Hello. Welcome everybody myself to my mood. I'm very pleased to welcome you to today's bites. Lie session through data law. This is looking at such a guardianship or adoption on What is the difference now in despite Sigh session What? I'm going to opportunities taking you through both of these types of orders, which are, of course, used in public Children or cases. Andi will be looking at the differences between these two types of orders when one order may be more appropriate than the other on. Really, what the differences are the similarities between these orders I'll be taking you through some off the key legislative aspects as well and also some of the case law in this field. So he'd be looking at her various elements throughout the course off this by psy session. So I want to really start with adoption orders from eight. And really, this is where, when it comes to adoption, this is very different special guardianship in terms off the fact off parental responsibility in the sentence us with adoption, the person or persons who adopt a child will exclusively pick up parental responsibility for the child and everybody else who may have had parent responsibility for a child would then lose that. This is different to special guardianship, whereby the special Guardian special guardians will acquire parent responsibility. But this will not take away to PR from other persons, although, as we'll see later, the special guardians will be up to exercise. Prevent to responsibility. Many respects to the exclusion of all other people would print responsibility other than another special guardian, safe for some limited exceptions. Now just hang with adoption for a minute when it comes to adoption than is possible under Section 49 Subsection one of the Adoption Children Act of 2002 for a single person to adopt a child or indeed even for a couple to adopt and when it comes to a couple couple is defined under Section 144 off the Adoption Children Act of 2000 to somebody who may be married, whether same sex otherwise or livers married couples living in and doing family relationship. Unless one of them is the other person's apparent grandparents sister, brother, uncle, or aren't now adoption of mentioned world and give exclusive parent responsibility adopter or adopters on. When you look at section 67 of the act. For example, As for a date that the child is adopted, then the adopted child is then treated as if though they were born to the adopter or adopters in the circumstances. And in fact, the child is regarded as the legitimate child off the adopter. In the circumstances. Section 46 of the act gives exclusive parent responsibility to the adopter whore doctors. And, like I mentioned, everybody else would lose parental responsibility pursuant to Section 46 subsection two off the act on, um Also, the adoption will have the effect of distinguishing any order that may have been made on the Children Act off 1989. Now, when it comes to adoption orders being made as to ways in which these may will be sort. And this is where it may be that the adoption always made either with parental consent or fire the placement order route. And sometimes it may be a freestanding adoption application where there may not have been a placement application sort or lodged previously, and the situations where sometimes you'll have consents on you're looking particularly at Section 19 of the Adoption Children Act of 2002 is whereby a parent with parental responsibility would then be consenting to their child being placed for adoption. And this is where Section 19 of the act comes in. So to give an example, let's say your product situation where, say, a mother has a child, say the father is unknown, or she doesn't which to identify who the father is. She feels that in her particular personal circumstances, she does not feel that she's in a position to be able to care for the child long term. And that's where she made. Then invite local salty to accommodate the child, which can be done under Section 20 off the Children Act of 89 or Section 76 off the 2014 acting Wales Andi that will then give the local authority permission and to accommodate a child voluntarily. But if the modeling goes further and seeks for her child to be placed for adoption than assuming that the father is unknown, or assuming also that the father, if even if known, doesn't have parent responsibility for the child and that's where the mother's consent can be obtained via Section 19 route and is consent that she provides has to be given pursuant to section 52 of the 2002 Adoption and Children Act, whereby the consent must be given unconditionally and also with a full understanding off what's involved. She doesn't even need to know the identity of the person who is going to be adopted. The child. She's here on the Section 19 consenting to a chart being placed for adoption. But then there's also a section 20 of the Adoption and Children 2002 which allows the mother to, in fact, go to the next level, where she's also consenting to a child actually being adopted. That's what what was known as the future adoption, uh, advance consent. Now, as I mentioned, they seize on the basis that the father is unknown and he's not traced or situations where the father doesn't have parental responsibility. If, of course, the father after child is known and does have parental responsibility for a child, they know circumstances. Mother's consent in her own right would be insufficient. You'd require the father's consent. Also, if he has parent responsibility, neither mother nor father's