The Legal Functions of Adoption

At each stage of the adoption process a distinct set of legal functions comes into play which are now readily recognised. They have clear roles in a statutorily defined process that, at least in contemporary western societies, is now well established and to a varying degree regulated throughout its sequence of quite different stages. Entry to the process is controlled through the application of threshold criteria to all parties. Placement of the child is subject to an authorised consent. Supervision of the child, after placement and until determination of proceedings, is usually a statutorily ascribed responsibility. The outcome of an adoption application is determined with regard to the rights of the parties but in accordance with the principle of the welfare of the child and may result in the issue of a conditional order or in an order other than the one sought. Finally, the effects of an adoption order, the possible availability of post-adoption support and of long-term services relating to information disclosure, tracing and possible re-unification and the responsibilities of the parties concerned are usually set by statute.

The central focus of this chapter is on identifying, from a U.K. perspective, the main legal functions of adoption as generally applicable in those contemporary modern western jurisdictions with a common law foundation. It does not consider the political context within which the regulatory framework for adoption is set. Instead the intention is to identify and examine the technical application of the primary legal functions. Attention is given to recent changes in emphasis and to the balance now generally struck between public and private legal interests. The chapter goes on to examine the related legislative intent and assesses the consequences of exercising the legal functions for the parties involved in the adoption process. In this way a tool kit is assembled for use in later chapters to assess and track trends in the main operational aspects of the adoption process in other contemporary jurisdictions. The chapter thereby also provides a template against which the legal functions in the adoption processes of other countries, whether or not they share a common law heritage, can be compared and evaluated. This, in turn, will enable conclusions to be drawn later in the book as to the significance of the differing political contexts in which the adoption process operates.