Adoption and Fostering

What are adoption and fostering?

Adoption is the term given for the permanent transfer of legal rights in relation to the parental responsibility of a child.

Foster care describes the temporary acquisition of guardianship rights in relation to a child. Foster care is often used when a child is waiting to be adopted or the courts are considering an adoption order.

As a legal condition, adoption is regulated by statutory provisions and administered through the courts in line with these principles. As a procedural matter, adoption is solely administered through adoption services and agencies approved by the secretary of state. Therefore, private adoption is prohibited in the UK.

A court may grant an adoption order for a variety of reasons, such as the failure of the biological parents to fulfil their parental responsibility, but at all times the interests of the child are the paramount consideration, in line with the provisions of the Children Act 1989. The complex interaction of conflicting rights and interests in adoption proceedings can make the law in this area intricate and unpredictable.

It should be emphasised that in the first instance parental consent for the process of adoption is always sought.

Adoption proceedings are complex, emotive and at times lengthy procedures conducted in closed court and with a variety of institutional representatives.


Background

Adoption was first introduced into the UK under the terms of the Adoption of Children Act 1926.

In the early days of adoption, the focus was on providing relief for unmarried mothers and to satisfy the needs of those couples unable to conceive themselves. Since this time however, the focus of the law has shifted to the interests and welfare of the adopted child.

The Adoption Act 1976 is the main piece of legislation regulating the adoption process in the UK.

The government carried out a review of adoption policy and process in 2000 and detailed the findings in a white paper titled Adoption: A New Approach. The paper advocated reforming the existing system with a raft of new measures to make the adoption procedure more transparent and to harmonise the adoption legislation with the Children Act 1989.

The Adoption and Children Act 2002 was the legislative outcome, with full implementation occurring in 2004.

There are a number of other pieces of legislation and government guidelines that also apply to the adoption procedure. Given the nature of adoption, human rights legislation such as the Human Rights Act 1998 (which incorporates the European Convention on Human Rights 1950) and the Convention on the Rights of the Child 1989 are important to any adoption proceedings.

The provisions of the Hague Convention on protection of children and cooperation in respect of intercountry adoption 1993 applies in intercountry adoption applications.


Controversies

There are a number of controversial issues surrounding the adoption process, such as the rights of the child to access information on their past, and the issue of parents' rights in adoption proceedings. Recently these have been joined by the issue of overseas and Internet adoption.

The issue of internet and overseas adoption was propelled into the public sphere following the widely publicised case of the attempts by the Welsh couple, Alan and Judith Kilshaw, to adopt twins from America over the Internet. The case sparked a public debate on the morality of adoption when it interacts with commercial interests. Legislation followed shortly afterwards to try to close legal loopholes exposed by the Kilshaw case.

The way that local authority social services departments handle interracial adoptions has also been controversial. Some people have alleged that young people have had to remain in care because 'political correctness' has prevented children from minority ethnic backgrounds from being adopted by white families.

In 2003, Lord Laming published a report into the death of eight-year old Victoria Climbie, who had been fostered by a distant relative in a private arrangement with her parents. Victoria was abused and later murdered by her foster carer and their partner. The Laming report recommended a review of the law relating to private fostering arrangements and for an approval system and register of private foster carers to be introduced.

The Children Act 2004 included measures that require private foster carers to register their arrangements with local authorities.

Provisions in the 2006 Equality Act banned discrimination in the provision of services on the basis of sexual orientation, and this quickly became a problem for the Catholic adoption agencies who handle a substantial proportion of the adoptions carried out in the UK.

Following intense public debate and what many opponents described as a rushed passage through parliament, regulations prohibiting discrimination were passed in the Commons with a majority of 210.

This meant Catholic adoption agencies had to allow homosexual couples to adopt children in their care, although many agencies have claimed they will shut down before they submit to the legislation. They have been given a 21 month transition period from April 2007 to implement the changes.


Recent developments

Adoption has stayed in the news thanks to celebrities in recent months, with first Madonna and then Angelina Jolie running into difficulties in their attempts to adopt African children.

More seriously the government's sexual discrimination regulations, approved by the Commons in March, attracted attention by not giving Catholic adoption agencies an opt-out in gay adoption cases.

The government refused to back down from demands by the Church that it had a right to prevent children being placed with homosexual couples. Faith groups have 21 months from March 2007 before the regulations come into force.


Statistics

The number of applications for adoption made in 1980 were 9,672, and 3,360 in 2002. The number granted were 8,026 in 1980 and 3,277 in 2002

58,000 children were looked after at any one time by councils in England in 2000 and 18 per cent of those children experienced three or more foster placements a year

70 per cent of children left care without any qualifications

Statistics: (Sources: Department of Health/Office for National statistics, 'Adoption: a new approach', 2000)


Quotes

"When children cannot live with their birth parents, for whatever reason, we all share a responsibility to make sure that they have a chance of a fresh start, and an opportunity to enjoy the kind of loving family life which most of us take for granted."

Prime minister Tony Blair, foreword to Adoption white paper, 2000

"To find families for children and not children for families."

Andrew Bainham, 'Children: The Modern Law', 1998