placed) a person cannot cause the child to be known by a new surname or remove him from the United Kingdom except with the leave of the court or if each parent gives written consent. Prospective adopters with whom a child is placed cannot call the child by a different surname unless these conditions are satisfied. Prospective adopters may take him out of the United Kingdom on holiday for up to a month (clause 27(2) to (4)).

86.     Clause 28 makes further provision in relation to placement orders. Where a placement order is made in respect of a child and either the child is subject to a care order or the court makes a care order in the same proceedings, the care order is suspended during the period when the placement order is in force. On the making of a placement order, any order mentioned in section 8(1) of the Children Act 1989 (for example, residence orders) and any supervision order cease to have effect. Furthermore, where a placement order is in force a residence order and a supervision order cannot be made in respect of that child.

Removal provisions

87.     Clauses 29 to 34 make provision in relation to the removal of children who are or may be placed for adoption by adoption agencies, to ensure that they are only removed from placements by authorised people in the appropriate manner. Clauses 29 to 34 apply whether or not the child in question is in England or Wales.

Clause 29: General prohibitions on removal

88.     Clause 29 imposes general restrictions on removal. Clause 29 is subject to clauses 30, 31 and 32. Where a child is placed with prospective adopters under clause 18 it is an offence for a person other than the agency to remove the child from that placement (subsections (1) and (8)). Subsection (1) applies even if the parent has withdrawn his consent to placement. If a child is accommodated by a local authority and they are under a duty to apply for a placement order or have applied and the application has not been disposed of, the child may not be removed from the accommodation pending the determination of that application without the leave of the court (subsections (2) and (8)). Where an agency is authorised to place a child for adoption but the child is not yet placed and is being provided with accommodation by an agency in, for example, a foster placement or a children's home, it is an offence for a person other than the agency to remove the child from that accommodation (subsections (3) and (8)). Subsection (3) applies even if the parent has withdrawn his consent to placement.

89.     The general prohibitions on removal set out in this clause are subject to the specific provisions made in clauses 30 to 32 (subsection (4)). But the provisions in clauses 29 to 32 covering prohibition on removal do not prevent the removal of a child who is arrested, or removal as a result of the exercise by a local authority or other person of a power conferred by any enactment (excluding the right under section 20(8) of the Children Act 1989 of a person who has parental responsibility for a child to remove a child voluntarily accommodated by a local authority (subsections (6) and (7)).

90.     Subsection (8) provides that a person who removes the child in breach of subsection (1), (2) or (3) is liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding level 5 on the standard scale, or both.

Clause 30: Section 29: recovery by parent etc. where child not yet placed

91.     Clause 30 applies where a child is not yet placed for adoption but is being provided with accommodation by an adoption agency and consent to placement has been withdrawn (subsection (1)). Consent must be withdrawn in the form prescribed. If the parent informs the agency that he wishes the child to be returned to him, the agency must return the child to him within seven days unless the agency is a local authority who are under a duty to apply for a placement order or have applied for such an order (subsection (2)). If the child is subject to a care order then subsection (2) will not apply and by virtue of subsection (3) the provisions in sections 49 and 50 of the Children Act 1989 (abduction of children in care and recovery) are to apply.

Clause 31: Section 29: exception for recovery by parent etc. where agency not opposed

92.     Clause 31 applies where a child is placed for adoption with prospective adopters under clause 18, the parent has withdrawn consent and the agency agrees the child should be returned to his parent (subsection (1)).

93.     If the parent informs the agency he wishes the child to be returned to him, the agency must give notice to the prospective adopters that the parent wishes the child to be returned to him ("notice") and the prospective adopters have to return the child to the agency within 14 days (subsection (2)). If the prospective adopters do not return the child, they commit an offence and are liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale, or both (subsection (3)). The agency must then return the child to his parent (subsection (4)).

94.     If before notice of removal is given, an application for an adoption order in England and Wales (or Scotland or Northern Ireland) or a residence order or for leave to apply for a residence order was made in respect of the child, and that application has not been disposed of, the prospective adopters do not have to return the child unless the court makes an order to that effect (subsection (5)).

Clause 32: Section 29: recovery by parent etc. where application for placement order refused

95.     Clause 32 applies where a child is placed for adoption under clause 18, the local authority's application for a placement order has been refused and the parent wishes the child to be returned to him (subsection (1)). The prospective adopters must return the child to the authority on the date set by the court and as soon as they do, the child must be returned to his parent (subsections (2) and (4)). If the prospective adopters do not do so, they commit an offence and are liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale, or both (subsection (3)).

