Abstract
This chapter considers the role and functions of adoption against the context of unfolding social change in England and Wales and elsewhere in the common law world. It begins with a broad review of modern adjustments to the traditional form of adoption. This includes a focus on the nature of change to the process as it becomes more ‘open’, accommodates a greater variety of children than formerly and responds to pressure from changes in the needs of adopters. It examines the causes of such adjustments and their consequences for the adoption process and for the roles of each of the parties.
The chapter then deals with each of the three main types of modern adoption as experienced in common law countries: family adoptions, agency adoptions and intercountry adoptions. It identifies the different permutations that constitute each type, provides statistical data to reveal the nature and extent of trends in their use and assesses the capacity of each to promote the welfare interests of the children involved. It assesses the extent to which adoption has, in some countries, become a discretionary adjunct to matrimonial and child care proceedings. In particular, it considers child care adoption and examines the significant differences in approaches among the common law nations. Because adoption must also be viewed in the context of other options for securing the welfare interests of children it is necessary to trace the modern policy development that, in some countries, now results in increased numbers of children subject to care orders being placed for adoption.
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Notes
- 1.
See, Down Lisburn Health and Social Services Trust and Another v. H and Another [2006] UKHL 36, at para 34.
- 2.
See, the Houghton Committee. Report of the departmental committee on the adoption of children, Cmnd 5107. 1972 which followed on from the report of The Departmental Committee on the Adoption of Children. Working paper. London: HMSO, 1970.
- 3.
See, the Dept of Health annual statistics.
- 4.
See, Office for National Statistics at: http://www.ons.gov.uk/ons/rel/vsob1/adoptions-in-england-and-wales/2012/stb-adoptions-in-england-and-wale--012-.html
- 5.
See, for example, Vernier, N. 2009. The primal wound: Understanding the adopted child. London: British Association for Adoption and Fostering. In this book the author refers to the “primal wound” as:
… “the devastation which the infant feels because of separation from its birth mother. It is the deep and consequential feeling of abandonment which the baby adoptee feels after the adoption and which may continue for the rest of his life.”
- 6.
See, for example, Triseliotis, J. 1970. Evaluation of adoption policy and practice. Scotland: University of Edinburgh.
- 7.
See, for example, Gunn—Russo v. Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566, [2002] 1 FLR 1 [2001] UKHRR 1320, [2002] Fam Law 92, QBD.
- 8.
See, Grotevant, H.D., and R.G. McRoy. 1998. Openness in adoption: Exploring family connections. Thousand Oaks: Sage, at p. 196.
- 9.
See, Brodzinsky, D., and M. Schechter. 1990. The psychology of adoption. New York: Oxford University Press, at p. 318.
- 10.
In the last years of the 1976 Act, some 50 % of adoption applications were from step-parents. Under the 2002 Act, such applicants will be directed towards a parental responsibility order/agreement as an alternative to adoption.
- 11.
See, Utting (1995) who noted that 40 % of marriages end in divorce, 20 % of families are headed by a lone parent and 8 % of dependent children live in step-families.
- 12.
See, Re MW (Adoption: Surrogacy) [1995] 2 FLR 789 where the court dismissed a surrogate mother’s opposition to an adoption application by commissioning parents in respect of a child who by then had been in the applicants care for two-and-a-half years.
- 13.
See, for example, the account of 20 years of such experience in Dalen, M., and B. Saetersdal. 1987. Transracial adoption in Norway. Adoption & Fostering 2(4): 41–46. Also Ngabonziza, D. 1988. Inter-country adoption in whose best interests. Adoption & Fostering 2(1): 35–40.
- 14.
See, Murphy, J. 2000. Child welfare in transracial adoptions: Colour-blind children and colour-blind law. In Ethnic minorities—Their families and the law, ed. J. Murphy. Oxford: Hart Publishing.
- 15.
See, for example, Tizard and Phoenix (1989) who found that transracial placements are not necessarily damaging experiences for the children concerned.
- 16.
See, Department of Health, LAC 20, 1998. Also, see: Harris, P. (ed.). 2006. In search of belonging: Reflections by transracially adopted people. London: BAAF; and Hall, B. 2013. Inside transracial adoption, 2nd ed. London: Jessica Kingsley Publishers.
- 17.
See, Fitzpatrick v. Sterling Housing Association Ltd [2001] 11 FLR 271 where the House of Lords ruled that a settled homosexual relationship did constitute a ‘family’ for the purposes of the law relating to landlord and tenant.
- 18.
