Podcast: the Good
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 Good
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. (1) 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. (2) 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. (3) 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. (4) 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). (5) 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. (6) 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.