( Last Updated: 17-03-2008 )

Michelmores Solicitor, Amanda Montague-Masson looks at the many considerations of adopting a child.

The United Nations Convention on the rights of the child which was ratified in the United Kingdom in 1991, provides that it is a fundamental right of every child to belong to a family.

Sadly, there are many hundreds of children each year who are unable to remain with the families they were born into and who therefore need to be found a permanent home where they will be able to thrive and make the most of their opportunities.

The Adoption and Children Act 2002 came into force in January 2006, and provides that children under the age of eighteen, who are unmarried or have never been married are eligible for adoption. In a fundamental break with the past, applications for adoption may be made jointly by either a married or an unmarried couple, whether of different sexes or the same sex, living in an enduring family relationship or otherwise by a single person, a step-parent or the partner of the child’s parent. Previously, cohabiting couples were unable to adopt a child jointly.

The child would have had to have been adopted by one or other of the married couple, but not both. The position is not yet clear but it would appear that it is now possible for those who had adoption orders under the old law to re-apply (if the child remains under the age of eighteen) for a joint order.

Although it is not always possible for a child to return to its birth family, research has indicated that where possible emotional links, if not legal links, may be maintained between the child placed in its new adoptive family and its birth family. This may mean that adoptive parents are asked to ensure, or even ordered by the court, that contact continues with the birth mother or father of the child, or even siblings or grandparents. Post-adoption contact in a case of siblings who have not been placed in the same adoptive home together is becoming the rule rather than the exception.

Therefore, although an adoption order severs all legal ties with the birth family, it is no longer presumed that the child will benefit from not having any contact whatsoever with his family of origin. The situation with regard to ongoing contact between the child and the birth family will depend on the circumstances of each individual case.

When making plans for the future having adopted a child, it is important to consider the impact that ongoing contact between a child and its birth family may have. If the child continues to have contact with the birth family, consideration may need to be given at an early stage to ensuring that, in the event of the death of adoptive parent, suitable Guardians have been appointed by Will who will assume control of parental responsibility for the child, including responsibility for any inheritance under the terms of a will or trust. This is not to say that upon the death of the adoptive parent(s) that the birth family regain their parental responsibility, as this is extinguished by the adoption order. If, however, ongoing contact and relationships exist between the birth and adoptive family, it is open to the birth family to make an application for an order concerning the child.

Therefore although it is the case that an adopted child becomes a full member of its new family and assumes the same rights and privileges as if they had been born to the family, including the right of inheritance, special consideration needs to be given in the case of an adoptive child, particularly where, but not exclusively, there is ongoing contact between the child and any member of its birth family. This is particularly an important consideration when considering setting up a trust or making a settlement on a child where he or she may be susceptible to unhealthy influences from their family or origin.

For more information on adoption, please do not hesitate to contact either Amanda Montague-Masson or Rachael Shearmur. General information is available on the website of the British Association for Adoption and Fostering at www.baaf.org.uk.

Amanda Montague-Masson - Solicitor, Family

amm@michelmores.com

« Back