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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Stakeholder Issues
Chapter 13. Birth Families in Adoption, including Unmarried Fathers
Many of the other Chapters cover issues for birth families, and this one relates to those not dealt with elsewhere. For example, for contact issues, see Chapter 2. Contact; for court matters, see Chapter 6. Court Processes in Adoption; for post-adoption support for birth families, see Chapter 10. Support in Adoption Placements, and Chapter 11. Tracing and Access to Adoption Records; and for birth parents' rights to attend adoption panels, see Chapter 15. Panels: Fostering, Adoption and Permanence.
(a)Fathers without responsibilities and their position in adoption and freeing.
There is an overlap between this and the following two headings, and they need to be considered together. This heading looks at some issues for birth fathers, but the position of fathers without responsibilities in relinquishing adoptions is dealt with below, under heading (c).
In England and Wales, s. 111 of the 2002 Act, expected to be implemented in 2004, will give full responsibility to unmarried fathers who appear on children's birth certificates, by amending s.4 of the 1989 Act. There was little controversy about this provision in the debates in Westminster. The Scottish Office consulted on this, among other matters, in March 1999, Improving Scottish Family Law and the Scottish Executive issued a consultative white paper in September 2000, Parents and Children, which also looked at the issue. There have been no further proposals to date.
This Paper is written on the basis that the law in Scotland may change in the future, and that the law in England and Wales will change in 2004. Whatever happens, however, there will always be issues for unmarried father in permanence cases, as any change will not be retrospective; and there will always be fathers without parental responsibilities and rights whose situations will vary from case to case.
The current law in Scotland is that an unmarried father does not have responsibilities and rights unless:
- he has completed an agreement with the mother under s. 4 of the 1995 Act;
- he has a court order under s. 11 of the 1995 Act;
- he has been named guardian of the child in the will of someone who has responsibilities and rights (e.g. the mother) and that person has died.
In all legal and practice matters, when an unmarried father has such responsibilities and rights (which could simply be a contact order under s.11), he has to be treated in the same way as the mother throughout the adoption process. His agreement to adoption or freeing has either to be given or dispensed with before an order can be made.
In adoption practice matters, an unmarried father without responsibilities and rights should be and usually is treated in the same way as those with responsibilities, when he has involvement in the child's life, particularly if it is a 'significant' one.
In adoption legal matters, an unmarried father who has not got responsibilities and rights cannot be treated exactly the same as a father who has, because he does not have the right to agree or not, and the court does not need his consent. However, he should not be completely disregarded, as there are various rules applying to him:
- The 1996 Regs allow an agency to give an unmarried father without responsibilities and rights the same notification and information about its decision that it has to give to parents with responsibilities and rights, if it knows his identity, and it thinks it should do so and that is compatible with the child's welfare - reg.14(2) of the 1996 Regs.
- In a freeing application, the court rules say that the hearing diet must be intimated 'to any person whose whereabouts are known [to the local authority] and who claims to be the father of the child' but does not have responsibilities and rights - RCS 1994, r.67.13(3)(aa); AS 1997, r.2.11(2)(b).
- In a freeing application, the court must be satisfied that any unmarried father without responsibilities has no intention of either applying for an order under s.11 of the 1995 Act or entering into an agreement under s.4 of the 1995 Act; or if he does have such intentions, that he is likely to be refused an order, or be unable to enter into an agreement - s.18(7) of the 1978 Act.
- In A v G (unreported, Second Division, 12 April 1994) the appeal court held that the unmarried father without responsibilities and rights had no right to consent or not to the adoption; but that he remained 'someone who is entitled to be heard, and….to make representations or lead evidence relevant to the welfare of the child'.
These provisions are confusing:
- The provisions in the 1996 Regs, while suggesting what is good social work practice, are not uniformly followed, and discretion is allowed either way.
- The right to be notified of the freeing hearing is not extended into adoption cases, although a sheriff in adoption has the right to intimate the hearing date to anyone whom he or she feels it appropriate to notify (AS 1997, r.2.28(4)(d)). But such discretion is not provided in the sheriff court rules for freeing hearings.
- However, in RCS 1994, the Court of Session has discretion to intimate the hearing in adoption and freeing to anyone it feels should be advised, as well as obliging intimation to an unmarried father in all freeing applications.
- Section 18(7) says that the court must consider a father without responsibilities, but its terms do not provide any procedures for the court if it decides that he has intentions and/or might succeed.
- The decision in A v G above is not widely known, and therefore often overlooked.
In addition, there is the First Division case of F v F 1991 S.L.T. 357, also reported as AB and CD Petitioners 1992 S.C.L.R. 274. This held that there should be a hearing of evidence in a custody application by grandparents in the same court as was dealing with the post-freeing adoption application for the children. Although this case was about grandparents without rights, and not a father, and it dealt with pre-1995 Act legislation, it should equally apply to a father who has raised an application, at whatever stage. Bringing evidential hearings together in such circumstances has clear advantages. Delay is reduced, the possibility of conflicting judgements is avoided and fathers can be heard. Like A v G above, this case is often overlooked.
In the reg.7(3) of the Adoption Agencies Regulations 1983, for England and Wales, agencies are obliged, where the father does not have responsibility, it knows his identity and it considers it reasonably practicable and in the interests of the child, to give him the same sort of service and information that it must give someone with responsibility. This is involvement at the planning stage, far earlier than any regulatory duty in the 1996 (Scottish) Regs.