See, for example, Re E (Adoption: Freeing Order) [1995] 1 FLR 382 where the Court of Appeal, albeit reluctantly, approved the placement of a girl with a single lesbian adopter.
- 19.
See, Stacey, J., and T. Biblarz. 2001, April. Does the sexual orientation of parents matter? American Sociological Review 66: 159, 176.
- 20.
See, for example: Golombok, S. 2000. Lesbian mother families. In What is a parent? ed. A. Bainham, S. Day Sclater, and M. Richards. Oxford: Hart Publishing; Patterson, C.J. 1992. Children of lesbian and gay parents. Child Development 63(5): 1025–1042; Polikoff, N. 1990. This child does have two mothers. Georgetown Law Journal 78: 459; and Rupp, M. (ed.). 2009. The life of children in same-sex partnerships. Cologne: The German Ministry of Justice.
- 21.
[1997] Fam Law 8 and 225.
- 22.
[1997] 2 FLR 406. See, also, Re E (Adoption: Freeing Order) [1995] 1 FLR 382.
- 23.
Lowe & Barry and Anor [2011] FamCA 625 at para 5.
- 24.
See, Pascoe, C.J. Issues of Forced Adoption and International Commercial Surrogacy, Federal Court of Australia, Melbourne (2nd October, 2013) at: http://www.law.monash.edu.au/about-us/events/chie-judge-pascoe-dpeech-notes.pdf
- 25.
See, Re X & Y (Foreign Surrogacy) [2009] Fam 71 at 76C.
- 26.
See, The Department of Health. 2003. The Victoria Climbie inquiry, the Laming report. London: The Stationary Office. Also, Ward, H., R. Brown, and D. Westlake. 2012. Safeguarding babies and very young children from abuse and neglect. London: Jessica Kingsley.
- 27.
See, for example, Goldstein, J., A. Freud, and A.J. Solnit. 1973. Beyond the best interests of the child. New York: Free Press, which promoted the ‘psychological parenting’ concept and where the point (contributing significantly to the rationale for permanency planning) is made that “Continuity of relationships, surroundings, and environmental influences are essential for a child’s normal development” (pp. 31–32).
- 28.
See, for example, Bowlby, J. 1969. Attachment and loss. London: Hogarth Press and Howe, D., et al. 1999. Attachment theory: Social, developmental and clinical perspectives. New York: Analytical Press. Also, see, Harris, G. 2003. The human life cycle: Infancy. In The Blackwell companion to social work, 2nd ed, ed. M. Davies. Oxford: Blackwell, at pp. 342–347 where Harris states that ‘in extended families, infants might form an attachment to family members other than the main care provider’ (p. 343). It is now accepted that an infant child is equally capable of forming an attachment to a male or female carer.
- 29.
See, Wilkes, J.R. 2002. Introduction. In Permanency planning in the child welfare system. Ottawa: Sparrow Lake Alliance: Children in Limbo Task Force, at p. 6.
- 30.
[1988] 1 AC 806, 812.
- 31.
A number of official inquiries reported on the capacity of the care system itself to permit and sustain a culture of child abuse. See, for example, Waterhouse, R. 2000. Lost in care: Report of the tribunal of inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974. London: The Stationery Office.
- 32.
The ‘outcomes research’, analysing and evaluating the care careers of looked after children, is comprised of many different reports compiled in the main from within the social work and allied professions. These include: Triseliotis, J., and M. Hill. 1984. Hard to place—The outcome of adoption and residential care. London: Heinemann Educational Books; Thoburn, J. 1980. Captive clients. London: Routledge; Milllham, S., et al. 1986. Lost in care. Aldershot: Gower; Rowe, J., M. Hundleby, and L. Garnett. 1989. Child care now—A survey of placement patterns. London: British Agencies for Adoption & Fostering; Farmer, E., and R. Parker. 1991. Trials and tribulations. London: HMSO; Parker, R., H. Ward, S. Jackson, et al. (eds.). 1991. Looking after children: Assessing outcomes in child care. London: HMSO; Bullock, R., M. Little, and S. Millham. 1993. Going home: The return of children separated from their families. Aldershot: Dartmouth Publishing Co Ltd.; Department of Health. 1998. Caring for children away from home: Messages from research. London: Wiley; Adoption as a placement choice: Argument and evidence. The Maudsley (1999); and Broad, B., R. Hayes, and C. Rushforth. 2001. Kith and Kinship care for vulnerable young people. London: National Children’s Bureau.
- 33.
