Adoption and Children Act 2002
2002 CHAPTER 38
An Act to restate and amend the law relating to adoption; to make further amendments of the law relating to children; to amend section 93 of the Local Government Act 2000; and for connected purposes.
7th November 2002]
Be it enacted
by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Chapter 1 (E+W+S+N.I.)
1 Considerations applying to the exercise of powers (E+W)
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.
(4) The court or adoption agency must have regard to the following matters (among others) —
(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding) ,
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41) ) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989) ; and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order) , a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order) ,
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,
(b) references to a relative, in relation to a child, include the child’s mother and father.
Chapter 2 (E+W+S+N.I.)
The Adoption Service
The Adoption Service (E+W+S+N.I.)
2 Basic definitions (E+W+S+N.I.)
(1) The services maintained by local authorities under section 3(1) may be collectively referred to as “the Adoption Service”, and a local authority or registered adoption society may be referred to as an adoption agency.
(2) In this Act, “registered adoption society” means a voluntary organisation which is an adoption society registered under Part 2 of the Care Standards Act 2000 (c. 14) ; but in relation to the provision of any facility of the Adoption Service, references to a registered adoption society or to an adoption agency do not include an adoption society which is not registered in respect of that facility.
(3) A registered adoption society is to be treated as registered in respect of any facility of the Adoption Service unless it is a condition of its registration that it does not provide that facility.
(4) No application for registration under Part 2 of the Care Standards Act 2000 may be made in respect of an adoption society which is an unincorporated body.
(5) In this Act—
“the 1989 Act” means the Children Act 1989 (c. 41) ,
“adoption society” means a body whose functions consist of or include making arrangements for the adoption of children,
“voluntary organisation” means a body other than a public or local authority the activities of which are not carried on for profit.
(6) In this Act, “adoption support services” means—
(a) counselling, advice and information, and
(b) any other services prescribed by regulations,
in relation to adoption.
(7) The power to make regulations under subsection (6) (b) is to be exercised so as to secure that local authorities provide financial support.
(8) In this Chapter, references to adoption are to the adoption of persons, wherever they may be habitually resident, effected under the law of any country or territory, whether within or outside the British Islands.
3 Maintenance of Adoption Service (E+W)
(1) Each local authority must continue to maintain within their area a service designed to meet the needs, in relation to adoption, of—
(a) children who may be adopted, their parents and guardians,
(b) persons wishing to adopt a child, and
(c) adopted persons, their parents, natural parents and former guardians;
and for that purpose must provide the requisite facilities.
(2) Those facilities must include making, and participating in, arrangements—
(a) for the adoption of children, and
(b) for the provision of adoption support services.
(3) As part of the service, the arrangements made for the purposes of subsection (2) (b) —
(a) must extend to the provision of adoption support services to persons who are within a description prescribed by regulations,
(b) may extend to the provision of those services to other persons.
(4) A local authority may provide any of the requisite facilities by securing their provision by—
(a) registered adoption societies, or
(b) other persons who are within a description prescribed by regulations of persons who may provide the facilities in question.
(5) The facilities of the service must be provided in conjunction with the local authority’s other social services and with registered adoption societies in their area, so that help may be given in a co-ordinated manner without duplication, omission or avoidable delay.
(6) The social services referred to in subsection (5) are the functions of a local authority which are social services functions within the meaning of the Local Authority Social Services Act 1970 (c. 42) (which include, in particular, those functions in so far as they relate to children).
4 Assessments etc. for adoption support services (E+W)
(1) A local authority must at the request of—
(a) any of the persons mentioned in paragraphs (a) to (c) of section 3(1) , or
(b) any other person who falls within a description prescribed by regulations (subject to subsection (7) (a) ) ,
carry out an assessment of that person’s needs for adoption support services.
(2) A local authority may, at the request of any person, carry out an assessment of that person’s needs for adoption support services.
(3) A local authority may request the help of the persons mentioned in paragraph (a) or (b) of section 3(4) in carrying out an assessment.
(4) Where, as a result of an assessment, a local authority decide that a person has needs for adoption support services, they must then decide whether to provide any such services to that person.
(a) a local authority decide to provide any adoption support services to a person, and
(b) the circumstances fall within a description prescribed by regulations,
the local authority must prepare a plan in accordance with which adoption support services are to be provided to the person and keep the plan under review.
(6) Regulations may make provision about assessments, preparing and reviewing plans, the provision of adoption support services in accordance with plans and reviewing the provision of adoption support services.
(7) The regulations may in particular make provision—
(a) as to the circumstances in which a person mentioned in paragraph (b) of subsection (1) is to have a right to request an assessment of his needs in accordance with that subsection,
(b) about the type of assessment which, or the way in which an assessment, is to be carried out,
(c) about the way in which a plan is to be prepared,
(d) about the way in which, and time at which, a plan or the provision of adoption support services is to be reviewed,
(e) about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan,
(f) as to the circumstances in which a local authority may provide adoption support services subject to conditions,
(g) as to the consequences of conditions imposed by virtue of paragraph (f) not being met (including the recovery of any financial support provided by a local authority) ,
(h) as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area,
(i) as to the circumstances in which a local authority may recover from another local authority the expenses of providing adoption support services to any person.
(8) A local authority may carry out an assessment of the needs of any person under this section at the same time as an assessment of his needs is made under any other enactment.
