Legalize / United Kingdom / Public General Act

Children Act 1975

Type Public General Act

Publication 1975-11-12

Last updated 2013-06-24

State In force

Department Statute Law Database

Source legislation.gov.uk

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Part I

The Adoption Services

Establishment of Adoption Services

1

2

The social services refered to in section 1(3) are the functions of a local authority which stand referred to the authority's social services committee or, in Scotland, social work committee, including, in particular but without prejudice to the generality of the foregoing, a local authority's functions relating to-

(a) the promotion of the welfare of children by diminishing the need to receive children into care or keep them in care, including (in exceptional circumstances) the giving of assistance in cash ;

(b) the welfare of children in the care of a local authority ;

(d) children who are subject to supervision orders made in matrimonial proceedings;

(e) the provision of residential accommodation for expectant mothers and young children and of day-care facilities ;

(f) the regulation and inspection of nurseries and child minders;

(g) care and other treatment of children through court proceedings and children's hearings.

Duty to promote welfare of child

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In reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.

Approval of adoption societies

4

(1) A body desiring to act as an adoption society or, if it is already an adoption society, desiring to continue to act as such in England and Wales or in Scotland may, in the manner specified by regulations made by the Secretary of State, apply to the Secretary of State for his approval to its doing so.

(2) On an application under subsection (1), the Secretary of State shall take into account the matters relating to the applicant specified in subsections (3) to (5) and any other relevant considerations, and if, but only if, he is satisfied that the applicant is likely to make, or, if the applicant is an approved adoption society, is making, an effective contribution to the Adoption Service or, as the case may be, to the Scottish Adoption Service, he shall by notice to the applicant give his approval, which shall be operative from a date specified in the notice or, in the case of a renewal of approval, from the date of the notice.

(3) In considering the application, the Secretary of State shall have regard, in relation to the period for which approval is sought, to the following—

(a) the applicant's adoption programme, including, in particular, its ability to make provision for children who are free for adoption,

(b) the number and qualifications of its staff,

(d) the organisation and control of its operations.

(4) Where it appears to the Secretary of State that the applicant is likely to operate extensively within the area of a particular local authority he shall ask the authority whether they support the application, and shall take account of any views about it put to him by the authority.

(5) Where the applicant is already an approved adoption society or, whether before or after the passing of this Act, previously acted as an adoption society, the Secretary of State, in considering the application, shall also have regard to the record and reputation of the applicant in the adoption field, and the areas within which and the scale on which it is currently operating or has operated in the past.

(6) If after considering the application the Secretary of State is not satisfied that the applicant is likely to make or, as the case may be, is making an effective contribution to the Adoption Service or, as the case may be, to the Scottish Adoption Service,, the Secretary of State shall, subject to section 6(1) and (2), by notice inform the applicant that his application is refused.

(7) If not withdrawn earlier under section 5, approval given under this section shall last for a period of three years from the date on which it becomes operative, and shall then expire or, in the case of an approved adoption society whose further application for approval is pending at that time, shall expire on the date that application is granted or, as the case may be, refused.

Withdrawal of approval

5

(1) If, while approval of a body under section 4 is operative, it appears to the Secretary of State that the body is not making an effective contribution to the Adoption Service or, as the case may be, to the Scottish Adoption Service, he shall subject to section 6(3) and (4) by notice to the body withdraw the approval from a date specified in the notice.

(2) If an approved adoption society fails to provide the Secretary of State with information required by him for the purpose of carrying out his functions under subsection (1), or fails to verify such information in the manner required by him, he may by notice to the society withdraw the approval from a date specified in the notice.

(3) Where approval is withdrawn under subsection (1) or (2) or expires the Secretary of State may direct the body concerned to make such arrangements as to children who are in its care and other transitional matters as seem to him expedient.

Procedure on refusal to approve, or withdrawal of approval from, societies

6

(1) Before notifying a body which has applied for approval that the application is refused in accordance with section 4(6) the Secretary of State shall serve on the applicant a notice—

(a) setting out the reasons why he proposes to refuse the application;

(b) informing the applicant that he may make representations in writing to the Secretary of State within 28 days of the date of service of the notice.