See, Van Bueren, G. 1998. The international law on the rights of the child. The Netherlands: Martinus Nijhoff Publishers, at p. 93.
- 34.
The transformation of adoption practice from a patchwork of activities provided largely by voluntary societies to a comprehensive and professionalised adoption service provided in the main by local authorities dates from the recommendations of The Houghton Committee. 1972. Report of the departmental committee on the adoption of children, Cmnd 5107. London: HMSO, at para 38.
- 35.
Under s 12(6) of the Adoption Act 1976, the court was given the discretionary power to attach such conditions as it thinks fit to an adoption order.
- 36.
See, Re J (A Minor)(Adoption Order: Conditions) [1973] Fam 106, per Rees J where it was first held that continued contact was not inconsistent with adoption. Also, see, the decision of the House of Lords in Re C (A Minor)(Adoption Order: Conditions) [1989] AC 1, HL where it was re-affirmed that there was a power to attach a condition where this was in the welfare interests of the child concerned.
- 37.
See, Re C (A Minor) [1988] 1 AER 712h where both factors arose for consideration. However, also, see, Re S (Contact: Application by Sibling) [1998] 2 FLR where the court refused an adopted 9 year old child leave to apply for a contact order enabling her to resume her relationship with a 7 year old half brother with special needs who had been adopted into a different family. The application was resisted by the boy’s adoptive parents on the grounds that it would disrupt his life. The court held that the making of an adoption order was intended to be permanent and final and issues such as contact should not be considered after that event; except in the most unusual circumstances.
- 38.
See, British Association of Social Workers. 1975. Analysis of the children bill. Birmingham: The Association, which states:
It would be an intolerable situation if financial resources were made available to subsidise adoption when an allocation of similar resources to the natural parents may have prevented the break up of the family in the first place at p. 22.
Cited by Lowe, N., ‘English adoption law: Past, present and future’ op cit, at p. 330. In support of this approach it has to be noted that child care adoption is virtually non-existent in Denmark where the state heavily invests in the family support services necessary to keep vulnerable children at home.
- 39.
In 1968, the peak year for adoptions in the U.K. and Ireland, one in five of all ‘illegitimate’ children were adopted in the former jurisdiction compared with four in every five in the latter. See, also, Bridge, C., and H. Swindells. 2003. Adoption: The modern law. Bristol: Family Law, where it is stated:
By 1951, baby adoptions comprised 52 % of all adoptions. By 1968 this proportion was even greater—amounting to 76 % of all adoptions—and in the same year, 91 % of all adoptions were of illegitimate children. Adoption of illegitimate babies had become the primary focus of adoption law at p. 6.
- 40.
In 1975, the proportion of children adopted aged 10 years or more was 19 % whereas by 1987 it had grown to 27 % but has since continued a downward trend falling from 21 % in 1998 to 8.4 % in 2012. Adoptions of children aged under 1 decreased overall from 4.6 % of all adoptions in 1998 to 1.6 % in 2011 before rising slightly to 2.2 % in 2012. In contrast, the percentage of adopted children aged 1–4 has increased steadily since 1998 when they constituted 34 % of the total to reach 63 % in 2012. See, further, at: http://www.ons.gov.uk/ons/rel/vsob1/adoptions-in-england-and-wales/2012/stb-adoptions-in-england-and-wale--012-.html#tab-Adoptions-by-age-and-sex
- 41.
The percentage of adopted children, born outside of marriage, increased slightly to 85 % in 2012, up from 82 % in 2011.
- 42.
See, Re B (Minor)(Adoption: Parental Agreement) [1990] 2 FLR 383. See, also, Re G (TJ)(An Infant) [1963] 1 All ER 20 CA; Re D (Minors)(Adoption by Step-Parent) [1980] 2 FLR 103, and; Re B (A Minor)(Adoption) [1988] 18 Fam Law 172.
- 43.
See, Interdepartmental Group, DoH, Review of Adoption Law, para 3, (1992).
- 44.
[1998] 2 FLR. See, also, Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687.
- 45.
See, Bridge, C., and H. Swindells. 2003. Adoption—The modern law. Bristol: Family Law, at p. 217.
- 46.
See, Re B (Adoption: Natural Parent) [2002] 1 FLR 196 HL where the House of Lords endorsed an adoption order made by the High Court in favour of an unmarried father as sole applicant.
- 47.
See, for example, Mykitiuk, R., ‘Beyond conception: Legal determination of filiation in the context of assisted reproductive technologies’, 39 OSGOODE HALL, L.J., 2001, at p. 793.
