adoption, fostering anf guardianship

Question 1

guradianship

Answer 1

-sc 5 children act 1989- guardians can be appointed by parents or court
-someone given PR to look after a child if the parents die or become incapacitated
-can be anyone
-can object to adoptions
-no impact on citizenship, inheritance or child maintenance

Question 2

appointment

Answer 2

-sc 5(5) parents can appoint by writing it down,dating and signing it
-the court can appoint if no one with a residence order or PR alive
-court can appoint additional guardians if one already exists

Question 3

ending guardianship

Answer 3

sc6-
cant have more than one guardian at a time, so appointing a new one will revoke the previous, unless made clear 2 guardians intended to co-exist
-parents who appoint can revoke with a signed/dated document
-if the document making the appointment is destroyed the appointment will end
-appointments in wills end when the will is revoked
(3a)- if someone appoints their spouse as a guardian, divorce revokes it
-guardians can write formally to disclam guardianship

Question 4

fostering

Answer 4

-looking after a child, but not related to them or wanting to assume relation
-private and public

Question 5

private fosterage

Answer 5

CA 1989 sc66- when a child is cared for for 28 days or more by a non relative with no PR (do not get PR)
-littel regulations and no need for formalities
-can be inspected by LA but rarely done

public fosterage- where a care order is applied for by LA, the child being looked after by the public

Question 6

when do children get taken into care

Answer 6

care unders sc31 CA
(2) (a)likely to suffer or is suffering harm
(b) the harm must be attributable to care currently given to them, if that care is no what you would reasonably expect a parent to give or attributable to the child being beyond parental control
(3) under 17

Question 7

how is care managed

Answer 7

-manages by LA
-CA s22 (2)- LA has a duty to safeguard and look after the welfare of any child they look after
-also have an obligation to use such services as seem reasonable for children being looked after by their own parents
-in wales this duty is in sc78 of the social service and well being acy 2014

-sc22 (4 )when making choices reagrding a child, they have a legal duty to consult the child, their parents and anyone with PR
-still applies where the child is looked after by them voluntarily or subject to a care order

Question 8

accommodation in care

Answer 8

sc22(c) once a child is in care the LA has a duty to house the child with family or friends if practicable and consistent with their welfare
s22c(8) must be as close as possible to parents house and to any siblings (especially not moving schools)

Question 9

promoting contact

Answer 9

LA has a duty to promote contact with the parents where possible
-sc34 of the CA england and s78(1)(a) of the social services and well being act 2014 in wales- duty to promote contact with parents, family, friends, unless not practical or conductive to their welfare
-to prohibit contact for more than 7 days requires a court order
-court will consider the childs welfare as paramount
-L v L 1989- also a duty to consult the child but do not have to abide by their wishes, but should exercise caution when abuse is involved due to psychological complexities
-order can only compel authority not the parents (parents cant be forced to contact)- Re F 1995

Question 10

duty to review

Answer 10

the LA also has a duty to review to review cases of children in care
-Re F, F v Lambeth LBC 2002- deals with the concept of drift
drfit- when someone is in the care system and is not being monitored, so tend to stay in the care system whether they are supposed to or not
-here interim order made for 2 boys and placed in children home, a year later later a care order made and leave to implement rehabilitation of the parents, then LA decided not to continue with rehabilitation plan, parents applied to discharge care order but psychiatrist report stated children needed the security of perminent care from substitute parents, contact reduced to 4 times a year, children moved homes and supervised contact at home, LA initially leaving door open but did not proceed so parents lost in care

-because of this there is a duty to review the case regularly to prevent drift
-1st review- 4 weeks
-2nd within 3 months of 1st
-after- every 6 months

Question 11

childrens rights in care (public fosterage)

Answer 11

-right to be consulted as a part o f determinations of their welfare
-can apply for order authorising contact
-can apply for a sc8 specific issue order (ask the courts 1 question)
-can apply to discharge care order
-can start complaints process

Question 12

public fosterage

Answer 12

governed by primary legislation- the CA, care standards act 2000, and social services and well-being (wales) act 2014 (but also secondary legislation and pseudo legislation)

Question 13

regulatory structure of public fostering

Answer 13

-nationally overseen by dept of education (ofsted/ care inspectorate for wales)
-national networks - handle less regulatory stuff and do thing such as promotion and networking
-LA- oversee things on a local level and oversee the fostering agencies
-fostering agencies- day to day supervision of foster carers
-foster careres- make day to day decisions for the child

Question 14

diveristy in public fosterage

Answer 14

short stay (weekends and respite care)
long stay (can transition into adoption)
transitional homes/ supported lodging (ages 16-18 to transition from a looked after in care setting to a self managed life)
refuges
therapeutic care

Question 15

process for foster carers

Answer 15

apply to be foster
vetted by agency
matched by agency to child
trained by agency/LA
monitored by LA/ registered care provider

