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

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Clause 51: Modification of 1989 Act in relation to adoption

133.     Under the Bill a child who is authorised to be placed for adoption by a local authority is now to be treated as looked after by the authority whether or not he is actually placed for adoption. The intention in extending the 'looked after' status to children where there is authorisation to place for adoption is to ensure that it is clear that the local authority are to have a continuing responsibility for managing and overseeing the child's future until an adoption order is made, and regularly reviewing their progress. However, in order to reflect the particular circumstances of placement for adoption, certain provisions in the Children Act 1989 will need to be disapplied where a local authority are authorised to place a child for adoption, whether or not the child is placed. In relation to, for example, section 22(4)(b), (c) and (d) and 5(b) it may not be appropriate (whether the child is placed or not) for an authority to be under a duty to consult the child's parent or other relatives before taking any decision with respect to the child so the duty will need to be disapplied. There could be cases where it might be appropriate but the local authority are to consider this on a case by case basis. Similarly, where a child is placed for adoption with prospective adopters, the authority are to be under an obligation to ascertain and take the views of the prospective adopters with whom the child is placed before making a decision with respect to that child. The regulations enable paragraph 15 of Schedule 2 of the Children Act 1989 to be disapplied. That provides that a local authority looking after a child must endeavour to promote contact between the child and his parent unless it is not reasonably practicable or consistent with the child's welfare. This duty is not to apply where a local authority are authorised to place a child for adoption. Guidance will be given to local authorities to deal with the issue of contact on a case by case basis and the new provisions in clauses 25 and 26 will enable a parent, for example, to make an application for contact with his child.

Clause 52: Revocation of adoptions on legitimation

134.     Clause 52 provides that an adoption order may, on application, be revoked in circumstances where a child is legitimised by the marriage of his natural parents to each other.

Disclosure of information about a person's adoption

135.     Clauses 53 to 62 introduce new provisions on the information that adoption agencies must keep in relation to a person's adoption, the information that they must release to adoptive parents and to adopted adults on request, the information that courts must release to adopted adults on request and the information that adoption agencies may release to adopted adults, adoptive parents and others. Many of the provisions on the disclosure of information provide powers for the making of regulations to enable the necessary detail to be set out in secondary legislation.

136.     These provisions cover three types of information - protected information, section 76 information, and information that does not fall into either of the two preceding categories, such as background information. Protected information is information that identifies or could identify an individual when combined with other information disclosed by the adoption agency (and includes information that would identify someone as the source of information, such as a referee) and whose disclosure is restricted under this group of clauses. Such information could include residence, educational and employment addresses, photographic or audio-visual material, case records and legal and medical information held by adoption agencies. Section 76 information refers to information covered by clause 76 of the Bill which is information held by the Registrar General for the purpose of maintaining a linking index which traces the connection between a person's entry on the register of live births or other records and a corresponding entry in the Adopted Children Register. Background information will include information such as the child's birth details, medical history, interests, any special needs and progress. Such information will assist the adopters in the care and upbringing of the child.

137.     When the Bill is enacted, it will establish a new system for access to protected information and section 76 information about adopted persons, and others involved in their adoption. There will be a single point of access to section 76 information through adoption agencies. Currently information about an adopted person is held by two sources: the adopted person's adoption agency, which would normally hold case details and other information, and the Registrar General, who holds birth records and basic information about the adopted person's adoption, such as his adoptive name and the names of his adoptive parents. Adoption agencies may use their discretion to provide an adopted person with information from agency records about their background. There are considerable variations in practice, which were outlined in the White Paper Adoption: a new approach.

138.     Many adoptions are now made on an open basis. Open adoptions are adoptions where it is seen to be beneficial for the child for the exchange of information and/or contact to take place between the birth and adoptive families. Often the child knows from an early stage that he or she has been adopted; the adoptive parents and the adopted person have identifying information about the birth parents; and the birth parents have identifying information about the adoptive family and the adopted child. The measures in the Bill that provide for the safeguarding of identifying information are intended to provide for the minority of adoptions where the sharing of such information is not seen to be appropriate in the circumstances and to ensure that where sensitive information is shared the views and interests of all parties are considered. To ensure that arrangements for open adoptions are clear and that they are not hindered where there is agreement clause 54(6) provides for the disclosure of protected information and section 76 information where an agreement is reached that includes the adoption agency. The intention is to provide for means to underpin an agreement between the adoption agency, the adoptive parents and the birth parents for the sharing of identifying information where the agency considers that an open adoption agreement would benefit the child's welfare and best interests.

139.     The Registrar General will retain his duty to maintain the Adopted Children Register and the Adoption Contact Register, but access to section 76 information will be provided through the adoption agency, as the agency is best placed to undertake this sensitive task. There will be a new right for adopted people to have access to a standard package of prescribed information about their former lives from their adoption agency records when they reach the age of 18.