(2) If any representations are made by the applicant in accordance with subsection (1), the Secretary of State shall give further consideration to the application taking into account those representations.

(3) The Secretary of State shall, before withdrawing approval of an adoption society in accordance with section 5(1), serve on the society a notice—

(a) setting out the reasons why he proposes to withdraw the approval; and

(b) informing the society that they may make representations in writing to the Secretary of State within 28 days of the date of service of the notice.

(4) If any representations are made by the society in accordance with subsection (3), the Secretary of State shall give further consideration to the withdrawal of approval under section 5(1) taking into account those representations.

(5) This section does not apply where the Secretary of State, after having considered any representations made by the applicant in accordance with this section, proposes to refuse approval or, as the case may be, to withdraw approval for reasons which have already been communicated to the applicant in a notice under this section.

Inactive or defunct adoption societies

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(1) If it appears to the Secretary of State that an approved adoption society, or one in relation to which approval has been withdrawn under section 5 or has expired, is inactive or defunct he may, in relation to any child who is or was in the care of the society, 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; and if apart from this section the authority would not be entitled to take that action, or would not be entitled to take it without joining the society in the action, it shall be entitled to do so.

(2) Before giving a direction under subsection (1) the Secretary of State shall, if practicable, consult both the society and the authority.

Adoption orders

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(1) An adoption order is an order vesting the parental rights and duties relating to a child in the adopters, made on their application by an authorised court.

(2) The order does not affect the parental rights and duties so far as they relate to any period before the making of the order.

(3) The making of the order operates to extinguish—

(a) any parental right or duty relating to the child which—

(i) is vested in a person (not being one of the adopters) who was the parent or guardian of the child immediately before the making of the order, or

(ii) is vested in any other person by virtue of the order of any court; and

(b) any duty arising by virtue of an agreement or the order of a court to make payments, so far as the payments are in respect of the child's maintenance for any period after the making of the order or any other matter comprised in the parental duties and relating to such a period.

(4) Subsection (3)(b) does not apply to a duty arising by virtue of an agreement—

(a) which constitutes a trust, or

(b) which expressly provides that the duty is not to be extinguished by the making of an adoption order.

(5) An adoption order may not be made in relation to a child who is or has been married.

(6) An adoption order shall not be made in Scotland in relation to a child who is a minor unless with the consent of the minor; except that where the court is satisfied that the minor is incapable of giving his consent to the making of the order, it may dispense with that consent.

(7) An adoption order may contain such terms and conditions as the court thinks fit.

(8) An adoption order may be made notwithstanding that the child is an adopted child.

(9) Schedule 1 contains for England and Wales further provisions about the effect of adoption and related or comparable provisions about legitimation.

(10) Schedule 2 has effect as respects the status conferred in Scotland by adoption and related matters.

Child to live with adopters before order made

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(1) Where—

(a) the applicant, or one of the applicants, is a parent, stepparent or relative of the child, or

(b) the child was placed with the applicants by an adoption agency or in pursuance of an order of the High Court,

an adoption order shall not be made unless the child is at least 19 weeks old and at all times during the preceding 13 weeks had his home with the applicants or one of them.

(2) Where subsection (1) does not apply, an adoption order shall not be made unless the child is at least twelve months old and at all times during the preceding twelve months had his home with the applicants or one of them.

(3) An adoption order shall not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a married couple, both applicants together in the home environment have been afforded—

(a) where the child was placed with the applicant by an adoption agency, to that agency, or

(b) in any other case, to the local authority within whose area the home is.

Adoption by married couple

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(1) Subject to sections 37(1) and 53(1), an adoption order may be made on the application of a married couple where each has attained the age of 21 but an adoption order shall not otherwise be made on the application of more than one person.

(2) An adoption order shall not be made on the application of a married couple unless—

(a) at least one of them is domiciled in a part of the United Kingdom, or in the Channel Islands or the Isle of Man, or

(b) the application is for a Convention adoption order and section 24 is complied with.