unilateral consent would suffice for Pepsi's of other sections, 19 or section 20 of the Adoption Children Act off 2000 and two. Now this is where you understandably won't get many cases where parents were voluntarily consent to their Children being placed for adoption. There will be some certainly have had situations where bite has happened, where sometimes parents may have really not prepared for the fact that the child is really brought into the world Day made. Not. Mother may not have been aware that she was pregnant until very late in the day situation It may be that did a situation where mother was raped, for example, and she doesn't feel able to be up to look after a child in this way. She may wish to place a child for adoption door circumstances, so you concede there could be a number of a personal reasons. Why mother. And of course, the father in the profit situations may wish to place on consent a charming place for adoption and also actually being adopted thereafter by way of the future consent. Now, in many cases, you find that local authorities, in their capacity as an adoption agency, may then seek to place Children for adoption. But for whom they do not have the consent of a parent with parental responsibility. And that's where they were. Denny to apply to dispense with parental consent, which would be done fire Section 52 subsection one of the adoption Children off 2002. Now that's whereby one would apply on the basis that I was apparent cannot be found or they are incapable of giving consent or the world feel the child is such that the consent is to be dispensed with. So typically, this could be a situation whereby, say, the mother and father have been fully assessed. They are in a situation where they are unable to be up to meet the child's long term needs, said is being family members who have been put forward and none of them have been successful in being able to have positive assessments that local thought His plan for a child is one of adoption, bearing in mind the age of a child in need for stability, certainty and review to given a child the opportunity of having a family for life, which which adoption will amount to. Then they know situations because the consent by their parents is not forthcoming, the local thought he wouldn't be seeking to dispense with parental consent pursuant to Section 52 on the basis that indoor circumstances, the welfare of a child requires the consent to be dispensed with. Now, the Section 19 and Section 20 consent I mentioned were biting voluntary consent. That's consent that cannot be given to the local authority. That, in fact would be given to the reporting officer off calf cast in their capacity as the reporting officer, so they would need to witness that consent her independently. Now this is where by we then need to think about placement orders so placement orders are made under Section 21 of the act. Another mentioned these would be sought on the basis that the local authorities plan in its capacity as adoption agencies to place the child for adoption on either with the consent of a parent or parents have parental responsibility. Or they are seeking to dispense with parental consent under one of the grounds in the Section 52 as I've mentioned, and when it comes to placement orders being granted in these circumstances, one would need to show first and foremost that the child is either subject to a care order, order court need to be satisfied at the threshold criteria under Section 31 subsection two on Met or the child has not paying to guard it. That's the first angle. Don't need to be met insofar as the position with having a placement or have been granted. And secondly, one has to satisfy 1/4. Each parent or guardian who has turned to responsibility for the child has consented. Aunt has not withdrawn their consent order. Parents consensually dispense within the section 52 just mentioned. Now if the local thought he has got a placement order but have not yet then behaved. Place a child for adoption for a reason. And this is where Section 24 of the adoption Children that comes into play where the may well, then be an application for revocation of the placement order. So you can imagine there are certainly pressures upon the local thought to ensure that the for profit that they do apply for educational placement order with a view to then revisiting to plan what plan that may well be in the circumstances now, when it comes to special guardianship orders. As I mentioned, these give D effect or parent responsibility in the way that the special guardian or special Garnett's will acquire parental responsibility. But in a way way, it does not extinguish the PR from other people. PR. But a special garden does have the certainly responsibility to peer. To make decisions to the exclusion of a lot of people would print responsibility. Other than another special guardian, there are having some limited exceptions set up within sections 14 a through to F off the Adoption Children Act at Saudi Children Act of 1989 s so that, for example, so you've got a situation where Sadie grandparents want to become special guardians for the child, there are certain things that they cannot do in the exercise of their parental responsibility via special gunship Porter, for example, they cannot change a chance surname to that off a different name to that that the child was given without the permission of deep parents at parent responsibility or in order from the court. They can consent to child being taken allergy restriction of England wells, but only for a period of up to