ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 20. Step-Parent Adoption
(a) Processes for step-parent adoption
Many professionals are unhappy about step-parent adoption. Such adoptions can be used as a means of excluding completely the other absent birth parent from a child's life, whatever the child's age and relationship with her/him. Given that contact is increasing in agency adoptions, where the child is not being returned to the birth family, such a cutting-out of contact and other ties in step-parent adoptions may be completely inappropriate. The absolute prohibition on the use of s.11 of the 1995 Act by a parent whose responsibilities have been removed by adoption applies equally to all adoptions, including step-parent ones. This provision was criticised by the court in West Lothian Council v M & Ors 2002 S.L.T. 1155, see above pg. 19.
On the other hand, it is important for children that adults closely involved in their care can obtain the responsibilities and rights needed in day to day life. It is helpful to all, children, adults and outside agencies like schools, to be clear about who can do what.
Ensuring that a step-parent has a legal relationship with a child can be crucial, especially if the other absent birth parent has died or has no role in the child's life. Step-parent adoption is an option, but families should consider other ones as well.
Consideration of step-parent adoption would be useful, including whether there should be specified processes and procedures for them, as a distinct type of adoption. In looking at step-parent adoption, it may be helpful to review all the options that are and should be available for step-families, including unmarried ones.
(b) Who can adopt in step-parent adoption?
At present, only married couples can adopt together, and a step-parent can only adopt the children of his or her partner if the couple are married. If an unmarried step-parent adopted a step-child, the effect would be to wipe out the rights of all birth parents, including the adopter's partner. Whether unmarried couples can adopt together is considered under in Chapter 17, 'Adopters and Processes for Them' pg. 95. In discussion about the issue, consideration needs to be given as to whether any future provisions allowing unmarried couples to adopt should also permit an unmarried step-parent to adopt. It could be argued that it would be inequitable to allow an unmarried couple to adopt jointly in an agency adoption, but not to permit an unmarried step-parent to adopt his or her step-child. The 2002 Act permits both types of adoption. On the other hand, step-parent adopters are not subject to the assessment process that all agency adopters undergo. One possibility is that any unmarried adoption, whether step-parent or not, is only possible if the couple have lived together for a specified period of time.
(c) Raising awareness of residence orders.
Residence orders under s.11 of the 1995 Act give parental responsibilities and rights to the applicant without normally removing all of them from an absent birth parent. It is a method which allows a step-parent to gain responsibilities and rights without the complete legal break of adoption. Applications under s. 11 can be made whether the step-parent is married to the birth parent or not.
(d) Step-parent agreements/court orders
The Scottish Office consulted on this issue in its Consultation Paper Improving Scottish Family Law in March 1999, and the Scottish Executive issued a consultative White Paper in September 2000, Parents and Children, which also dealt with it. So far, there have been no further developments in Scotland, but the 2002 Act introduces agreements and court orders allowing step-parents to acquire parental responsibility, in s.112 which inserts the provision as s.4A of the 1989 Act. This will apply in England and Wales and is expected to come into force in 2004. The new s.4A provides that the step-parent:
- must be married to a birth parent who has parental responsibility; and
- can acquire responsibility by agreement with the spouse and the other birth parent if s/he has parental responsibility; or
- can acquire responsibility by a court order.
Such agreements and orders can only be brought to an end by a court order, on the application of the child or any person with responsibility. There is no restriction on the use of agreements or orders only to where both birth parents have responsibility.
This is a complex matter, as can be seen from the White Paper Parents and Children and the responses to it. These and an analysis of them are available on the Family Law pages of the Scottish Executive website. A number of issues arise:
- should any scheme be restricted to married step-parents?
- should any scheme be available only by agreement, or should the courts be able to make a step-parent order on the model in the 2002 Act, as distinct from their existing powers under s.11 of the 1995 Act?
- should agreements/orders only be available when the birth parent who is the step-parent's spouse/partner shares responsibilities with the other birth parent?
- should agreements/orders be available when the 'other birth parent' is dead, whether s/he had responsibilities or not?
- should agreements/orders be available when the 'other birth parent' does not have responsibilities?
- if so, should her/his consent be sought in all cases, or only if s/he has 'significant involvement' in the child's life and has not previously lost responsibilities?
- what mechanisms should be used to obtain the views of the child? Should formal consent be required by any child of twelve or over, as is the case in adoption?
This subject could be seen as a family law and private law matter. However, the issue is raised here as it relates to adoption law, and is one on which respondents to this Paper may wish to express a view, particularly in the light of the provisions in the 2002 Act.
QUESTIONS:
71. Should there be specific processes for step-parent adoptions?
72. Should an unmarried step-parent be able to adopt?
73. If so, should there be limits on which step-parents can adopt, such as the length of relationship?
74. What are views on step-parent agreements/orders and particularly the provisions in s.112 of the 2002 Act?