- 48.
See, Bala, N., and C. Ashbourne. 2012. The widening concept of parent in Canada: Step-parents, same-sex partners, & parents by ART. Journal of Gender, Social Policy and the Law 20(3), at p. 9.
- 49.
See, Masson, J., D. Norbury, and S. Chatterton. 1983. Mine, yours or ours? London: HMSO, where it is noted that in 1951 a third of all adoptions involving ‘legitimate’ children and just under one-half of those who were ‘illegitimate’ were step-parent adoptions.
- 50.
See, Lowe, N. 2000. English adoption law: Past, present, and future. In Cross currents: Family law and policy in the United States and England, ed. S. Katz, J. Eekelaar, and M. Maclean. Oxford: Oxford University Press, at p. 317.
- 51.
See, Lowe, ibid, where as authority for this definition he cites Masson, J., D. Norbury, and S. Chatterton. 1983. Mine, yours or ours? London: HMSO, at p. 9.
- 52.
See, The Departmental Committee on the Adoption of Children. 1970. Working paper. London: HMSO, paras 92–94. Also, see, Report of the departmental committee on the adoption of children, Cmnd 5107, 1972.
- 53.
From 6,336 in 1992 to 1,172 in 2003 and to 1,040 in 2004. See, further, Judicial statistics. Lowe cites as his source the Inter-Departmental Review of Adoption Law, Discussion Paper No 3, The Adoption Process at p. 9.
- 54.
See, Re D (An Infant) [1959] 1 QB 229 [1958] 3 All ER 716.
- 55.
See, F v. S [1973] Fam 203 at 207, [1973] 1 All ER 722 at 725 CA. Also, see, Re B (Adoption: Natural Parent) [2002] 1 FLR 196 HL above at f/n 31.
- 56.
[1999] 1 FLR 250.
- 57.
Special guardianship orders became available in 2005 under the Adoption and Children Act 2002.
- 58.
paras 111–114.
- 59.
[2006] UKHL 43 [2006] FLR 629.
- 60.
Ibid at para 44. See, also, the Australian case Hodak, Newman and Hodak (1993) FLC 92–421 for a similar ruling (further at Chap. 10).
- 61.
Op cit, at para 44.
- 62.
For further arguments in support of kinship care see, for example, Broad, B. (ed.). 2001. Kinship care: The placement choice for children and young people. Dorset: Russell House, Greef, R. (ed.). 1999. Fostering kinship: An international perspective on kinship foster care. Aldershot: Arena and Hegar, R.L., and M. Scannapieco. 1999. Kinship foster care: Policy, practice and research. Oxford: Oxford University Press.
- 63.
See, Report of the departmental committee on the adoption of children, Cmnd 5107. London: HMSO, 1972, paras 84–90 and recommendation 13.
- 64.
A survey of six local authorities in England revealed that only 0.8 % were eventually placed for adoption (see, Rowe et al., 1989). See, also, review of research into adoption by the DoH, 1999a).
- 65.
See, Lowe, N. English adoption law: Past, present and future, op cit, at pp. 321–322, where he cites the ‘Looked After’ statistics for England as showing the following child care adoptions: 2,400 in 1997; 2,500 in 1998; and 2,900 in 1999. The Dept of Health annual statistics reveal that in England during the year ending 31 March 2002, a total of 3,400 looked after children were adopted.
- 66.
In 1966, for example, of all agency adoptions, 73 % were arranged by voluntary societies; by 1971 this had fallen to 60 %.
- 67.
See, for example, Selwyn, J., et al. 2006. Costs and outcomes of non-infant adoptions. London: BAAF.
- 68.
Despite recommendations in the Curtis Report, The care of children, Cmnd 6922, 1946 where adoption was advocated for older children in care and subsequently those of The Houghton Committee. 1972. Report of the departmental committee on the adoption of children, Cmnd 5107, which pressed for adoption to be made available to children in public care where this was in the best interests of a particular child.
- 69.
See, Lowe, N. 2000. English adoption law: Past, present and future. In Cross currents: Family law and policy in the United States and England, ed. S. Katz, J. Eekelaar, and M. Maclean. Oxford: Oxford University Press, at p. 315.
- 70.
See, Rowe et al. (1989).
- 71.
The concept of ‘freeing orders’ was first suggested by Houghton, see, Report of the departmental committee on the adoption of children, Cmnd 5107. London: HMSO, 1972, paras 173–186.
- 72.