Clause 33: Placement orders: prohibition on removal

96.     Clause 33 applies where a placement order is in force or has been revoked, but the child has not been returned by the prospective adopters or remains in any accommodation provided by a local authority (subsection (1)). It is an offence, punishable as set out in paragraph 98, for a person (other than a local authority) to remove the child from the prospective adopters or accommodation provided by the agency (subsections (1) and (5)).

97.     Where a placement order has been revoked it will be for the court when they revoke the order to determine whether the child is to remain with the prospective adopters or to be returned to the parent (subsections (3) and (4)). If the court determines the child should not remain with the prospective adopters, they must return to the child to the local authority, otherwise they commit an offence.

98.     Subsections (4) and (5) provide that a person who removes a child, or fails to return a child, is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale or both.

Clause 34: Return of child in other cases

99.     Clause 34 applies in cases where the prospective adopters want to return the child or the adoption agency has decided that the child should not remain with the prospective adopters. In the first case the prospective adopters must give notice to the agency that they want to return the child and the agency has to collect the child (subsection (1)). The agency must also tell the child's parent so he may consider his position. In the second case, the agency must give notice to the prospective adopters that it does not want the child to remain with them and the prospective adopters must return the child within 7 days. Again, the agency must inform the child's parent (subsection (2)). If the prospective adopters fail to return the child, they commit an offence and are liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding level 5 of the standard scale, or both (subsection (4)).

100.     If, before notice is given by the agency, an application for an adoption order, residence order, or leave to apply for a residence order was made and that application has not been disposed of, the prospective adopters are not required to return the child to the agency unless the court makes an order to that effect (subsection (5)).

Clauses 35 to 39: Restrictions on removal

101.     These clauses cover restrictions on the removal of the child in non-agency cases, i.e. where the child has not been placed for adoption by an adoption agency. These include step-parent adoptions, cases where local authority foster parents wish to adopt a child placed with them, and adoptions by relatives and private foster parents.

Clause 35: Restrictions on removal

102.     Clause 35 provides that where an application for an adoption order has been made, notice of intention to apply to adopt has been given (as required under clause 43) or the court's leave sought to make an application, a child may only be removed in accordance with the provisions made in clauses 35 to 39. None of the restrictions prevent removal in the case of the child being arrested. Where leave to apply to adopt has been granted the restrictions on removal extend for three days to allow notice of intention to be given (subsection (3)). In the case of notice of intention to adopt the restrictions on removal apply for 4 months (under clause 43 there must be a minimum of 3 months between the giving of notice and an application to adopt), but a second notice given within 5 months of the first will not trigger protection. This is to prevent the giving of repeated notices of intention to adopt as a means of preventing removal of the child (subsection (2)).

103.     Where a parent may remove his child, the persons with whom the child has his home must return the child to the parent at once. A person who fails to comply with this provision or removes a child in breach of clause 35 is guilty of an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months, or a fine not exceeding level 5 on the standard scale, or both.

Clause 36: Applicants for adoption

104.     Where an application for adoption has been made the child may only be removed with the leave of the court, or by a local authority or other person in exercise of a power conferred by any enactment (for example, for child protection purposes under the Children Act 1989). Once an application for an adoption order has been made in respect of a child voluntarily accommodated under section 20 of the Children Act the child's parents may not automatically remove the child.

Clause 37: Local authority foster parents

105.     Where a local authority foster parent has given notice of intention to adopt, which they may do once the child has lived with them for one year, then the child may only be removed with the leave of the court, by a local authority or other person in the exercise of a power conferred by any enactment or, if the child is voluntarily accommodated under section 20 of the Children Act 1989, by a person who has parental responsibility for the child (subsection (5)). But where the child has been with the foster carer for 5 years or more an application for leave to make an application to adopt has been made but not disposed of, the right of a person with parental responsibility for the child under section 20(8) of the Children Act for voluntarily accommodated children does not apply (subsections (2) and (3)).

Clause 38: Step parents

106.     Where a step parent has given notice of intention to apply to adopt, the child may only be removed with the leave of the court or by a local authority or person in the exercise of a power conferred by any enactment (other than section 20(8) of the Children Act 1989), or by a parent or guardian of the child (unless the child has lived with the step parents for 3 out of the last 5 years, in which case a parent may not remove the child).

Clause 39: Other non-agency cases

107.     In these cases where notice of intention to adopt has been given or leave has been applied for under clause 41(6) and the application has not been disposed of, the child may only be removed with the leave of the court, by a local authority or other person acting under statutory powers (other than section 20(8) of the Children Act 1989).

