|ADOPTION .. A Gallop Through History
One of the features of a long career at the public law Family Bar is watching the pendulum swing between – on the one hand an often policy-driven belief in state care and the placement of children in substitute families as a universal panacea to the problems of poverty and disadvantage, and on the other a renewed emphasis on the importance – indeed pre-eminence of the blood tie – with statute and particularly case-law, seeking to address the tension between the 2 extremes.
In that context I remember a number of discussions – some quite heated – with Joanna over the years, latterly in relation to the impact of human rights legislation which was, of course, the subject of her paper to the Adoption Symposium we held in 2012 which has been reproduced in your hand-out – as pertinent today as then.
Something we did agree on was the importance of a working knowledge and understanding of the historical perspective, and it is an outline of that aspect of adoption law that I propose to gallop through before you hear the more erudite and complex thoughts of my fellow speakers.
It often surprises people to learn that adoption did not exist in English law until the Adoption of Children Act 1926 – it is reproduced in its entirety in your handout at pages 26 to 30. Yes, it is 5 pages long! We will come back to its provisions later. Adoption is thus wholly a creature of comparatively recent statute, as unlike Roman law and the Continental systems derived from it, until 1926 the view taken by English law was that a parents’ (especially a father’s) rights over his child were inalienable. Until then, while rare wardship or guardianship proceedings might offer some protection to rich orphans, child adoption was an informal and generally secretive procedure (that is, of course, still a feature) which gave carers and children no rights at all – a biological parent could (and in some cases once children were old enough to work or sell into a brothel or the like) did appear at any time and demand the return of offspring they had not even seen for years – and childhood, let us not forget, extended to 21. Until 1918 informal child adoption was also frequently considered synonymous with so-called “baby farming”, a pejorative term used to encompass a broad range of activities which included respectable foster care, but was generally associated in the Victorian and Edwardian eras with child abuse, and even outright murder by malevolent working-class women.
It was not, however, until after the First World War that adoption became an issue of any significance. The Great War led to public concern following lurid stories of abandoned babies, adulterous wives who had illegitimate children while their brave husbands were away at the Front, fallen women who became pregnant during fleeting affairs with soldiers who were then killed or failed to marry them and war widows who could not afford to look after all their progeny. There were also those who yearned to replace sons lost in the conflict and women, who would now never marry, but wanted a child to care for. Adoption seemed a ready solution to these human dilemmas and there was an explosion of interest in the concept, fuelled by the establishment of adoption societies.
Although neither the then powerful Civil Service nor the Government of the day had any particular enthusiasm for the idea, public pressure from 1918 onwards eventually led to the passing of the 1926 Act. This provided for the transfer of custody rights and duties from birth parents to adopters and set out the conditions – in its 5 pages – which had to be satisfied before an application could be considered. Safeguards were put in place to ensure that parental and particularly maternal consent was both informed and without compulsion ( - and we all know how ineffective all such safeguards were even as late as the 1960’s and early 1970’s - ) It confirmed that, on the making of an adoption order, the child would be treated as if born to the adopters “in lawful wedlock”. It did not, however, for that would have been too revolutionary confer any rights in property on inheritance.
This initial legislation was amended by subsequent Acts, each preceded as was the 1926 Act itself, by at least one Report from the great and the good of the day: Thus the Adoption of Children (Regulation) Act 1939 introduced an element of state regulation into what had hitherto been a process of private arrangement – a transition not completed until 1975. The Adoption Act 1949 followed on from the post-Curtis Report Children Act of the preceding year (which had reformed local authority care of children in need); regulating both the giving of consent to adoption and allowing adopters’ identity to be withheld – (another feature still prevalent today). These Acts were consolidated by the Adoption Act 1950 and further consolidated and expanded by the Adoption Act 1958 which introduced the provision that maternal consent cannot be effective before a child is at least 6 weeks of age and allowed a child to inherit under the terms of a will if the testator died after the adoption order was made. It still did not affect lifetime settlements – again that had to wait the best part of another 20 years.
Between 1958 and 1975 there were a series of further statutes dealing with particular situations which arose as a result of changes in child care law which this gallop does not even give me time to mention. From our perspective the next significant development came with the Houghton Committee review which led to the last being further amended and consolidated in the Children Act 1975 and then the Adoption Act 1976, the last before we come right up to date with the Adoption and Children Act 2002 and the Children and Families Act 2014.
The 1975 and 1976 Acts placed local authorities under a statutory duty to provide an adoption service and introduced the concept of a “freeing order” which allowed the issues of whether a child should, in principle be adopted and parental consent to be resolved without the involvement of proposed adopters and often before they had even been identified. In practice, these provisions were relatively little used – there were no care plans as such for the Court to approve or reject. If, in wardship, for example, the local authority could obtain a Care Order whereby the child was placed “in long-term foster care with a view to adoption” why bother with a potentially problematic application to dispense with parental agreement when once a child had settled in a prospective adoptive home – within an adoption application perhaps a year, two or more later, the Court would have no realistic option but to hold that a parent (who had not been allowed to see his or her child for so long,) was unreasonably withholding agreement. The placement provisions of the 2002 Adoption & Children Act brought with them, at least in theory, a more level playing field between State and parent. The Act also forced local authorities to give proper thought to what the best options for a child might be, as well as timescale and feasibility, enabling social work professionals or in default, the Court to balance care with rehabilitation – a necessary corrective. I would suggest, to provisions we shall examine in a moment which might otherwise have tilted the balance too far against a child’s natural family.