Re O (Care or Supervision Order) [1996] 2 FLR 755, 760.
- 73.
Re C and B [2001] 1 FLR 611 at para 34.
- 74.
See, Re B (A Child)(Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, per Hale LJ at para 198.
- 75.
[2002] 2 FLR 730.
- 76.
See, for example, Haase v. Germany (2005) (App No 11057/02, ECHR).
- 77.
Application No 74969/01, ECtHR, 26.02.2004. Also, see, P, C and S v. UK (2002) 35 EHRR 31, K and T v. Finland [2001] 2 FLR 707 and Johansen v. Norway (1996) 23 EHRR 33; see, further, Chap. 4.
- 78.
[2001] 1 FLR 611 at para 31.
- 79.
See, P v. Serial No 52/2006 and Others [2007] EWCA Civ 616.
- 80.
See, for example, Aitken, G. 2002. Extending options in permanency planning. In Permanency planning in the child welfare system. Ottawa: Sparrow Lake Alliance: Children in Limbo Task Force, at pp. 16–17.
- 81.
See, The Department of Education and Skills. 2004. Draft regulations and guidance for consultation, Care planning, special guardianship. London: Department of Education and Skills, at p. 20.
- 82.
See, Maluccio, A., and E. Fein. 1983. Permanency planning: A redefinition. Child Welfare 62(3): 195–201.
- 83.
See, for example, Wolfson, R. 2012. Concurrent planning: A route to earlier permanence for young children. Seen and Heard 23(2): 46–58.
- 84.
See, Department of Education. 2012. An action plan for adoption: Tackling delay. London: Department of Education, paras 60–63.
- 85.
On 31st March 2013 the local authority child care population comprised 68,110 children, of whom 50,900 were living with foster carers. See, further, BAAF statistics at: http://www.baaf.org.uk/res/statengland
- 86.
[2001] 2 FCR 89.
- 87.
[2003] EWHC 3448 (Fam). Note, also, R (L and Others) v. Manchester City Council; R (R and Another) v. Manchester City Council [2001] EWHC Admin 707, [2002] 1 FLR 43 where the court ruled that the local authority practice of paying less to kinship carers than to foster carers was unlawful.
- 88.
See, Local Authority Circular (20), 1998. See, also: the government’s Green Paper, Every Child Matters, 2003; and Biehal, N., et al. 2010. Belonging and permanence: Outcomes in long-term foster care and adoption. London: BAAF.
- 89.
[2013] EWCA Civ 913, at para 88.
- 90.
See, further, at: http://www.baaf.org.uk/webfm_send/3095
- 91.
See, Lowe, N. English adoption law: Past, present and future, op cit, at p. 333.
- 92.
See, for example: Re P (A Minor)(Adoption) [1990] 1 FLR 96; R v. Lancashire County Council, ex parte M [1992] 1 FLR 109; and Re JK (Adoption: Transracial Placement) [1991] 2 FLR 340. Also, see, Caesar et al., 1993 and Tizard and Phoenix, 1989.
- 93.
[1990] 1 FLR 58 at p. 63. Also, see, Re O (Transracial Adoption: Contact) [1995] 2 FLR 597.
- 94.
See, Adoption: The future, Cmnd 2288. HMSO, 1993, para 4.32.
- 95.
See, Re An Adoption Application [1992] 1 FLR 341, Re AW (Adoption Application) [1992] Fam Law 539 and Re C (A Minor)(Adoption Application) [1992] Fam Law 538.
- 96.
The court may, however, retrospectively authorise payments; see, for example, Re WM (Adoption: Non-Patrial) [1997] 1 FLR 132.
- 97.
[1999] 1 FLR 370.
- 98.
[1997] 2 FLR 230. See, also, Re N [1990] 1 FLR 58 where the adoption application by white foster parents in respect of a four year old Nigerian child, placed with them when 3 weeks old, was successfully challenged by the child’s father who lived in the U.S. The court, attaching considerable weight to the father’s assertion that adoption was unknown to Nigerian law and carried resonances of slavery, warded the child giving care and control to the foster parents.
- 99.
[1996] 2 FLR 441. See, also, Re B (Adoption: Child’s Welfare) [1995] 1 FLR 895 which concerned an adoption application arising from the informal foster care arrangement made for a Gambian child. In refusing the application, Wall J placed considerable importance upon the child’s cultural inheritance as an integral aspect of its welfare.
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O’Halloran, K. (2015). The Changing Face of Adoption in the United Kingdom. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_2
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