three months. If it's more than three months to need the permission of Depends would print responsibility and if not, then in order from the courts that are some limitations, which I've written within sections 14 80 WEF off the Children Act. Now, when it comes to special guardianship, there is a requirement to ensure that the applicant to applicants give the appropriate notice that Republicans could I to be married. Persons are on my persons. Parents of the child cannot be special guardians for their own Children, so that's not permitted. And then there's an old. His period on the notice period essentially is whereby three months later, notice would need to give beginning to the local authority of the intention on the part of the proposed best regarding to them become a special garden. That that requirement is to ensure that the local authority and, of course, have the opportunity to be able to carry out the necessary assessment. In this case of Ri are doesn't that I mentioned we are a child emphasizes the fact that it is necessary to ensure that in giving that noticed, the person is first and foremost entire to give notice. That is to say that unless they come within Section 10 subsection four Section 10 subsection five of the Children Act in in terms of then apply for special guards supporting unless to come within that they would firstly need to apply for leave under Section 10 subsection nine, with the reader then giving notice the local authority with a view to than the local authority, assessing them for the purpose of special guardianship. Now let's say you're acting for apparent in one of these situations. We're by Sade. Apparent is concerned that say their parents, like the grandparents or the child, are looking to become a special guardians. The parent is concerned that the parent may somewhat be sidelined by the grand parents if a special Ganesh border has made. This is where hopefully can reassured apparent by telling them that when the court is contemplating making a special gunship border, they must consider whether or not it's feasible in appropriate circumstances to make a child arrangements order, specifying spending time with otherwise having contact with that client highlighted apparent at the point of which they are making the special guarded border. So again, it's very, very important to informed, apparent off that sort of Do you have that reassurance that the court is obliged and consider that in deciding whether to make the order amount, another point of which they are making the order. The notice period of mentioned a case of Ri are on this other case of ri s a child is 2007 quarter appeal cases very useful in that This emphasizes the fact that the court does not have the authority to make a special gun supporter whether it's off. It's emotional by way of an application until it has received a port dealing with matters referred to in section 14 a sub section eight of the Children Act so there has to be report provided doesn't have to be necessarily written in the form of a special gunship report, but it has to follow the matters referred to. It has to cover the factors referred to in section 14 a subsection eight and as long as that's available, even if the report doesn't make command special, guardianships re s emphasizes that the court could then go on and make the special broaden supporter and how long is actually required in order to enable that report to actually be done with this is with a case of Ri s a child number two comes in on this. Emphasized the fact that the court does not have the authority to be able to expedite the report that has been done. IE has to cavort a matters within section 14 a subsection eight off the act on Until that report has been received, a court cannot therefore gone to make the special guardian reporter. What re s number two also emphasizes is that he Ford information is not containing one reported and that wouldn't be a problem as long as within the bundle within the evidence before the court. There is ordinary so information for the purpose of sexual walking A to enable a court to go on and make the special garden supporters. It doesn't have to be contained in order one report as long as it's available within the evidence in order to enable court then to go on and make the order which is felt appropriate and necessary in the circumstances and re l a child this 2007 cases also very important, which emphasizes the point about how far special gardens Congar oh, in exercising their parental responsibility and this case emphasizes that There is, of course, no doubt that special garden ship does confer parent responsibility upon the Special Guardian, but it doesn't take precedence over at the exercise of print responsibility nor respects off. Example. As I mentioned, it doesn't allow the special garden to change a child's surname. For example, it doesnt lead a special guardian to consent to child being taken out of jurisdiction for one and three months, for example. So there are, of course, some limitations between in terms of how one can exercise PR fire special guardianship. Sometimes there will be situations where there is a choice, then between adoption and special guardianship. And this is where you've got cases like we w a childish 2011 case now. This is where it's very important, of course, when you're dealing with these matters to be clear about the fact that the court, in exercising their discretion, must bear in mind a re BS analysis on that is the core has stirred and way up A with a realistic option. So if both adoption of