140.     When an adopted person reaches the age of 18 he may ask the adoption agency to disclose protected information about his birth relatives and will be able to grant or withhold consent to the release of protected information about himself. An adopted person aged under 18 may also make a similar request to the adoption agency in exceptional circumstances. Birth parents will be asked at the time of the adoption order whether or not they object to the release of identifying information about themselves. Regulations will set out a framework within which adoption agencies will make decisions about the disclosure of information about a person's adoption. The discretion provided in these regulations will be balanced by a new right for those seeking protected information and or section 76 information about another person to apply for a review of the agency's determination by an independent panel.

141.     The new system will only apply to adoptions that take place after the Bill has been enacted. Previous arrangements for access to information will continue to apply to those adopted prior to the date of implementation of the Bill.

Clause 53: Information to be kept about a person's adoption

142.     Clause 53 provides a power to make regulations to prescribe the information that an adoption agency must keep in relation to a person's adoption, the form it should take and the way it should be kept. The information kept will be about the adopted person, his birth parents and siblings, his adoptive parents and siblings, other relatives, and social workers' reports. Subsection (3) provides a power to make regulations for the transfer of information between adoption agencies, for example where the original adoption agency is ceasing to operate.

Clause 54: Restrictions on disclosure of protected etc. information

143.     Clause 54 defines protected information and section 76 information and provides for the sharing of protected information by agreement.

144.     Subsection (1) sets out that disclosure of identifying information that is held by an adoption agency must be made in accordance with these provisions (clauses 53 to 62). Subsection (3) defines identifying information as any information which identifies a person, either on its own or when combined with other information that is disclosed by the adoption agency. This would include names, residential, educational and employment addresses, photographic or audio-visual material, case records and legal and medical information held by adoption agencies. Subsection (4) sets out that the provision of information held by an adoption agency to enable an adopted person access to his birth record must be made in accordance with these provisions (clauses 53 to 62). Subsection (6) provides for the disclosure of protected information where an agreement is reached that includes the adoption agency. This is intended to allow agreement between the adoption agency, the adoptive parents and the birth parents for the sharing of protected information.

Clause 55: Disclosure of other information

145.     Clause 55 places requirements on adoption agencies for the disclosure of information which is not defined as protected information and is not held by the Registrar General under clause 76. Subsection (2) enables an agency to disclose this information to any person for the purposes of its functions. Such disclosure must be in accordance with prescribed arrangements. Subsection (3) provides a power to make regulations to set out when the adoption agency must disclose prescribed information to a prescribed person. It is envisaged that there may be circumstances where an adoption agency should be required to provide information to a person conducting an Inquiry under clause 16, a person considering complaints against an agency or to the Children and Family Court Advisory and Support Service. Subsection (4) provides that information about a child may be disclosed to prospective adopters only if it is prescribed through regulations for that purpose. Such information would be information about the child's birth details, his medical history, his interests, any special needs and his progress.

Clause 56: Offence

146.     Clause 56 enables regulations made under this group of clauses to provide that a registered adoption society which discloses information in contravention of clause 54 or clause 55(4) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale. Clause 14 provides a default power for the appropriate Minister (defined in clause 129). This could in appropriate cases be used in relation with local authorities that disclose information in contravention of these provisions.

Clause 57: Disclosing information to adopters

147.     Clause 57 sets out requirements for adoption agencies to disclose information to adopters as soon as practicable after the making of an adoption order. Subsection (1) provides a power to make regulations for prescribing the information to be disclosed to the adopters, and provides that it must not be protected information about the adopted person or section 76 information. Subsection (2) provides a power to make regulations to authorise the adoption agency to withhold information which would usually be disclosed under subsection (1). The broad intention of this is to ensure that the adoptive parents are given all the information, other than identifying information about others, that they need in order to care for and support the adopted child. However, there may be exceptional circumstances where some information may need to be withheld from them. This might be, for example, where the birth parents pass on information about themselves or other relatives which they would like the adopted person to have when they reach the age of 18, but which they would not wish to share with the adoptive parents and which has no bearing on the upbringing of the child. Subsection (4) provides a power to make regulations for the adoption agency to disclose this prescribed information to the court which made the adoption order. This would enable the adopted person to obtain this information from the court when he reaches the age of 18, should he wish to do so, along with information held in the court's own records about his adoption.

