Adoption law in England and Wales is out of date and not well-designed to meet the needs of the children who are now likely to be adopted, or their families. It is governed by the Adoption Act 1976, but much of this legislation in fact dates from 1958 - when adoption was chiefly concerned with the placement of babies born to single mothers.
Reforms enacted in 1975, and introduced piecemeal until 1988, acknowledged that some older, "hard-to-place" children were being adopted. Importantly, local authorities were given the power to pay adoption allowances in cases where children with special needs placed additional financial strains on their adoptive families.
Grounds for dispensing with parental agreement to adoption were expanded in an attempt to address the problem of children "languishing" in care. The concept of "freeing for adoption" was introduced, and was brought into force in 1984. This enabled the court to end the birth parents' rights over the child and to transfer these to the adoption agency.
The purpose of this was twofold. First, it aimed to stop the suffering of parents, who wished to relinquish infants for adoption, during delays before the adoption was finalised; and to avoid causing distress to the child and prospective adopters where parents withdrew from their agreement at the last moment. Second, where parents opposed adoption, a freeing application could be used to ask the court, in advance of a decision to place the child with adopters, whether it was appropriate to overrule the parents' opposition.
The legislation included only a very limited provision for revoking freeing orders if the child was not actually adopted. Unfortunately, a number of children - freed for adoption, but never adopted - now have as their legal parent only the local authority.
The 1975 reforms also attempted to reverse the increase in step-parent adoptions. But, despite an initial reduction, these have continued to represent more than half the adoption orders made. In the event, the specific requirement for the court to prefer a "joint custody" or "custodianship" order to adoption in such cases was removed by the Children Act 1989.
The Children Act was enacted following a thorough review of childcare law - called for by the House of Commons select committee on children in care in relation to concerns raised by the Cleveland inquiry, which occurred after Cleveland council took more than 100 children into care in 1987 on the grounds of suspected sexual abuse. But the opportunity to review adoption law was not taken at the same time, and an interdepartmental review of adoption law was only established as the Children Act was completing its passage through parliament. Despite a number of relatively minor amendments to the Adoption Act 1976, which are contained in the Children Act, adoption law has not kept up with children's legislation.
The Children Act requires a court to treat the welfare of any child under its consideration as the "paramount consideration". It sets out a useful checklist of factors to be considered in disputed applications, or those involving the local authority. It requires courts to act on the assumption that delay is likely to be harmful to the child's welfare. It explicitly requires local authorities to ascertain and take into consideration the views of children, their parents - including fathers who may not have "parental responsibility" - and other people important to the child. Under the Act, local authorities are required to have regard for the child's needs arising from his or her religious persuasion, racial origin and cultural and linguistic background, and to try and keep siblings together wherever possible.
All these, as well as a proper means of ensuring that children's views are always made known to the court, are matters that need to be incorporated in a new adoption bill. In addition, the following points need to be addressed.
Cohabiting couples should be allowed to apply jointly for an adoption order. This would recognise the reality of the situation where a child is placed with two people living together, but not married to each other, who intend to share the parenting role. It would also increase the number of potential adopters.
There needs to be change in the grounds for dispensing with parental agreement to adoption. This question was thoroughly addressed by the adoption law review. It is hard to better the recommendation, contained in the review's report to ministers, that a parent's consent to adoption should be dispensed with only if the court is satisfied that the advantages of adoption would be so significantly greater for the child than any alternative option as to justify overriding the wishes of the parents.
"Freeing for adoption" should be replaced by a provision that enables the issue of parental consent to be addressed prior to the child's placement for adoption - without ending the child's relationship with his or her birth parents until new, adoptive, parents are able to take their place. Placement orders, as outlined in the March 1996 draft adoption bill, could provide an appropriate framework, with some amendments.
Local authorities should be given a much stronger and clearer statutory obligation to provide post-adoption support for all those affected by the adoption, including greatly improved and more consistently applied adoption allowances.
We need to see an adjustment in the definition of the legal status conferred by adoption. While it should remain the case that adoptive parents acquire full parental status from the date of the adoption, the legal fiction that the child was never the child of his or her birth parents should be removed.
A new order should be introduced to confer guardianship on those caring permanently for a child, without severing all legal relationship with the birth parents. This would be useful in cases where the child is cared for by relatives and in instances where the child is to have a permanent home with current foster carers, but does not wish to lose his or her legal family relationships.
A similar form of guardianship may be appropriate for some stepfamilies. In those cases where adoption is still thought to be appropriate, the law should be amended to enable the step-parent to be the sole applicant for an adoption order - so that the child's parent is not required to assume the artificial status of adoptive parent.