Clarification of rights for fathers without parental responsibilities would benefit everyone involved, including the fathers themselves. The introduction of the E.C.H.R. reinforces the need to have a clearer structure, particularly for fathers who have no responsibilities but have involvement in children's lives.
(b) Other birth relatives and their rights to be involved in the adoption process
Some of the issues for fathers without parental responsibilities and rights also occur in relation to other birth relatives, including grandparents, older siblings, uncles and aunts etc. If any relatives or other persons have responsibilities and rights, they are treated accordingly in the adoption process, and their position is clear. However, most birth relatives do not have such responsibilities and rights, but may have involvement in the child's life and/or an interest in and knowledge of the plans for a child.
In good practice terms, when plans are being made for a child to live away from home on a permanent basis, consideration should be given to involving relatives. There needs to be assessment of the abilities of the family member or members who care or could care for the child. This should be done, in good practice, if there is knowledge of the family members, and if he/she/they are realistically possible carers.
However, difficulties occur when:
- the local authority/agency have little or no knowledge about relatives, and are not able easily to do an assessment;
- relatives are unaware of the plans for the child;
- relatives change their mind about being willing to care for the child;
- relatives appear very late in the planning process with an offer;
- relatives have been considered and assessed as not suitable but still wish either to care for the child or at least to maintain contact.
Informal arrangements can be made for birth family members who have, for example, some form of contact, even when they are not going to care for the child, but this is not always possible. Also, such arrangements may not be the best thing for individual children, but are still sought by the birth relatives who want to have involvement nonetheless.
Consideration needs to be given as to whether the permanence and adoption processes should be made sufficiently open to allow birth relatives more involvement and/or a formal right to have some participation in:
- planning for the child being with them or another carer;
- the court processes for freeing and adoption.
The case of McCreight v City of Edinburgh Council and Another 2003 FamL.R. 2 shows what can happen when a birth family member has difficulty accessing legal processes. A grandmother sought contact but her application under s.11 of the 1995 Act was sisted (temporarily suspended) on the basis that the matter could be considered in the forthcoming freeing proof. This did not go ahead because the birth mother died. The children were adopted and the grandmother sought to obtain the names and addresses of the adopters so that she could carry on with her application. The court allowed the names to be disclosed, care of the agencies, and the case was appealed.
Consideration of children's rights to respect for their family life, and the similar rights of birth relatives, under Article 8 of E.C.H.R., mean that these issues must be looked at. It would be helpful to have clarification on these questions, to help both birth families and local authorities/agencies who are trying to make the best plans for children.
(c)C ontacting family members in 'relinquishing' adoptions
Where mothers, or indeed both parents, wish to relinquish their children (usually babies) for adoption, and do not wish the father and/or the extended families to know or be contacted, difficult legal and practice issues arise. There are questions about what steps local authorities/agencies must or may take to include and contact the wider families. There are no statutory provisions in the 1978 or 1995 Acts addressing this directly. In the 1995 Act, there is an expectation that work with and for children will be done in the context of their families, but this has never been examined judicially in Scotland. It cannot, therefore, be said that the courts expect agencies to trace and check out all family members even against the wishes of the birth parents.
That is in contrast to the provision in England and Wales in s.23(6) of the 1989 Act, which instructs local authorities to make arrangements for 'looked after' children to live with people with parental responsibility or 'a relative, or friend or other person connected' with the children. In addition, courts in England and Wales can be asked by authorities/agencies to give advice about who they should contact. The courts also have to take into account the duties of adoption agencies under reg.7(3) of the Adoption Agencies Regulations 1983, to notify fathers without responsibility about plans for adoption: see heading (a) above.
Case law indicates that steps must be taken to involve, say, an unmarried father, in the care of a relinquishing child, or at least assess him for such care, particularly where he knows about the child and has had some involvement with the birth mother and other older siblings. However, the case law is not totally consistent or clear, and each case depends on its own circumstances. The cases make it clear that this was an area of debate before implementation of the E.C.H.R., and that the Convention is simply adding another consideration.
There is a need to consider what duties should be placed on adoption agencies when relinquishing mothers, or couples, say that they do not wish their wider family contacted. Are there circumstances where this should be overruled? The parents have a right to respect for their private and family life under E.C.H.R., and also general rights to confidentiality, having consulted the agency/ local authority. Is it of benefit to the young child to go against clear parental wishes in this area, particularly if the parents provide background information for the child to use when older, in tracing the wider family? In a recent decision, the European Court of Human Rights held, by a majority of ten to seven, that a French law which allows a birth mother to abandon legally her children at birth and request that the birth be kept secret, did not violate the child's Article 8 rights to respect for family life: Odievre v France, 13 February 2003.
The issue raises consideration of fairness and E.C.H.R. rights, for all parties including fathers without responsibilities, and also overlaps with matters raised under the two previous headings. Again, some clarification of what is expected of local authorities/agencies would be helpful for them in carrying out their duties, and also to provide a clear picture of the rights and position of the child, and the rest of the birth family.
QUESTIONS:
45. Should unmarried fathers without responsibilities and rights be given more legal involvement in adoption and freeing cases? If so, what rights should they be given?
46. Should there be a legal duty on local authorities/agencies to assess family members for long-term care, even if the end result is formally to exclude them?
47. If so, should there be rules about which relatives are included, and time-limits within which they come forward?
48. Should relatives be given a statutory right to enter the freeing or adoption court process to have their say on welfare?
49. What duties should be placed on local authorities/adoption agencies when mothers/parents wish to relinquish children?
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