Clause 58: Disclosing information to adopted adult

148.     Clause 58 makes provision for the disclosure of information held by adoption agencies and courts to adopted adults who have attained the age of 18. It gives the adopted adult new rights, such as the right under subsection (2) to receive the same information as his adoptive parents received under clause 57. Any information withheld from the adoptive parents under clause 57(2) will be given to the adopted person. Under subsection (3) the adopted person has the right to request from the court a copy of a prescribed document or prescribed order relating to his adoption. The documents will be prescribed in rules made by the Lord Chancellor. Under subsection (4) the documents which the adopted person may request from the court will not contain protected information or section 76 information. Subsection (5) provides a power to make regulations to authorise an adoption agency to disclose to the adopted person protected information in relation to another person or information held by the Registrar General under clause 76 in his own or another case. The adoption agency will need to consider the views and the best interests of all those affected in determining whether to release such information in accordance with the regulations. Subsection (6) requires that the regulations made under subsection (5) will provide that, unless the disclosure is made in prescribed circumstances, protected information and section 76 information must not be disclosed to the adopted person whilst there is an effective objection to that disclosure.

Clause 59: Disclosing protected etc. information in other circumstances

149.     Clause 59 provides under subsection (1) a power to make regulations for the disclosure by an adoption agency of protected information in relation to any person or section 76 information to an adopted person under the age of 18. The intention of this provision is to provide for the disclosure of identifying information if the adoption agency considers that the circumstances of the application for disclosure of protected information or section 76 information are exceptional and that it is in the interests of the adopted child's welfare, health and safety for the information to be disclosed. An example would be medical information. Subsection (2) provides a corresponding power to make regulations for the release of such information to a person who is not an adopted person. Subsection (3) provides that regulations made under subsections (1) or (2) must make provision for ensuring that protected information and section 76 information is not disclosed whilst there is an effective objection to that disclosure, unless disclosure is made in prescribed circumstances.

Clause 60: Counselling

150.     Clause 60 makes provision in respect of counselling for those seeking information under these clauses, those considering consenting to or objecting to the disclosure of information, and those considering an agreement for the sharing of identifying information through an agreement made under clause 54(6). Subsection (1) provides a power to make regulations to require adoption agencies to provide information about access to counselling services and subsection (2) provides for regulations to require adoption agencies to make arrangements to secure the provision of counselling. The intention is to make counselling available if it is requested by a person requesting protected or section 76 information, by a person who is considering whether to consent or object to the disclosure of such information, or by a person considering making an agreement under clause 54(6). Subsection (3) provides a power to make regulations to enable adoption agencies to disclose the information that is needed by the counselling agency for the purposes of providing the counselling. Where the counselling it to be provided outside the United Kingdom, the adoption agency may require the person who is to receive the counselling to pay a prescribed fee.

Clause 61: Other provision to be made by regulations

151.     Clause 61 provides for a group of powers through regulations which will be necessary to balance the rights of individuals, and the operation of the new duties for adoption agencies and the Registrar General under clauses 53 to 62. Subsection (1) provides a power to make regulations for stipulating the operation by adoption agencies of their functions under clauses 53 to 62, and the manner in which information may be received by adoption agencies. For example, how applications for protected information or section 76 information, the giving of consent to disclosure or the registration of an objection to disclosure should be received.

152.     Subsection (2) provides a power to make regulations for prescribing the circumstances in which a person may object to the disclosure of information which is protected information or section 76 information in relation to him; the form of objections and the manner in which they are to be recorded; the recording of agreements made under clause 54(6); the circumstances in which objections are to be treated as effective; the circumstances in which a person may be treated as having objected; and the information to be provided on an application for the disclosure of information under these provisions.

153.     Subsection (3) provides a power to make regulations for requiring adoption agencies to give prescribed persons prescribed information about their rights or opportunities to seek information or to object to its disclosure. For example, that adoption agencies must inform the birth parents of their right to object to the disclosure of identifying information prior to the making of the adoption order. This subsection also provides a power to make regulations for requiring adoption agencies to make enquiries in prescribed circumstances for discovering whether a person objects to the disclosure of information about him.

154.     Under subsection (3)(c), regulations may be made to require adoption agencies to seek prescribed information from, or give prescribed information to, the Registrar General. It is envisaged that adoption agencies will be required to obtain information held on the adopted person's birth record from the Registrar General, if the agency receives a request from the adopted person for that information.

155.     Subsection (4) provides a power to make regulations for the Registrar General to be required to disclose to an adopted person any information which he needs to help him

contact his adoption agency, or the agency which holds his information and to disclose to the appropriate adoption agency information required by that agency about an entry relating to the adopted person on the Adoption Contact Register. This may assist the adoption agency in ascertaining the wishes of an adopted person or of a particular relative in relation to contact with the other party.

