Podcast: the Ugly
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 Ugly
Dawn has spent time in a mental health hospital. We know that she has been sectioned. (1) 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. (2) 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!!!!! (3) It is emotive to refer to adoption as stealing a child and the multiple exclamation points are excessive and unnecessary.
I do not think (4) 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. (5) The Adoption Act 1976 has been replaced by the Adoption and Children Act 2002.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. (6) 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. (7) 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. (8) 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. (9) ‘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.