Woodfines’ Family Law team represents many cases where adoption is the final care plan for a child, and we have recently seen that it is becoming increasingly common to pursue adoption within the extended family.
Social history has shown us that it has not been uncommon for children to have been brought up by extended family members, sometimes believing them to be their parents through informal arrangements within the family without any court or other professional intervention. Now, some Local Authorities are choosing to pursue this option in care proceedings over other options available to them, such as Care Orders or Special Guardianship Orders; and it is dividing the judicial community.
Before it was legalised in the UK in 1926, adoption was an informal and generally secretive procedure which gave the adoptive parents no rights whatsoever: a biological parent could appear at any time and demand custody of a child they had neither seen nor contributed to the care of for years at a time. Children who were adopted were placed with strangers who had no links to the birth family whatsoever, but who were believed could provide a good, stable, moral home for the child.
Historically, adoption by family members was rarely considered appropriate by the courts because it legally and permanently changed family arrangements. For example, when a child is adopted by their Aunt and Uncle they legally become the child’s new parents and any children they may have go from being cousins to being siblings to the child, and the child’s birth parents become their Aunt and Uncle. However, with the number of children waiting to be adopted increasing by 7% (as of May 2018) and the number of adopters decreasing, Inter Family Adoption, as it is known, is now becoming a regular feature within the Family Courts.
In November 2013, Sir James Munby, the former President of the Family Division of the High Court, ruled the education secretary's six-month target for adoptions should not be allowed to break up families unnecessarily. He said grandparents and other family members should be considered before children were placed for adoption.
The introduction of the Children and Families Act 2014 helped to start adoption reform, which hadn’t happened since Adoption of Children Act 1926. This new piece of legislation sets out that children can be adopted without their parents’ consent if the court believes that the child would be at risk if they were not adopted or if the parents lack the capacity to be able to consent to the adoption, for example, through mental disability.
The new President of the Family Division of the High Court, Andrew McFarlane, has pledged to reform the law relating to adoption during his term. This reform will include considering doing away with non-consensual adoption, meaning that parents will have to agree to the adoption taking place, and looking at the amount of, type and quality of the contact that the birth parents are granted.
So, why the sudden trend in placing children for adoption with extended family members?
It would appear that Local Authorities are interpreting Sir James Munby’s ruling in November 2013, as meaning to place children with birth relatives and obtaining Placement and Adoption Orders for these family members so that there is permanency for the child throughout their lifetime, in turn being assured that their welfare throughout their lifetime will be the paramount concern of the adopters.
Was this the intention of Sir James Munby when he made those comments? Or was his intention for the local authorities to seek more Special Guardianship Orders in favour of family members?
What are Special Guardianship Orders?
Special Guardianship Orders are orders that give extended family members parental responsibility over a child. They do not terminate the parents’ rights. The parents can at any time apply for the Special Guardianship Order to be discharged. When a Special Guardianship Order is in place it also means that the birth parents will have greater contact with the child than if they were adopted outside of the family.
If a child is adopted outside of the family, the most contact the birth parents can hope for is letterbox contact once per year. Letterbox contact is basically one letter per year. However, it has been seen recently in cases of Inter Family Adoption that have gone through the courts that the birth parents can request direct contact visits with the child, the amount of which are determined by the court.
The benefits of Inter Family Adoption are that the child remains within the birth family, albeit the family dynamics are changed with the birth parents becoming the child's extended family members. The psychological effect that this change in dynamic within the family may have on the child is yet to be fully understood.
In cases of both Inter Family Adoption and adoption outside of the family, the child will have what is known as a Life Story Book with details, including photographs, of their birth parents and the story of their life prior to their adoption.
We have recently represented parents in cases where the Local Authority has sought a Placement Order for Inter Family Adoption as opposed to a Care Order or a Special Guardianship Order.
In one case, the child was ultimately adopted by extended family members after the court decided that it was in the best interest for the child, with the parents only being allowed direct contact twice per year. This was a non-consensual adoption on the parents’ part, and whilst they would have preferred to have had their child returned to their care, they understood that this was not going to be an option and therefore made it clear that they would have been happy for the child to be placed with extended family members under a Special Guardianship Order. However, the guardian and the Local Authority did not feel that this was in the child's best interest and relayed this belief to the court.
Conversely, we have also represented parents where the Local Authority and the guardian supported a Special Guardianship Order being made in favour of extended family members with the parents having direct contact with the child twice a year. However, after discussions between the parents, the guardian and the Local Authority, the guardian recommended that the parents should have direct contact with the child four times a year. The court agreed with this recommendation, and the Special Guardianship Order was made in favour of the extended family members with the parents being granted direct contact four times a year.
In both cases, the children had brothers and sisters with whom a relationship was sought to continue by the birth parents. In the first case, the court granted only limited contact between the child and their brothers and sisters, however, in the second case the court granted extensive contact between the child and their brothers and sisters, which was supported by the child's guardian.
With more of these applications for Inter Family Adoptions coming before the court, questions have to be asked as to whether adoption really is now being used as a last resort for children currently in the care system and is in the child's best interest, or whether the same level of permanency could be obtained through the granting of Special Guardianship Orders to the said extended family members?