156.     Subsection (5) provides a power to make regulations for enabling an adopted person to authorise another person to receive information on his behalf in relation to clauses 53 to 62. Subsection (6) provides a power to make regulations for the payment of fees to the adoption agency by anybody, other than the adopted person in respect of any information disclosed to him about any person related to him through blood or marriage (other than an adoptive relative), who applies to the agency under clauses 58 or 59 for information. Subsection (7) provides a power to make regulations for the payment of a fee by an adoption agency to the Registrar General for his disclosure of information on the Adoption Contact Register.

Chapter 4 - Status of Adopted Children

157.     Chapter 4 provides for the status of adopted children, thereby making clear how they are to be treated in law.

Clause 63: Meaning of adoption in Chapter 4

158.     Clause 63 sets out the meaning of "adoption" in Chapter 4. For the purpose of this Chapter adoption means adoption by adoption orders made in England, Wales, Scotland or Northern Ireland, the Channel Islands, the Isle of Man and countries outside the British Islands which have implemented the Hague convention, overseas adoptions and adoptions recognised by the law of England and Wales and effected under the law of any other country. References to adoption are to adoptions effected both before and after the date on which Chapter 4 comes into force.

Clause 64: Status conferred by adoption

159.     Clause 64 provides for the determination of the legal status of an adopted child. Subsection (1)(a) provides that where a person is adopted by a married couple he is to be treated in law as if he was born as a child of that marriage. Subsection (1)(b) provides that where a person is adopted by a person married to his parent (generally termed a step-parent adoption), he is to be treated as if he had been born to the marriage of that parent and the adopter. Whether the adopted person was born after the marriage occurred is irrelevant to both subsections (1)(a) and (1)(b). Subsection (1)(c) provides that in any other case an adopted person is to be treated in law as if he had been born to the adopter in marriage, but he is not to be treated as being a child of any actual marriage of the adopter.

160.     Subsection (2)(a) provides that in a step-parent adoption the adopted person is only to be treated in law as the child of the adopter and the person to whom the adopter is married. In any other circumstances subsection (2)(b) provides that an adopted person is to be treated only in law as the child of the adopter or adopters. However, subsection (3) provides that where the adopter is both a sole adopter and the adopted person's natural parent, subsection (2)(b) is to have no effect with respect to anything dependant on the relationship to that parent, for example entitlement to property. A single parent may, for example, adopt his own child so that the child may cease to be illegitimate (although this now happens rarely). In such cases subsection (3) provides that the date of the child's birth rather than the date of his adoption is to apply in respect of anything dependent on his relationship to his parent.

161.     Subsection (4) provides that this clause has effect from the date of an adoption order being made in respect of an individual or, if the adoption order precedes the commencement of this provision, the date of commencement of the provision. Subsection (5) confirms that subject to the other provisions of Chapter 4 and Schedule 4, this clause applies for the interpretation of enactments or instruments passed both before and after a person's adoption. It also has effect as respects events taking place after the adoption order has been made or after the commencement of the clause (whichever is the later).

162.     The declaration in section 39(4) of the Adoption Act 1976 has not been re-enacted as it is implicit from the other provisions in the clause that an adopted child is not illegitimate.

163.     The provisions in the clause are intended only to clarify how an adopted child should be treated in law.

Clause 65: Adoptive relatives

164.     Clause 65 enables a relationship that exists by virtue of clause 64 to be described in law as an adoptive relationship. A male adopter may be referred to as an adoptive father and a female adopter as an adoptive mother. This principle is also extended to any other relative in an adoptive relationship. However, it does not prevent any term not qualified by the word "adoptive" from being treated as including an adoptive relative.

Clause 66: Rules of interpretation for instruments concerning property

165.     Clause 66 sets out the rules of interpretation for any instrument concerning the disposition of property. These rules are subject to any contrary indication and to Schedule 4 of the Bill.

166.     Subsection (2) applies where a disposition depends on the date of birth of a child or children of an adoptive parent(s). For the purposes of the disposition the adopted person is to be treated as having been born on the date of the adoption order. Where two or more people have been adopted on the same date they are to be treated as if they had both been born on that date but in the order of their actual births. Subsection (3) gives examples of phrases in wills on which subsection (2) can operate.

167.     Subsection (4) allows an adopted person to retain certain interests vested in him before his adoption. Subsection (5) provides that, where it is necessary to determine for the purposes of a disposition of property whether a woman can have a child, it is to be presumed that when she has attained 55 years of age she will not adopt a child after the execution of the instrument, and if she does that child will not be treated either as her child or the child of her spouse for the purposes of that instrument.

Clause 67: Dispositions depending on date of birth

168.     Clause 67 provides that where a child is born illegitimate and adopted by one of his natural parents as the sole adoptive parent, the date of his birth rather than the date of his adoption is taken into account in respect of entitlement to property. Subsection (2) sets out an example of when this might apply.

 
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Prepared: 19 October 2001