Podcast: the Fair
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.
Podcast: the Fair
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. (1) 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 (2) not really appropriate style to say ‘I’ explore what there (3)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. (4) 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. (5) 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. (6) 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. (7) 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. (8) 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. (9) 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. (10) 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. (11) 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. (12) 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. (13) 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. (14) 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. (15) 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.