Adoption and Children Act 2002

Adoption and Children Act 2002

2002 CHAPTER 38

Commentary on Sections

Schedule 4: Transitional and transitory provisions and savings

355. Schedule 4 provides for transitional and transitory provisions and savings.  A number of the provisions in this Schedule amend the Adoption Act 1976 in order to enable changes to the Adoption Service which are introduced by the Act to be implemented in advance of the Act as a whole.

356. Paragraph 3 makes provision in respect of adoption support services.  Paragraph 3(1) provides that the facilities provided by local authorities as part of the service maintained under section 1(1) of the Adoption Act 1976 include such arrangements as may be required by regulations for the provision of adoption support services to prescribed persons.  Sub-paragraph (2) provides that the regulations made under sub-paragraph (1) may require a local authority, on request, to carry out an assessment of the needs for adoption support services of a prescribed person.  Under sub-paragraph (2)(b), where a person’s needs for adoption support services are identified in an assessment, the local authority must decide whether to provide adoption support services to that person.  Where a decision is taken to provide services, in prescribed circumstances, the local authority will be required to prepare a plan for the provision of services (sub-paragraph (2)(c)).  The Government’s intention is to use these provisions to implement its new framework for adoption support services including financial support early in respect of adoptive families and prospective adoptive families.

357. Paragraph 4 makes provision in respect of the regulation of adoption agencies.  Paragraph 4(1)(a) amends section 9 of the Adoption Act 1976 to substitute in subsections (2) and (3) “appropriate Minister” for the “Secretary of State”.  Paragraph 4(1)(b) inserts at the end of section 9 a new section which defines “the appropriate Minister” for the purposes of section 9 and 9A in the same way as in the Care Standards Act 2000 and the Act.  This allows either joint or separate regulations to be made under section 9 of the Adoption Act 1976.  Paragraph 4(2) provides that until section 9(2) of the Adoption Act 1976 is repealed section 36A of the Care Standards Act 2000 (inserted by section 16 of the Act) is to have effect as if after the reference to this Act in subsection (1) there were inserted “or under section 9(2) of the Adoption Act 1972.”  This means that section 36A will apply to the functions of the registration authority under the Adoption Act 1976 as well as under Part 2 of the Care Standards Act 2000 and Chapter 2 of the Act until that section of the Adoption Act 1976 is repealed.

358. Paragraph 5 inserts a new section 9A into the Adoption Act 1976 in respect of independent reviews of determinations.  This paragraph provides for the establishment of a review procedure in respect of qualifying determinations made by adoption agencies.  A person in respect of whom a determination specified in regulations has been made may apply to a panel established by the appropriate Minister for a review of the relevant determination.  It is intended to use this provision to give early effect to the White Paper commitment to provide prospective adopters with a right to request a referral to a panel run by an independent organisation, where an adoption agency indicates that it is minded to turn down their application to adopt.

359. Regulations may be made under new subsection 9A(3) dealing with the duties and powers of a panel (including the power to request a contribution towards the cost of a review from the adoption agency which made the original determination), administration and procedures, appointment of panel members, payment of expenses, the duties of adoption agencies in connection with reviews and the monitoring of reviews.

360. New subsection 9A(4) enables the Secretary of State or the Assembly to delegate functions in relation to the panel to an organisation to perform on his behalf.  “Organisation” is defined as including a public body and a private or voluntary organisation.  Subsection 9A(6) enables the Secretary of State or the Assembly to make payments to such an organisation and under subsection 9A(5) the organisation must perform its functions in accordance with any general or special directions which the Secretary of State or the Assembly may give.

361. Paragraph 10 amends section 13 of the Adoption Act 1976 to provide that the time a child should live with the applicants before a Convention adoption order is made is 6 months.

362. Paragraph 11 amends section 56 of the Adoption Act 1976 to remove the exemption of parents, guardians and relatives from the restrictions on the removal of children for adoption outside Great Britain.  It inserts a power to make regulations to specify that the restrictions do not apply or apply with modification where the prospective adopters are parents, guardians or relatives of the child (or one of them is) or the prospective adopter is a step-parent of the child where any prescribed conditions are met.

363. Paragraph 12 substitutes a new section 56A into the Adoption Act 1976.  New section 56A imposes restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the United Kingdom with the intention of adopting the child in the United Kingdom, unless the person complies with prescribed requirements and meets prescribed conditions.  It also makes it a criminal offence for a British resident to bring or cause someone else to bring a child habitually resident outside the British Islands who he has adopted within the last six months into the United Kingdom, unless he complies with prescribed requirements and meets prescribed conditions.  A person would be liable on summary conviction to up to six months’ imprisonment or a fine not exceeding the statutory maximum, or both, or, in the event of the case being referred to the Crown Court, to up to twelve months’ imprisonment or an unlimited fine, or both.

364. It is intended that regulations will require the British resident to be assessed and approved as suitable to adopt by a United Kingdom adoption agency prior to bringing a child into the United Kingdom.  Regulations under subsection (6) may provide for any provision in Part II of the Adoption Act 1976 to apply with modifications or not to apply.  This reflects the provision in section 83(6).  Regulations under subsection (9) may provide for the restrictions in the earlier subsections not to apply to parents, relatives, guardians or a step-parent of the child.  The first set of regulations under subsection (9) will be subject to the affirmative resolution procedure.

365. Paragraph 14 inserts a new subsection (1A) into section 58 of the Adoption Act 1976 to make clear that the restrictions on advertising in that section include publishing an advertisement by electronic means, such as the Internet.  Sub-paragraph 14(b) provides for the penalty on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.  Paragraph 15 amends section 52 of the Adoption (Scotland) Act 1978 to make similar provision in respect of Scotland.  The amendments to section 58 of the Adoption Act 1976 and section 52 of the Adoption (Scotland) Act 1978 both increase the level of fine that can be imposed as a penalty and introduce the option of imprisonment as a penalty.  Paragraph 16 provides a power to make regulations specifying that references to adoption agencies in those sections include prescribed persons outside the United Kingdom if it is clear that they exercise functions which correspond to those of an adoption agency.