Clause 40: Recovery orders

108.     Clause 40 makes provision for what is to happen where a child is removed, or there are reasonable grounds for believing that a person intends to remove a child, in breach of clauses 29 to 34.

109.     In those circumstances an application may be made to the court and the court may by order -

  • direct any person who is in a position to do so to produce the child,

  • authorise the removal of the child by an authorised person,

  • require anyone who has information as to the child's whereabouts to disclose that information to a constable or officer of the court, or

  • authorise a constable to enter any premises specified in the order (if there are reasonable grounds for believing the child is there) and search for the child, using reasonable force if necessary.

110.     Authorised persons are any person named by the court, any constable, or any person who is authorised to exercise any power under the order by the adoption agency (subsections (2) to (4)).

111.     If a person intentionally obstructs an authorised person exercising the power of removal he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

112.     A person who is required to disclose information must disclose that information even though it might amount to evidence that he had committed an offence. However, in any criminal proceedings in which the person is charged with an offence (except one which is excluded in subsection (8) e.g. offences under section (2) or (5) of the Perjury Act 1911) the prosecution cannot adduce evidence relating to the information provided or ask questions about it, unless it is raised by or on behalf of that person.

113.     Subsection (9) makes provision for an order made in England and Wales under clause 40 to have effect in Scotland as if it were an order of the courts there.

Clause 41: Child to live with adopters before application

114.     Clause 41 sets out the period a child must live with the applicants before they can apply for an adoption order. Where the child is placed for adoption by an adoption agency (or pursuant to an order of the High Court) an application for an adoption order may not be made unless the child has had his home with the applicants at all times in the 10 weeks before the application is made. For step-parent adoptions, the child is required to have had his home with the prospective adopters for a period of at least 6 months before the application may be made (subsection (2)). The period is one year in the case of non-agency applications by local authority foster parents and 3 out of the last 5 years in any other non-agency cases, unless the court gives leave for an earlier application (subsections (4) to (6)).

115.     Furthermore, the court may not make an adoption order unless it is satisfied the agency, or the local authority in non-agency cases, have had sufficient opportunities to see the child with the applicants in their home (subsection (7)).

Clause 42: Reports where child placed by agency

116.     The adoption agency which places the child for adoption is responsible for preparing for the court a report on the suitability of the applicants and any other matters relevant to the operation of clause 1 and for assisting the court as it may direct. The report should in particular address the matters in the welfare checklist.

Clause 43: Notice of intention to adopt

117.     Clause 43 provides that an adoption order may not be made in respect of a child in a non-agency case unless the proposed adopters have given notice of intention to adopt to their local authority (subsection (2)). The notice must be given not more than two years or less than three months before the application is made for the adoption order (subsection (3)). Where the local authority receive a notice of intention to adopt they must investigate and are responsible for preparing a report for the court which includes the suitability of the proposed adopters and any other matters relevant to the operation of clause 1 (subsections (5) and (6)). Where a person needs leave to apply for an adoption order under clause 43(4) and (5) they cannot give notice of intention to apply to adopt unless they have the court's leave to make the adoption application (subsection (4)).

Clause 44: Adoption orders

118.     Clause 44 provides for the effect of an adoption order. It gives parental responsibility for a child to the adopters. It extinguishes the birth parent's parental responsibility, any order under the Children Act 1989 (which includes residence orders) and any duty in an agreement or an order of a court to make maintenance payments (subsection (2)). A step-parent adoption does not affect the parental responsibility of the parent of the adopted child or any duties of that parent (subsection (3)). Subsection (5) provides that an adoption order can be made even if the child to be adopted is already an adopted child.

119.     Once an adoption order is made, any liabilities of the birth parent under the Child Support Act 1991 will cease to have effect. A parent for the purposes of that Act is defined as any person who is in law the mother or father of the child (see section 54(1) of that Act). Once a child is adopted the birth parent ceases to be the parent of the child, and the adoptive parents become the parents of the child for the purposes of that Act. On adoption any existing maintenance assessment will cease to have effect because the birth parent ceases to be a parent under that Act. On adoption a court order (if any) for the child's maintenance will cease by virtue of clause 44(2)(c).

Clause 45: Conditions for making adoption orders

120.     Clause 45 is about the conditions which must be satisfied before an adoption order can be made. One of three conditions must be satisfied. The first condition is that the court is satisfied that the parent consents to the making of the adoption order or has given advance consent to the making of the adoption order under clause 19 or that the parent's consent should be dispensed with. Where the parent has given advance consent to the adoption under clause 19 he may only oppose the making of the adoption order with the leave of the court

121.     The second condition is that the child has been placed for adoption by an adoption agency with the prospective adopters who are applying for the order and either the child was placed for adoption with the consent of the parent under clause 18 or under a placement order and the parent does not oppose the making of the adoption order. The parent may only oppose the making of the order with the leave of the court.

