Question
Dawn is 26 and has a six year old son, Elliot. Dawn has mental health problems and in the last three years has been sectioned under the Mental Health Act twice. She has also spent time in hospital as an informal patient. While Dawn has been in hospital, Elliot has been looked after by Dawn’s brother Fergus and his wife Gina. Eighteen months ago, Dawn went off to stay with some friends for a year and she left Elliot with Fergus and Gina during this time. While Elliot was with Fergus and Gina, Dawn did not make contact with him. On her return she demanded that Elliot come back home with her. She was abusive towards Fergus accusing him of stealing her son and this upset Elliot.
Fergus and Gina would now like the situation formalised. They are happy to care for Elliot as they love him dearly but do not like the fact that Gina can demand his return and unsettle him whenever she wants. Elliot is very happy with Gina and Fergus and has a good relationship with his cousin, Harry. He also loves his mother very much but admits that he finds it frightening when she is ill.
Advise Fergus and Gina.
Good Answer
Fergus and Gina want to formalise their care for Elliot. There are three ways they could do this: an adoption order, a special guardianship order and a residence order. This is a concise introduction which clearly states the options available for Fergus and Gina and suggests a logical structure for the rest of the answer.
Elliot has already stayed with his aunt and uncle and will not need to be placed for adoption by the local authority; therefore, this is a non-agency placement. Gina and Fergus will need to inform the local authority of their intention to adopt (Adoption and Children Act 2002 s 44). Assuming that they are over 21 (Adoption and Children Act 2002 s 50), the other requirement before they apply for the order is that Elliot has been placed with them for long enough. According to the Adoption and Children Act 2002 s 42, Elliot will need to have lived with them for three years out of the previous five years before they can be awarded an adoption order. Whilst Elliot has clearly spent a significant amount of time with Fergus and Gina, it is not clear whether they would satisfy this requirement. The answer has identified the correct adoption procedure and explains this in a clear chronological way. Unlike the weaker answers, it is backed up by references to the relevant sections of the Adoption and Children Act 2002 and the provisions of that Act are applied to the facts for example in relation to the question of whether Elliot has been placed for long enough.
In any case, the court would only make an adoption order if were in Elliot’s welfare, his welfare being paramount to the decision (Adoption and Children Act 2002 s 1(1)). Gina and Fergus are able to meet Elliot’s needs (s 1(4)(b)) and allowing them to adopt him does promote his stability and security. Elliot has a good relationship with them and seems to want to stay with them, but this does not necessarily mean that he would want to be adopted by them, and in any case, Elliot’s views, whilst important, are not decisive (s 1(4)(a)). The main disadvantage of adoption is that in this case it would skew the family relationship. Elliot’s aunt and uncle would become his legal parents. Elliot is six so is old enough to know who his birth mother is and it may be, therefore, that it would be too hard for him to adjust to this change. The court has an obligation under the Adoption and Children Act 2002 s 1(6) to consider other options and it may be that these are preferred to adoption. The answer then discusses whether adoption would be in Elliot’s welfare by identifying factors in section 1 that are relevant and applying them to the facts. Balance is given, as both arguments in favour of adoption and arguments against are discussed.
If the court were to decide that adoption would be in Elliot’s welfare then the question of parental consent would arise. Dawn could oppose the adoption, but her lack of consent would be overridden under s 52(1)(b). If Elliot’s birth father also has parental responsibility, his consent would also be needed or his lack of consent would need to be overridden. On the facts, it seems unlikely that Dawn would consent to an adoption; however, if the court were to decide that adoption were in Elliot’s welfare it is likely that they would then also decide that his welfare required Dawn’s consent to be dispensed with if she were refusing to consent.
The second option is a special guardianship order. Fergus and Gina could obtain leave (Children Act 1989 s 14A(3)(b)) and apply for this order, or the court could make a special guardianship order instead of an adoption order if they were to apply for an adoption order. In any case, whether an order is made depends on Elliot’s welfare (Children Act 1989 s 1(1)). The crucial distinction between adoption and special guardianship is that special guardianship would not remove Dawn’s parental responsibility. Her consent would still be needed for a name change (Children Act 1989 s 14C(3)(a)) or a removal from the jurisdiction. Moreover, she would legally still be Elliot’s mother and, therefore, entitled to apply for Section 8 orders without leave. The answer has explained how special guardianship differs from adoption. This will be returned to later in the answer when the choice between the different orders is made. Once again the answer is backed by reference to the statute.
