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Changing the nature of adoption: law reform in England and New Zealand

Published online by Cambridge University Press:  02 January 2018

Caroline Bridge
Caroline Bridge*
Affiliation:
University of Manchester
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Extract

In both England and Wales and New Zealand adoption law is under review. A series of discussion papers followed by a Report to Ministers has been published in this country, while New Zealand has published an interim proposal for amendment ofexisting legislation prior to a later full review The time is right therefore, to consider and compare the basis upon which adoption law reform is proceeding. The opportunity to question the nature of adoption as a legal construct and examine the particular patterns offamily morality that it promotes is timely. Equally, it is timely to re-assess the philosophical underpinning of the Adoption Act 1976 in light of the particular ideology imported into family law in England and Wales by the Children Act 1989. The Act stresses the durability of parenthood and establishes the concept of parental responsibility which survives both divorce and a child care order. While containing points of confluence with adoption law, the new ideology nonetheless clashes with the existing concept of adoption in certain fundamental ways.

Type
Research Article
Information
Legal Studies , Volume 13 , Issue 1 , March 1993 , pp. 81 - 102
Copyright
Copyright © Society of Legal Scholars 1993

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References

1. In England and Wales the Interdepartmental Working Group on Adoption law Reform has published four discussion papers: (1) ‘The Nature and Effect of Adoption’ 1990, (2) ‘Agreement and Freeing’ 1991, (3) ‘The Adoption Process’ 1991, (4) 'Intercountry Adoption 1992.

2. Review of Adoption Law, ‘Report to Ministers of an Interdepartmental Working Group’ (1992) Department of Health and Welsh Office.

3. New Zealand Adoption Practices Review Committee ‘Report to the Minister of Social Welfare’ 1990.

4. Re Application Ly Nana [1992] NZFLR 37, 41 per Judge Pethig).

5. Adoption Act 1955, s 16(2)(a).

6. Adoption Amendment Acts 1957, 1962, 1965; Status of Children Act 1969, Sch 1.

7. Adoption Act 1955, s II(b).

8. See Ullrich ‘The Politics of Adoption’ (1979) 8 NZULR 235. See also Heneghan ‘Legally Rearranging Families’ in Family Law Policy in New Zealand (ed Atkin & Heneghan, 1992, Oxford University Press, Auckland) and Else A Question of Adoption (Bridget Williams Books, New Zealand, 1991).

9. Adoption Act 1976s 39(l)(a).

10. See the Interdepartmental Review of Adoption Law, Discussion Paper Number 4, ‘Intercountry Adoption 1992’.

11. See Lowe et a1‘The Pathways to Adoption: Summary of Research Findings’ [1992] Fam Law 52. This Bristol University Study found that 48% of adoption applications were made in respect of children up to the age of five.

12. In 1975, 4,548 babies were adopted compared with 1,115 in 1989, OPCS, Marriage and Divorce Statistics 1989 (1990), Table 6.2.

13. The Bristol Study, op cit, n11, found that 34% of all cases in its overall sample were step-parent applications. In New Zealand 30% of all adoptions were by step-parents.

14. The Children Act 1975 incorporated most of the recommendations of the Houghton Committee's Report, ‘Report of the Departmental Committee on the Adoption Of Children’ (1972) Cmnd 5107, HMSO, and is consolidated in the Adoption Act 1976.

15. Bainham A, ‘The Children Act 1989: The State and the Family’ [1990] Fam Law 2312, 234.

16. Joseph Jackson Memorial Lecture (1989) 139 NLJ 505, at 508.

17. Children Act 1989, s l(5).

18. Bainham A, ‘The Privatisation of the Public Interest in Children’, (1990) 53 MLK 206.

19. Recommendation 10 ‘Report to Ministers’ [1992] op cit n 2 at 4 states that the non-intervention principle should apply to adoption orders in a reformed law.

20. Children, Young Persons and their Families Act 1989, s 20.

21. The whanau consists of all the child's relatives who are bound together by blood ties, familiarity, loyalty and shared experience and are used to working together as a group.

22. Children, Young Persons, and their Families Act 1989 s 31(2).

23. Op cit n 3 at 7.

24. The only exceptions to the general rule of total legal transplant are those relating to prohibited degrees of marriage, and nationality. Children with British citizenship do not lose it if adopted by a foreign national.

25. Goldstein, Freud & Solnit Beyond the Best Interests of the Child London, Collier Mac-Millan, 1973). See also Bridge et al‘Open Adoption: A Multi-disciplinary View’ (1987) 1 Family Law Bulletin 135.

26. McRoy (1988) in Thoburn ‘Review of Research Relating to Adoption’ (1990) Department of Health, found that an open atmosphere with contact between both sets of parents worked well where there was limited contact between the infant and the birth parents.

27. Lowe et a1 op cit n 11.76% of children in the study's sample of study's sample of freeing cases had been involved in care proceedings often following places of safety orders.

28. Butterworth Family Law Guide (Butterworths, Wellington, 1987) pp 422–425.

29. Triseliotis Adoption & Fostering (1985) 9, 19.

30. Bridge ‘Access Conditions in Adoption Orders’ (1990) 3JCL 13, 14.

31. See Masson, Norbury and Chatterton Mine, Yours or Ours? a study of step-parent adoptions (1983) HMSO which categorises step-parent adoptions as ‘illegitimate’, ‘post-divorce’ and ‘post-death’.

32. Re D (minors) (adoption by step-parent) (1980) 2 FLR 102.

33. Ibid.

34. Ibid.

35. That the child is cut off from the natural parent and his wider family; that this may be against his wishes; that the consequences of divorce should not be masked and that the whole legal effect of adoption may be damaging to the child.