122.     Subsection (7) provides that the court cannot give leave under subsection (3) or (5) unless it is satisfied that there has been a change of circumstances since the consent was given or the placement order was made. For example, in a case where a placement order was made on the grounds of the child's welfare because of parental drug or alcohol abuse, such a change of circumstances might include proven and successful rehabilitation. Where a mother consented to placement before her baby was 6 weeks old, and did not subsequently confirm that consent, she does not need the leave of the court to oppose the adoption order.

123.     The third condition is that the child is free for adoption by virtue of a freeing order made in England and Wales, Scotland or Northern Ireland. The provisions in the Adoption Act 1976 relating to freeing are repealed by the Bill.

124.     An adoption order may not be made in relation to a person who is married or who has attained the age of 19 (subsections (8) and (9)).

Clause 46: Restrictions on making adoption orders

125.     Clause 46 provides that a court may not hear an application for an adoption order where a previous application by the same adopters in respect of the same child was refused, unless it appears to the court that there is a change of circumstances or other reason which justifies the second application.

Clause 47: Applications for adoption

126.     Clause 47 provides that an application for an adoption order may be made by a married couple or one person but only if it is made under clause 47 or 48 and the condition as to domicile or habitual residence is satisfied. An application for an adoption order may only be made if the person to be adopted has not reached 18 by the date of the application.

Clause 48: Adoption by married couple

127.     Under clause 48 an application for an adoption order by a married couple may only be made where both spouses have reached 21. However, where one spouse is the mother or father of a child to be adopted, an application may be made if that spouse is 18 or over and the other spouse is 21 or over.

Clause 49: Adoption by one person

128.     Clause 49 provides that an application may be made by one person who is 21 and is not married. In certain circumstances, an adoption application may be made by a single person who is married. For example, a step-parent may adopt the child of the person he is married to. This means that the parent is no longer required to make a joint application to adopt his own child with the step-parent as is presently the case.

Clause 50: Parental etc. consent

129.     Clause 50 applies generally to placement and adoption and covers the giving and withdrawal of consent to placement or to adoption (including advance consent to adoption) (subsection (2)).

130.     Dispensing with the parent's consent is relevant in relation to the making of placement orders and adoption orders. Subsection (1) provides that the court cannot dispense with the consent of the parent to the child being placed for adoption or to the making of an adoption order in respect of the child unless it is satisfied that the parent cannot be found or is incapable of giving consent or the welfare of the child requires the consent to be dispensed with. Clause 1 applies to a decision about whether or not to dispense with the consent of the parent to a placement order or an adoption order. The child's interests are paramount and the welfare checklist in clause 1(4) recognises the importance of the child's relationship with his parents and their ability and willingness to provide him with a secure home and otherwise to meet his needs.

131.     Any consent given by the mother of a child to the making of an adoption order is ineffective if it is given less than 6 weeks after the child's birth (subsection (3)). This reflects the European Convention on the Adoption of Children (Strasbourg 24 April 1967). Although a mother may not consent to the making of the adoption order until her child is at least 6 weeks old, she may consent to placement for adoption at any time after the child is born.

132.     Subsection (5) defines what is meant by consent for the purposes of Chapter 3. Consent means consent which is given freely, unconditionally and with full understanding of what is involved. A person can give consent to adoption without knowing the identity of the persons in whose favour the adoption order will be made. Regulations are to prescribe the form of consent (and withdrawal of consent) in a way which allows the parent to understand the position clearly. The regulations will also set out the effect of consent (subsection (7)). Subsection (4) provides that once an application for an adoption order has been made any consent that has been given to placement for adoption or consent to final adoption may not be withdrawn. If the parent wishes to oppose the adoption order in these circumstances they must seek the court's leave under clause 45(3) or (5). Subsections (8) and (9) deal with the situation where an unmarried mother gives consent to placement under clause 18 and subsequently the child's father acquires parental responsibility for the child, by marriage or a parental responsibility agreement or order under the Children Act 1989. Without subsection (8) authority for the placement would lapse immediately. The father would, of course, be able to withdraw consent in the case of a placement for adoption which is the same position the mother is in. Where the mother has given advance consent to adoption, the father would be given notice of the application for an adoption order and would be able to oppose, with the leave of the court, the making of the order.

 
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Prepared: 19 October 2001