(3) Where the application is made to a court in England or Wales and the married couple consist of a parent and step-parent of the child, the court shall dismiss the application if it considers the matter would be better dealt with under section 42 (orders for custody etc.) of the Matrimonial Causes Act 1973.

Adoption by one person

11

(1) Subject to sections 37(1) and 53(1), an adoption order may be made on the application of one person where he has attained the age of 21 and—

(a) is not married, or

(b) is married and the court is satisfied that—

(i) his spouse cannot be found, or

(ii) the spouses have separated and are living apart, and the separation is likely to be permanent, or

(iii) his spouse is by reason of ill health, whether physical or mental, incapable of making an application for an adoption order.

(2) An adoption order shall not be made on the application of one person unless—

(a) he is domiciled in a part of the United Kingdom, or in the Channel Islands or the Isle of Man, or

(b) the application is for a Convention adoption order and section 24 is complied with.

(3) An adoption order shall not be made on the application of the mother or father of the child alone unless the court is satisfied that—

(a) the other natural parent is dead or cannot be found, or

(b) there is some other reason justifying the exclusion of the other natural parent,

and where such an order is made the reason justifying the exclusion of the other natural parent shall be recorded by the court.

(4) Where the application is made to a court in England or Wales and the applicant is a step-parent of the child the court shall dismiss the application if it considers the matter would be better dealt with under section 42 (orders for custody etc.) of the Matrimonial Causes Act 1973.

Parental agreement

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(1) An adoption order shall not be made unless—

(a) the child is free for adoption; or

(b) in the case of each parent or guardian of the child the court is satisfied that—

(i) he freely, and with full understanding of what is involved, agrees unconditionally to the making of the adoption order (whether or not he knows the identity of the applicants), or

(ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2).

(2) The grounds mentioned in subsection (1)(b)(ii) are that the parent or guardian—

(a) cannot be found or is incapable of giving agreement;

(b) is withholding his agreement unreasonably ;

(d) has abandoned or neglected the child ;

(e) has persistently ill-treated the child ;

(f) has seriously ill-treated the child (subject to subsection (5)).

(3) Subsection (1) does not apply in any case where the child is not a United Kingdom national and the application for the adoption order is for a Convention adoption order.

(4) Agreement is ineffective for the purposes of subsection (1)(b)(i) if given by the mother less than six weeks after the child's birth.

(5) Subsection (2)(f) does not apply unless (because of the ill-treatment or for other reasons) the rehabilitation of the child within the household of the parent or guardian is unlikely.

(6) A child is free for adoption if he is the subject of an order under section 14 and the order has not been revoked under section 16.

Religious upbringing of adopted child

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An adoption agency shall in placing a child for adoption have regard (so far as is practicable) to any wishes of the child's parents and guardians as to the religious upbringing of the child.

Freeing child for adoption

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(1) Where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of the child that—

(a) he freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order, or

(b) his agreement to the making of an adoption order should be dispensed with on a ground specified in section 12(2),

the court shall, subject to subsection (5), make an order declaring the child free for adoption.

(2) No application shall be made under subsection (1) unless—

(a) it is made with the consent of a parent or guardian of the child, or

(b) the adoption agency is applying for dispensation under subsection (1)(b) of the agreement of each parent or guardian of the child, and the child is in the care of the adoption agency.

(3) No agreement required under subsection (1)(a) shall be dispensed with under subsection (1)(b) unless the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption.

(4) An agreement by the mother of the child is ineffective for the purposes of this section if given less than six weeks after the child's birth.

(5) An order under this section shall not be made in Scotland in relation to a child who is a minor unless with the consent of the child ; except that where the court is satisfied that the minor is incapable of giving his consent to the making of the order, it may dispense with that consent.

(6) On the making of an order under this section, the parental rights and duties relating to the child vest in the adoption agency, and subsections (2) and (3) of section 8 apply as if the order were an adoption order and the agency were the adopters.

(7) Before making an order under this section the court shall satisfy itself that each parent or guardian who can be found has been given an opportunity of making, if he so wishes, a declaration that he prefers not to be involved in future questions concerning the adoption of the child; and any such declaration shall be recorded by the court.

