VI. Alternatives to Adoption
This section covers other ways of including children in your life. Most of them are possibilities both for people for whom adoption is not the best choice and for people who want or need more experience before approaching an agency. I am not discussing any of the medical alternatives, such as IVF or surrogacy. If you haven’t already investigated these, you should see your doctor and also contact ISSUE or one of the other infertility support organisations.
Residence Orders
If you are a step-parent considering adopting the child by a previous relationship of your husband or wife, you would formerly have been steered toward a custody order or custodianship instead of adoption. That has now been abolished and largely replaced by residence orders and, under the Adoption and Children Act 2002, by special guardianship (see below).
A residence order legally sets out where a child is to live, and it includes the acquisition of parental responsibility for the people in whose names it is made. Residence orders can be made in the names of more than two people living at different addresses. For example, you and your spouse can have a residence order and also your spouse’s former partner. Each order specifies the periods when they are effective, and each holder of the order has exclusive parental responsibility during the time the child is in residence with him. A step-parent who shares a residence order with a child’s parent retains the residence order even if the parent dies. And a parent can appoint a step-parent as a guardian in the event of his or her death.
A residence order falls short of adoption, and for the holder of a residence order who is not also a legal parent of the child, the parental responsibility provisions are not complete. No party to a residence order, legal parent or not, may change the child’s surname or emigrate with the child without either the consent of all the other holders or a court order. A step-parent who holds only a residence order cannot consent to the child’s adoption or appoint a guardian for him, and a child does not automatically inherit by virtue of a residence order, although you can compensate for this in your will.
If you are a parent/step-parent married couple and you feel that in your circumstances a residence order is not adequate or appropriate, you can apply to adopt the child or for special guardianship. You make your application direct to the courts, not through the local social services. You also notify your local social services department. The court will order an investigation by the social services, which is similar to that for other prospective adopters but less involved, and it includes interviewing the non-custodial parent. The social services report to the court and the court can then make an adoption order. But if the court is not satisfied that adoption is right, it is obliged to make what it considers to be the best order (or even refuse to make any order at all), based on the interests of the child, regardless of which order has been applied for. In general the courts will prefer residence or special guardianship orders to adoption orders in the case of step-parents, because an adoption order deprives the non-custodial parent of parental responsibility and deprives the child and his relatives on that side of the family of their relationships with each other.
Special Guardianship
A new provision under the Adoption and Children Act 2002, section 115, is special guardianship. Confusingly, it is in the form of a long and complicated series of amendments creating a new section 14A to the Children Act 1989.
Special guardianship can be awarded to someone over 18 who is not a parent of the child. It is especially intended for people who are already legal guardians, local authority foster parents, or people who have residence orders in their favour for the child. It was also instituted as a way of providing an almost-adoptive relationship between a child and adults from cultures where adoption is for some reason considered improper or contrary to natural law, but where the child still needs the long-term security of new parents with virtually complete parental responsibility. Orthodox Islam forbids adoption in the usual European sense, and special guardianship is especially appropriate for practising Muslims who wish to become parents.
A person wanting to make an application for special guardianship gives notice to the local authority, who then undertake an assessment as in an adoption application, and make a report to the court.
Although a special guardian cannot unilaterally change the child’s name, the court has the power to change the child’s name when the order is granted. A special guardianship order does not extinguish the parental responsibility of other people for the child, or change her legal relationship to her parents, but it does give the special guardian(s) the exclusive right to exercise parental responsibility, with a few exceptions:
- Special guardians cannot change the child’s name.
- Special guardians cannot emigrate to a new country with the child (although they can go on holiday).
- Special guardians cannot give consent for the child’s adoption.
But all of these exceptions can be overcome with the consent of all the people who have parental responsibility for the child or by a court order. Other differences between special guardianship and adoption are:
- A special guardianship order can be revoked by the court (on the application of the special guardians, the child, the local authority, a parent or step-parent, or anyone else with parental responsibility).
- A child does not have rights of inheritance from a special guardian.
- There is no legal carry-over of the relationship between the special guardian(s) and any relatives of the child: for example, you would not in any legal sense be a grandparent of the child’s children.
- Nor does the child acquire any legal relationship with anyone else in the special guardian’s family, such as grandparents, brothers or sisters.
- If the child dies the special guardians have a legal duty to report this to the child’s parents, guardians or others with parental responsibility.
- A special guardianship order expires when the child turns 18.
© Roger Ridley Fenton