Question 16

quality of fostering

Answer 16

the quality of fostering is regulated by the LA fostering services (wales) regulations 2018 (provide suport/training) OFSTED for england
-duty to provide adequate supervision in England and wales
-minimum standards are conatined in sc25 and sc6 LAFSWR 2018 which include a duty to monitor service and improve

Question 17

adoption

Answer 17

-historically informal
-formalised in the adoption of children act 1929
-now governed by the adoption act 2002-
-sc51- must be over 21 or 18 if own child
-couples msut be married, CP or in a lasting and enduring family relationship
-can still adopt if in a casual relationship but will adopt as a single
-Re CC 2013- child placed with couple who then seperated, court grants joint application and see as both parents (welfare is paramount)
-both parents must consent
-sc49-must be domiciled in the british island and habitually resident for over 1 year
-sc49(4)-adoptees must be under 19 and applictions must be made before 18th bday

Question 18

the process of adoption

Answer 18

-sc1- there is a duty of LA to consider adoption od children being looked after by LA
-adoption should only occur when there is no realistic hope of them being able to live with current family, so rehabilitation would should be done if possible
-twin tracking- rehabilitation at the same time as looking for adoptive parents incase rehabilitation doesnt work
-the adoption agency has a duty to assesses suitability of parents under the adoption agencies regulations 2005, and the suitability of adopters regulations 2005

Question 19

legal effects of adoption

Answer 19

-sc46- adopters get PR, can make all choices any parent could make including appointing a guardian
-sc51- removes parental status and responsibility from all others, unless a step parents is adopting a partners child
-changed inheretance rights
-if adopters are british citizen, adoptee also gains it

Question 20

complexities with adoption

Answer 20

-sc74- adoptee still in prohibited degree of relation to birth relations
-sc74- retain previous nationality
sc71-cannot inherit hereditary peerages or land flowing with that peerage

-A mother v Dorset CC 2019- court will often place more emphasis on the personal, psychological and practical than legal

Question 21

retaining contact (open adoption)

Answer 21

open adoption- where an adoption happens but you can retain contact with original parents
-children and famailies act 2014 sc51- order scan be made compelling new parents to grant contact with birth family
-Re B 2019- child with intellectual diability adopted, final visit before no contact, parents then sought a contact order after, but courts said no because adoptive parents aposed it as time wasnt right sc51 is rarely used
-P (adoption: parental consent) 2008- contrast with above, siblings will probably do better if they maintain contact so courts made a contact order for siblings to remain in contact

Question 22

secret adoptions

Answer 22

-LA will seek to place a child with friends or relatives if possible but the mother may not want them to know
-Re C 2018- mother of chid being adopted was also a child so disclosing this to her family would be harmful to her education and social opportunities so no disclosure
-Re A, B and C 2020- father not informed, court said question that needs to be asked is whether they have PR, what was the substance of the relationship between the father/family and the child, how likely was it that the father/family could offer alternative to adoption, the impact on the psychical, psychological and social wellbeing of the mother of the notification , cultural or relevant factors, could birth be confidential…

Question 23

special guardianship

Answer 23

-adoption and children act 2002
-alternative to adoption- grants stability without cutting connections
-gives PR to new parents but doesnt take away from old parents
-regulated by special guardianship regulations 2005, special guardianship (wales) regulations 2005
-dont become parent
-birth family retains parenthood and PR
-ends at 18
-limited PR

more security than fostering
-child can still access appropriate LA support
-cumbira CC v R 2019- interim care order to grandparents rather than SG so could get supervised more by LA

Question 24

eligibility for special guardianship

Answer 24

-guardians
-LA foster carers of over 1 year
-those with residence order
-anyone child is resident with for 3 of last 5 years
-if child is in LA care, anyone the LA consents to
-anyone who has permission of everyone with PR

Question 25

when to issue special guardianship

Answer 25

-issued with by a special gaurdianship order
-the wellbeing checklist under the CA 1989 applies
-Re F 2015- reatined contact with aunt due to cultural connection but not parents, gave SG order instead of adoption to maintain contact with aunt
-HR required proportionality- if adoption and SG protect welfare enough, the least distuptive wins (normally SG)
Re S 2007- gives us the above principle
-need real evidence- Re J 2007- argument that an adoption order for a child raised by aunt and unce wouldsitort their naturalfamily structure was rejected as child knew their true relationship

Question 26

which is best for those cared for by family members?
inconsistent

Answer 26

-Re J 2007- adoption order
-surrey county council v Al-Hilli 2013- SG so could preserve the connection with dead parents for psychological reasons
-N v B (adoption by grandmother) 2013- adoption as necessary to cut father out of life due to killed mother and SA aunt

Question 27

ending SG

Answer 27

-birth parents can apply for SG to be revoked if can show significant change in circumstances
-SG can apply for revocation
-child can with leave of court
-those who had PR before SG with leave of court
-LA if there is currently a care order
-court can makes its own motion if concerned for welfare of child