The final option is the residence order under the Children Act 1989 s 8. This could be made instead of an adoption order or Gina and Fergus could obtain leave to apply. The crucial question is Elliot’s welfare, which is paramount (Children Act 1989 s 1(1)). Gina and Fergus have a good, strong relationship with their nephew and are capable of raising him. The main problem with a residence order is whether it provides sufficient security. Dawn would retain parental responsibility and could apply for right of contact or residence. There is the danger that she would disrupt the placement and unsettle her son.
It is suggested that the choice is between adoption and special guardianship. Special guardianship has the advantage that it does not distort the family relationship, which may be especially important given Elliot’s age. On the other hand, adoption does offer more security, especially because it protects the adopter and the child from future interference by the birth parent (Re AJ (a child) [2007] EWCA Civ 55, Re MJ (a child) [2007] EWCA Civ 56). The choice between adoption and special guardianship is clearly stated and recent case law is cited to show how these issues are viewed by the courts. Given that Dawn has been abusive, it seems that adoption is the most suitable option. Unlike the weaker answers, the writer here has made a decision about which is the more appropriate order and has explained why that choice has been made. It can seem difficult to reach a definite conclusion, but just saying that the court would decide is not enough. Furthermore, even if the student’s conclusion differs from that of the examiner, the student can still receive high marks provided that the conclusion is justified.
Medium Answer
Gina and Fergus want to care for Elliot, who has stayed with them in the past when his mother has been unable to care for him because she has been in hospital or away. Elliot’s mother has become abusive and Gina and Fergus want to give him more stability so they are looking for more formal ways of caring for him. Do not need to restate the facts. In an exam, this would be a waste of time and in coursework a waste of words. In this answer, I will not really appropriate style to say ‘I’ explore what there should be their – remember to check your grammar as mistakes like this won’t be picked up by a computer spell check options are. There are three options for them: adoption, special guardianship and residence order.
Adoption is now covered by the Adoption and Children Act 2002, which replaced the Adoption Act 1976. There are two different adoption procedures: local authority adoption and non local authority adoption. This is not incorrect, but given that this is a problem question should focus on advising Gina and Fergus rather than general history of adoption. Elliot has already lived with Gina and Fergus so this is a non local authority one. Gina and Fergus will need to tell the local authority that they want to adopt Elliot so that a trained social worker can do checks on them and prepare a report for court. This is correct, but could be improved on by referring to the relevant section of the Adoption and Children Act and being more specific about when the notification should happen. The court will allow them to adopt if they have had Elliot with them for the correct amount of time, which is set out in section 42 of the Adoption and Children Act 2002. Ok, but what is the correct period and do Gina and Fergus satisfy it. The court will only allow the adoption if it is in Elliot’s welfare. His welfare will be paramount. Need to refer to the s 1(1) and also to relevant subsections in the welfare checklist in s 1(4) to explain whether adoption would be judged to be in Elliot’s welfare. This is an important change from the old law because under the Adoption Act 1976 the child’s welfare was just the first consideration. The fact that Elliot has a good relationship with his uncle, aunt and cousin is a good argument that adoption would be in his welfare. A lot more needed on whether adoption is in Elliot’s welfare and also a lot more balance – are there any arguments against adoption. The answer should also consider whether the court might prefer alternatives to adoption, such as residence or special guardianship. If the court does decide adoption is in Elliot’s welfare then Dawn can oppose it, but it is likely that her opposition will be overruled because of Elliot’s welfare. This is vague on when lack of consent can be overruled and should refer to relevant sections of the statute.
The next option is for Gina and Fergus to become Elliot’s special guardians. Unlike adoption, this would not give them all the parental responsibility, as Dawn would still have parental responsibility for the most important decisions. This is correct, but could be improved by explaining what those important decisions are and by referring to statute. This may seem less drastic than adoption and it may be a better option, as Elliot would not have the confusion of his aunt and uncle becoming his mum and dad. More balance needed – are there any advantages that adoption has over special guardianship? Gina and Fergus could apply to be special guardians or the court could make a special guardianship order instead of an adoption order. Too superficial and more reference to authority needed.