In some ways, leaving aside archaic language, adoption law has changed little, in other ways it has changed a great deal as society itself has changed and professional knowledge developed. Politics, at least with a small ‘p’ has also had an increasing part to play.
These changes can be seen through the statistics. The number of adoptions in England rose from 2,943 in 1927 to a peak of 26,986 in 1968 – over 12,000 of those being babies. 2 factors in particular drove those figures: the stigma of illegitimacy and, from 1951 onwards, the sharp increase in step-parent adoptions following the liberalisation of divorce. Changing social attitudes and the availability of legal abortion on the one hand and the post-Houghton Reforms discouraging step-parent adoptions because of their distorting effect on family relations on the other, led to a sharp fall – so that in the year ending 31st March last year there were 3,980 children adopted from care – only 2% of those were under a year old – the same percentage as those between 10-15: 74% were between 1-4 and 21% between 5-9. It is anticipated that the 26 week limit will increase the number of babies. Incidentally, despite societal changes 90% of adopters were heterosexual couples, 10% single adopters and after all the hoo-ha a few years ago only 6% were same sex couples; albeit the latter figure was up from 4% the previous year. While step-parent adoptions still account for a substantial percentage of the orders made as do adoptions from overseas, the proportions from public care are increasing: under 10% of the all-time high figure in 1968 more recently they represented over a third of the total.
Initially too, as my fellow member of Chambers Andrew Bainham put it in his recent book, the emphasis was “on satisfying adult needs of one kind or another” while the major shift more recently has led to adoption being supposed to be a, “child-centred process”. Thus, for example by s.3(b) of the 1926 Act, the Court was merely required to be satisfied that to sanction adoption would be for the child’s welfare. It was not until the Children Act 1975 (s.3) that welfare was to be given first consideration (but not first and paramount as in other contexts). By the Adoption and Children Act 2002, of course, by sections 1(i) and 1(ii) whenever a court or an adoption agency comes to a decision relating to adoption, the paramount consideration must be the child’s welfare throughout his or her life.
Similarly, one can compare the provisions for dispensing with parental consent between 1926 and now – reproduced in your handouts. If one looks at section 2(iii) of the 1926 Act when consensual adoption was the norm, parental culpability of some kind was the focus – the parent had to have disappeared or have persistently neglected or refused to contribute to the support of his or her child before the Court could dispense with consent. The catch-all discretionary “or is a person whose consent ought in the opinion of the court and in all the circumstances of the case be dispensed with” was intended to cover other evil-doing and was rarely, if ever, used. The only other reason consent could be dispensed with was incapacity.
The same focus can be seen in the tighter section 5(i) and (ii) of the 1958 Act at a time when the overwhelming majority of adoptions concerned the illegitimate babies of young mothers who – I put it in inverted commas – “consented” to their child being adopted, and step-parent adoptions. The Court could dispense with consent if it was satisfied that the parent
(a) had abandoned, neglected or persistently ill-treated the infant; or
(b) could not be found or was incapable of giving consent or withholding consent unreasonably – or
(c) had persistently failed without reasonable cause to discharge the parental duties in relation to the child (- I am here to tell you from personal experience how difficult proving this ground could be -)
(d) had abandoned or neglected the child or
(e) had persistently ill-treated the child or
(f) had seriously ill-treated the child and because of that ill-treatment or otherwise, rehabilitation of the child within the household of the parent was unlikely.
The latter changes reflected the growing recognition of, in particular, physical abuse after a number of children died at the hands of a family member shocking the nation. Increasingly, however, the often more difficult grounds which highlighted parental culpability fell from favour as applications made and granted alleging unreasonable withholding grew.
And then, of course, as we all know the Adoption and Children Act 2002 brought adoption law largely into line with the provisions of the Childrens Act 1989 by stipulating that in any decision relating to the adoption of a child, the paramount consideration must be the child’s welfare throughout his or her life. That paramouncy principle is to be applied in relation to all decisions, including dispensing with a parents’ consent – the sole grounds now, by section 52 are, in a nod to past legislation “the parent or guardian cannot be found or lacks capacity (and for the avoidance of doubt that is within the meaning of the Mental Capacity Act)
or the welfare of the child requires the consent to be dispensed with.
Well, have B-S et al changed the law? I do not think so. Over and over since 1926 and particularly in more recent times in the face of policy and legislation seeking to make adoption easier, the Court has rightly sought to remind us that permanently and irrevocably to sever the relationship between unwilling parent or child and/or child and family is the most draconian step the State can take and one which should only be taken when “nothing else will do” – we need to remember too that so draconian step is it, that this country is one of the very few in the world that even allows it.
BARBARA IRENA SLOMNICKA
5th June 2014