(8) Before making an order under this section in the case of an illegitimate child whose father is not its guardian, the court shall satisfy itself in relation to any person claiming to be the father that either—

(a) he has no intention of applying for custody of the child under section 9 of the Guardianship of Minors Act 1971 or under section 2 of the Illegitimate Children (Scotland) Act 1930, or

(b) if he did apply for custody under either of those sections the application would be likely to be refused.

Progress reports to former parent

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(1) This section and section 16 apply to any person ("the former parent") who was required to be given an opportunity of making a declaration under section 14(7) but did not do so.

(2) Within the 14 days following the date twelve months after the making of the order under section 14, the adoption agency in which the parental rights and duties were vested on the making of the order, unless it has previously by notice to the former parent informed him that an adoption order has been made in respect of the child, shall by notice to the former parent inform him—

(a) whether an adoption order has been made in respect of the child, and. (if not)

(b) whether the child has his home with a person with whom he has been placed for adoption.

(3) If at the time when the former parent is given notice under subsection (2) an adoption order has not been made in respect of the child, it is thereafter the duty of the adoption agency to give notice to the former parent of the making of an adoption order (if and when made), and meanwhile to give the former parent notice whenever the child is placed for adoption or ceases to have his home with a person with whom he has been placed for adoption.

(4) If at any time the former parent by notice makes a declaration to the adoption agency that he prefers not to be involved in future questions concerning the adoption of the child—

(a) the agency shall secure that the declaration is recorded by the court which made the order under section 14, and

(b) the agency is released from the duty of complying further with subsection (3) as respects that former parent.

Revocation of section 14 order

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(1) The former parent, at any time more than twelve months after the making of the order under section 14 when—

(a) no adoption order has been made in respect of the child, and

(b) the child does not have his home with a person with whom he has been placed for adoption,

may apply to the court which made the order for a further order revoking it on the ground that he wishes to resume the parental rights and duties.

(2) While the application is pending the adoption agency having the parental rights and duties shall not place the child for adoption without the leave of the court.

(3) Where an order freeing a child for adoption is revoked under this section—

(a) the parental rights and duties relating to the child are vested in the individual or, as the case may be, the individuals in whom they vested immediately before that order was made;

(b) if the parental rights and duties, or any of them, vested in a local authority or voluntary organisation immediately before the order freeing the child for adoption was made, those rights and duties are vested in the individual, or as the case may be, the individuals in whom they vested immediately before they were vested in the authority or organisation ; and

but the revocation does not affect any right or duty so far as it relates to any period before the date of the revocation.

(4) Subject to subsection (5) if the application is dismissed on the ground that to allow it would contravene the principle embodied in section 3—

(a) the former parent who made the application shall not be entitled to make any further application under subsection (1) in respect of the child, and

(b) the adoption agency is released from the duty of complying further with section 15(3) as respects that parent.

(5) Subsection (4) (a) shall not apply where the court which dismissed the application gives leave to the former parent to make a further application under subsection (1), but such leave shall not be given unless it appears to the court that because of a change in circumstances or for any other reason it is proper to allow the application to be made.

Care etc. of child on refusal of adoption order

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(1) Where on an application for an adoption order in relation to a child under the age of 16 the court refuses to make the adoption order then—

(a) if it appears to the court that there are exceptional circumstances making it desirable that the child should be under the supervision of an independent person, the court may order that the child shall be under the supervision of a specified local authority or under the supervision of a probation officer;

(b) if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the child to be entrusted to either of the parents or to any other individual, the court may by order commit the child to the care of a specified local authority.

(2) Where the court makes an order under subsection (1)(b) the order may require the payment by either parent to the local authority, while it has the care of the child, of such weekly or other periodical sum towards the maintenance of the child as the court thinks reasonable.

(3) Sections 3 and 4 of the Guardianship Act 1973 (which contain supplementary provisions relating to children who are subject to supervision, or in the care of local authorities, by virtue of orders made under section 2 of that Act) apply in relation to an order under this section as they apply in relation to an order under section 2 of that Act.