36. Introduced s 14(3) into the Adoption Act 1976, providing that the court dismiss an adoption application by a parent and step-parent if the matter would be better dealt with by a joint custody order.

37. Op cit n 2 at 3 and 3W.

38. Section 10(5)(a) and s 12(2).

39. The requirement to make financial provision is contained in the Matrimonial Causes Act 1973 and the child's application with respect to the estate stems from the Inheritance Act 1975.

40. Hoggett and Pearl The Family, Law and Society: Cases and Materials (Butterworths, London, 1991).

41. Op cit. n 2 at 38.

42. Ibid at 3.

43. Hill & Triseliotis (1989) cited in Thorburn Review of Research Relating to Adoption op cit n 25 at 39.

44. Guardianship Act 1968 ss 8 and 10. See Ullrich ‘The Politics of Adoption’ (1979) 8 NZULR, 235; and the ‘New Zealand Adoption Practices Review’op cit n 3 at 59–64.

45. Guardianship Act 1968.

46. Ibid s 6.

47. New Zealand Adoption Practices Review Committee op cit n 3 at 7.

48. See Bridge ‘Changing the Nature and Effect of Adoption’ (1991) 3 JCL 37, 39.

49. The Iwi was a political and cultural entity designed to care for its descendants. Within the Iwi existed the Hapu or tribe and the smaller Whanau or extended family.

50. Op cit n3 at 50.

51. Ibid at 53.

52. Review of Adoption Law op cit n 2 at 9. See also Fratter Family Placement and Access (Barnadoes, London, 1989); Triseliotis, Adoption with Contact, Adoption and Fostering, (1985) 9, 4 CrossRefGoogle Scholar; Openness in Adoption (1991) Adoption and Fostering 15, 4, 81–115.

53. Ibid, Recommendation 26 at 5. Further recommendations are concerned with a legislative framework which underlies the adopted child's right to know (R25) and a duty on agencies to give birth parents a chance to participate in decisions about the child's future (R27).

54. Ibid, Recommendation 1 at 3.

55. The New Zealand Report op cit n 3, at 40 recommends that open adoption must be flexible enough to meet a variety of'emotions and needs … and so there should be no one model of open adoption which will suit everybody'.

56. Thorburn op cit n 25 at 93.

57. See Child Welfare (1984) 63, 245.

58. The Nature and Effect of Adoption (1990) op cit n 1 at 59. Op cit n 3 at 7.

60. Ibid at 42 for discussion of the ‘open’ adoption ‘plan’.

61. Family Proceedings Act 1980, Part 2.

64. Ibid at 44.

63. In any decision relating to adoption ‘first consideration [must be] given to the need to safeguard and promote the welfare of the child throughout his childhood’.

64. Re B (MF) (an infant) [1972] I All ER 898.

65. See Re J (a minor) (adoption order conditions) [1973] 2 All ER 410; Re S (adoption order: access) [1975] I All ER 109; Re C (a minor) (adoption: conditions) [1989] AC 1.

66. Re C (wardship and adoption) (1981) 2 FLR 177.

67. Re M (a minor) (adoption order: access) [1986] 1 FLR 51.

68. Re C op cit n 65.

69. Op cit n 2 at 12.

70. The Adoption Contact Register was introduced as s 51A of the Adoption Act 1976 by the Children Act 1989, Sch 10, para 21.

71. Children Act 1989 s 2(6).

72. Ibid, s 33(3).

73. Ibid, s 34(1) extends contact to parents; a guardian; and any person who, before the care order was made, had care of the child by means of a residence order or wardship.

74. Ibid, s 34(4) and (6).

75. Re F [1982] 1 WLR 102.

76. Re M (1985) FLR 921; see also inter-departmental Review of Adoption Law ‘Agreement and Freeing’ (1991) Department of Health, p 46.

77. Op cit n 1 at 3 (R6).

78. The child's welfare was advanced by both Re W (an infant) [1971] AC 682, when the House of Lords held the child's welfare to be of great, but not paramount, importance and the current s 6 Adoption Act 1976, which was inserted by the Children Act 1975, following a recommendation of the Houghton Committee.

79. There are six grounds for dispensing with parental consent in the Adoption Act 1976, s 16(2). Para (b) that a parent ‘is withholding his agreement unreasonably’ is the most commonly used ground.

80. The leading case is Re W (an infant) [1971] AC 682, HL.

81. See Re H; Re W (adoption: parental agreement) (1983) 4 FLR 614 where it was made clear that a parent could reasonably withhold agreement even though the professionals regarded adoption as in the child's interests.

82. Op cit. n 2 at 3 (Recommendation 6).

83. Adoption Act 1955 s 8, the parent must have either: abandoned, neglected, persistently failed to maintain the child, persistently ill-treated the child, or failed to exercise the normal duty and care of parenthood.

84. Butterworths Family Law Guide op cit. n 69, p 438.

85. See L v B (1982) 1 NZFLR 232.

86. Adoption Act 1955s 11(b) (NZ).

87. Guardianship Act 1968s 23(1).

88. Children, Young Persons and their Families Act 1989, s 6.

89. Children, Young Persons and Their Families Act 1989, s 4(a).

90. Ibid s 5(1). Other s 5 principles look to strengthening the family; considering the affect of the child on the family; the child's own wishes; obtaining the support of the family; and implementing decisions within an appropriate time-frame.

91. Op cit n 3 at 44.

92. The Department of Social Welfare submission to the Review stresses, however, that all children, whether ex-nuptial or in care, have families already. Consequently they should not be removed from those families.

93. See the Adoption Contact Register, s 51A Adoption Act 1976 and in New Zealand, the Adult Adoption Information Act 1985.

94. Atkin ‘New Zealand: Families, Children and Ethnicity’ (1991) 32 Journal of Family Law, University of Louisville School of Law, 357, 362.