The final option for Gina and Fergus is to obtain a residence order. A residence order is one of four Section 8 orders – residence order, contact order, specific issue order and prohibition order. A residence order would determine whom Elliot should live with. Too descriptive and general. The answer does not need to list all the Section 8 orders instead it should explain whether Gina and Fergus have a right to apply for a residence order or whether they would need leave, whether leave would be granted and if so whether a residence order would be made. It should also explain that the court could decide to make a residence order instead of an adoption order if it considers that a residence order would better promote Elliot’s welfare. The court would probably make a residence order as it would be in Elliot’s welfare to live with Gina and Fergus. Why is it in Elliot’s welfare to like with Gina and Fergus?
So, in conclusion there are three options. The court would determine which is the most appropriate order on the basis of Elliot’s welfare. This is not a conclusion. The answer needs to determine which option – adoption, residence order or special guardianship order – best promotes Elliot’s welfare and explain why. Particularly important are the security and stability that the orders offer Elliot and their effect on the family dynamic.
Poor Answer
Dawn has spent time in a mental health hospital. We know that she has been sectioned. In a problem question there is no need to restate the facts and, in this particular question, Dawn’s mental health should only be mentioned so far as it is relevant to the long term care of Elliot and what orders the court should make. This could have been under s 2 of the Mental Health Act for assessment, s 3 of the Mental Health act for treatment or section 4 for an Emergency. This is irrelevant speculation. It almost reads as if the student is delaying writing about long term child care orders which he/she does not know about by talking about mental health, which she/he knows a little about. She is angry that her brother is stealing her son and given the fact that he now wants to adopt Elliot she may be right!!!!! It is emotive to refer to adoption as stealing a child and the multiple exclamation points are excessive and unnecessary.
I do not think Not correct style to say ‘I do not think’; better would be ‘The facts do not suggest . . .’ that this is a freeing adoption so the normal provisions of the Adoption Act 1976 will be followed. The Adoption Act 1976 has been replaced by the Adoption and Children Act 2002. Freeing for adoption is no longer available. The answer should instead be based on the Adoption and Children Act 2002. It should explain the correct procedure, which here would be the non-agency procedure, and should discuss whether it would be in Elliot’s welfare to be adopted. Gina and Fergus will have to be accepted as adopters by the court and by their local authority. This is rather vague. The answer should identify rules on who can adopt and explain whether Gina and Fergus satisfy them. This will depend on elliot’s welfare. Far too vague. The answer should explain that Elliot’s welfare is paramount (Adoption and Children Act 2002 s. 1(1)) and should apply the welfare checklist in s 1(4) to discuss whether adoption would be in Elliot’s welfare. The answer should explain that the court will also consider whether alternatives might better promote Elliot’s welfare than adoption and should consider whether a residence order or special guardianship order might be better for Elliot’s welfare. Elliot will need to have lived with them first for at least ten weeks and the court will decide if this requirement has been satisfied. This is wrong. The correct placement period is three years out of the previous five years. The answer should also refer to the relevant section of the Adoption and Children Act 2002 (s. 42). Dawn and elliots father can oppose the adoption. ‘elliots’ father needs a capital E and an apostrophe before the s. Elliot’s father can only oppose the adoption if he has parental responsibility and the facts are not clear that this is the case. In any case, lack of parental consent can be overridden. The answer needs to explain when this can happen and if those circumstances apply here.
Script for podcast
Thank you for reading the problem question about the long term care of Elliot and the three suggested answers. Hopefully you are aiming for, or have already reached, the standard of the ‘good’ answer. Why, then, is it a ‘good’ answer?
First, its explanation of adoption, residence and special guardianship is correct and confidently stated. The answer gives specific information, for example, on how long Elliot would need to be placed for, and applies this to the facts. It also uses statute and case law to show what the law is. Weaker answers tend to contain more waffle and generalities, as if the writer is afraid to say what he or she thinks the answer is in case he or she gets it wrong.
Second, this is a problem question and the good answer applies the law to the facts of the problem. For example, when discussing whether adoption is in Elliot’s welfare, Elliot’s situation is discussed rather than a general discussion on adoption and welfare. There is also balance, and arguments in favour and against adoption are given.
The “good” answer also has a proper conclusion. Conclusions are probably the most difficult bit of any answer to write but a good answer will always have a strong, clear conclusion. Weaker answers will peter out.
Finally, this is a good answer, it is not the good answer. Please have a try at answering the question and coming up with your own good answer. Furthermore, it is a good answer, not a perfect answer, so you may even be able to improve on it.