special gunship both realistic options that when it comes to adoption in line with the case of Rebate, the 2000 and 13 case of Tarth of June 2013 The court should not be making the adoption order because we be made it very clear that it should only be granted where nothing goes will do on when all else fails. So if, of course, both sdo special gunship adoption of both realistic orders and realistic options in the circumstances. Unless the court feels there is good reason why the special gun supporters should not be made, then that really re Bs so they re be would come into plain that one would then need to argue that adoption is not in the child's best interest in the circumstances. Now, of course, one has to look at weighing up adoption versus special guardianship. Special Gunship, as I mentioned, does limit the exercise of print responsibility by the persons. Adoption gives exclusive parent responsibility. Adoption may be appropriated circumstances where there is a need for a long term stability particularly, but not always for younger Children. You find on there for the benefits off s geo on adoption, therefore have to be weighed up in no circumstances. Now one of the other issues linked in with that is this case off three PS Children is 2018. Case on what this case illustrates is this. If say, you have a situation whereby say within the care proceedings, family members are assessed. But some family members, let's say, came forward very late in the day. I e. They did not come forward very early on the proceedings when it should have done put a purpose of assessment unless a family member does come forward on his assessed. But now we're very close towards finalisation of the proceedings in terms of 26 weeks coming to to an end than what we PS illustrates is this. If there is still in need to carry out more thorough assessment, particularly Berry 19 bearing in mind a special gunship amendment regulations in England that came into effect in 2015 and also the special Guntram animate regs claiming to affecting Wales in April 2016 which is I 2018 which require more in depth analysis that if there is a need to maybe test a placement by allowing the child on having the child place with the perspective guardian for a period of time than what re Pierce emphasizes is it would be inappropriate to make a short term care order for a period of time. So I stood and finalized proceedings on, then to assess by way of having a child emplacement by way of assessing to see where the special gunship would be appropriate, uh, undone. They were after looking to discharge a care order and then substitute with a special guards reported that would be seen as inappropriate. Instead, what would be required to be done in these circumstances is that the legislation simply does not permit for short term care orders to be granted in these circumstances. On if, as the president of family division at a time, Sir James Mumby, emphasize and re PS, If there is a need at four testing the placement by having a child place from the perspective Special guardian for a period of time, then there is a need to extend the 26 weeks, if that's what's felt, a profit with a view today, enabling that assessment to be undertaken for a period of time and then deciding there after whether or not what water, if any, should be made. And this is where they Centrum Guidance on Special Garden ship came into effect in May 2019 by the Family Justice Council, which emphasizes the fact finding on from the VPs case that there is a need to ensure that family members identified as early as possible. And that's where there should be more effective more for improper use of family group conferences early on. So I still identify family members as early as possible under local authority. It emphasizes needs to ensure that to do an effective Gina Graham under need to be governed by what's in the best interest of the child, as opposed to approval by the parents in the circumstances or parents, it's all your parties, including the Guardian on behalf Child needs to do your positions timeto case manager hearing setting out who they wish to be assessed. US alternative cares for a child, and if there is a need to ensure that there is a need for further assessment, then dismay would need to involve the child in placement. But if that is necessary than rather making a short term care order, one doesn't need to be extended to 26 weeks to neighbor. That assessment to be done on If that's the case, didn't want us to consider What do we do in the interim, for example, to re continue it in from care warders? Or do we make on interim charred arrangements? Order in the meantime, as opposed to making afford care, order on looking at discharging that at a later date in the future so he can see the the thinking behind it. So therefore, just to summarize, you can see adoption of Special gunship. Although they're both very effective orders you can see in their own rights. They're also very different orders as well. Of course, adoption is more draconian in many respects at a special gun supporter because of the exercise of print responsibility. But it may well be the more proper order, in particular circumstances. And therefore what do you do is, of course, weigh up the pros and cons of both order and then decide which one would be more appropriate in the circumstances of the particular case. I hope that's been a useful session for you. Can I thank you very much indeed for listening and I speak X type. Thank you very much. Bye. For now
Webinar
Slides
3062 Users
171 Courses
157 Reviews