(9) If at any time during the assessment of the needs of any person under this section, it appears to a local authority that—
(a) there may be a need for the provision of services to that person by a Primary Care Trust (in Wales, a Health Authority or Local Health Board) , or
(b) there may be a need for the provision to him of any services which fall within the functions of a local education authority (within the meaning of the Education Act 1996 (c. 56) ) ,
the local authority must notify that Primary Care Trust, Health Authority, Local Health Board or local education authority.
(10) Where it appears to a local authority that another local authority could, by taking any specified action, help in the exercise of any of their functions under this section, they may request the help of that other local authority, specifying the action in question.
(11) A local authority whose help is so requested must comply with the request if it is consistent with the exercise of their functions.
5 Local authority plans for adoption services (E+W)
(1) Each local authority must prepare a plan for the provision of the services maintained under section 3(1) and secure that it is published.
(2) The plan must contain information of a description prescribed by regulations (subject to subsection (4) (b) ).
(3) The regulations may make provision requiring local authorities—
(a) to review any plan,
(b) in the circumstances prescribed by the regulations, to modify that plan and secure its publication or to prepare a plan in substitution for that plan and secure its publication.
(4) The appropriate Minister may direct—
(a) that a plan is to be included in another document specified in the direction,
(b) that the requirements specified in the direction as to the description of information to be contained in a plan are to have effect in place of the provision made by regulations under subsection (2).
(5) Directions may be given by the appropriate Minister for the purpose of making provision in connection with any duty imposed by virtue of this section including, in particular, provision as to—
(a) the form and manner in which, and the time at which, any plan is to be published,
(b) the description of persons who are to be consulted in the preparation of any plan,
(c) the time at which any plan is to be reviewed.
(6) Subsections (2) to (5) apply in relation to a modified or substituted plan (or further modified or substituted plan) as they apply in relation to a plan prepared under subsection (1).
(7) Directions given under this section may relate—
(a) to a particular local authority,
(b) to any class or description of local authorities, or
(c) except in the case of a direction given under subsection (4) (b) , to local authorities generally,
and accordingly different provision may be made in relation to different local authorities or classes or descriptions of local authorities.
6 Arrangements on cancellation of registration (E+W)
Where, by virtue of the cancellation of its registration under Part 2 of the Care Standards Act 2000 (c. 14) , a body has ceased to be a registered adoption society, the appropriate Minister may direct the body to make such arrangements as to the transfer of its functions relating to children and other transitional matters as seem to him expedient.
7 Inactive or defunct adoption societies etc. (E+W)
(1) This section applies where it appears to the appropriate Minister that—
(a) a body which is or has been a registered adoption society is inactive or defunct, or
(b) a body which has ceased to be a registered adoption society by virtue of the cancellation of its registration under Part 2 of the Care Standards Act 2000 has not made such arrangements for the transfer of its functions relating to children as are specified in a direction given by him.
(2) The appropriate Minister may, in relation to such functions of the society as relate to children, direct what appears to him to be the appropriate local authority to take any such action as might have been taken by the society or by the society jointly with the authority.
(3) A local authority are entitled to take any action which—
(a) apart from this subsection the authority would not be entitled to take, or would not be entitled to take without joining the society in the action, but
(b) they are directed to take under subsection (2).
(4) The appropriate Minister may charge the society for expenses necessarily incurred by him or on his behalf in securing the transfer of its functions relating to children.
(5) Before giving a direction under subsection (2) the appropriate Minister must, if practicable, consult both the society and the authority.
8 Adoption support agencies (E+W+S+N.I.)
(1) In this Act, “adoption support agency” means an undertaking the purpose of which, or one of the purposes of which, is the provision of adoption support services; but an undertaking is not an adoption support agency—
(a) merely because it provides information in connection with adoption other than for the purpose mentioned in section 98(1) , or
(b) if it is excepted by virtue of subsection (2).
“Undertaking” has the same meaning as in the Care Standards Act 2000 (c. 14).
(2) The following are excepted—
(a) a registered adoption society, whether or not the society is registered in respect of the provision of adoption support services,
(b) a local authority,
(c) a local education authority (within the meaning of the Education Act 1996 (c. 56) ) ,
(d) a Special Health Authority, Primary Care Trust (in Wales, a Health Authority or Local Health Board) or NHS trust,
(e) the Registrar General,
(f) any person, or description of persons, excepted by regulations.
(3) In section 4 of the Care Standards Act 2000 (basic definitions) —
(a) after subsection (7) there is inserted—
“(7A) “ Adoption support agency ” has the meaning given by section 8 of the Adoption and Children Act 2002.”,
(b) in subsection (9) (a) (construction of references to descriptions of agencies) , for “or a voluntary adoption agency” there is substituted “ a voluntary adoption agency or an adoption support agency ”.
9 General power to regulate adoption etc. agencies (E+W)
(1) Regulations may make provision for any purpose relating to—
(a) the exercise by local authorities or voluntary adoption agencies of their functions in relation to adoption, or
(b) the exercise by adoption support agencies of their functions in relation to adoption.
(2) The extent of the power to make regulations under this section is not limited by sections 10 to 12, 45, 54, 56 to 65 and 98 or by any other powers exercisable in respect of local authorities, voluntary adoption agencies or adoption support agencies.
(3) Regulations may provide that a person who contravenes or fails to comply with any provision of regulations under this section is to be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) In this section and section 10, “voluntary adoption agency” means a voluntary organisation which is an adoption society.