(4) In the application of this section to Scotland—

(a) the words " or under the supervision of a probation officer " in subsection (1)(a) do not apply;

(b) subsection (3) does not apply ; and

(c) subsections (2), (4) and (5) of section 11 of the Guardianship Act 1973 apply in relation to an order under this section as they apply in relation to an order under that section.

Need to notify local authority of adoption application

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(1) An adoption order shall not be made in respect of a child who was not placed with the applicant by an adoption agency unless the applicant has, at least three months before the date of the order, given notice to the local authority within whose area he has his home of his intention to apply for the adoption order.

(2) On receipt of such a notice the local authority shall investigate the matter and submit to the court a report of their investigation.

(3) Under subsection (2), the local authority shall in particular investigate—

(a) so far as is practicable, the suitability of the applicant, and any other matters relevant to the operation of section 3 in relation to the application ; and

(b) whether the child was placed with the applicant in contravention of section 29 of the 1958 Act.

Interim orders

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(1) Where on an application for an adoption order the requirements of sections 12(1) and 18(1) are complied with the court may postpone the determination of the application and make an order vesting the legal custody of the child in the applicants for a probationary period not exceeding two years upon such terms for the maintenance of the child and otherwise as the court thinks fit.

(2) Where the probationary period specified in an order under subsection (1) is less than two years, the court may by a further order extend the period to a duration not exceeding two years in all.

Guardian ad litem and reporting officer

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(1) For the purpose of any application for an adoption order or an order under section 14, 16 or 25, rules shall provide for the appointment, in such cases as are prescribed.—

(a) of a person to act as guardian ad litem of the child upon the hearing of the application, with the duty of safeguarding the interests of the child in the prescribed manner;

(b) of a person to act as reporting officer for the purpose of witnessing agreements to adoption and performing such other duties as the rules may prescribe.

(2) A person who is employed—

(a) in the case of an application for an adoption order, by the adoption agency by whom the child was placed; or

(b) in the case of an application under section 14 by the adoption agency by whom the application was made; or

(c) in the case of an application under section 16 by the adoption agency with the parental rights and duties relating to the child,

shall not be appointed to act as guardian ad litem or reporting officer for the purposes of the application but, subject to that, the same person may if the court thinks fit be both guardian ad litem and reporting officer.

(3) Rules may provide for the reporting officer to be appointed before the application is made.

(4) In relation to Scotland, references in this section to a guardian ad litem shall be construed as references to a curator ad litem.

Hearings of applications etc. in private

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(1) Proceedings in the High Court under this Part may be disposed of in chambers.

(2) All proceedings in the county court under this Part shall be heard and determined in camera.

(3) Proceedings in the magistrates' court under this Part shall be domestic proceedings for the purposes of the Magistrates' Courts Act 1952 but section 57(2)(d) of that Act shall not apply in relation to any proceedings under this Part.

(4) In relation to Scotland, all proceedings before the court under this Part shall be heard and determined in camera unless the court otherwise directs.

Making of order

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(1) In the case of—

(a) an application for an adoption order in relation to a child who is not free for adoption ;

(b) an application for an order under section 14,

rules shall require every person who can be found and whose agreement or consent to the making of the order is required to be given or dispensed with under this Act to be notified of a date and place where he may be heard on the application and of the fact that, unless he wishes or the court requires, he need not attend.

(2) In the case of an application under section 25 rules shall require every person who can be found, and whose agreement to the making of the order would be required if the application were for an adoption order (other than a Convention adoption order), to be notified as aforesaid.

(3) Where an application for an adoption order relates to a child placed by an adoption agency, the agency shall submit to the court a report on the suitability of the applicants and any other matters relevant to the operation of section 3, and shall assist the court in any manner the court may direct.

(4) The court shall not proceed to hear an application for an adoption order in relation to a child where a previous application for a British adoption order made in relation to the child by the same persons was refused by any court unless—

(a) in refusing the previous application the court directed that this subsection should not apply, or

(b) it appears to the court that because of a change in circumstances or for any other reason it is proper to proceed with the application.

(5) The court shall not make an adoption order in relation to a child unless it is satisfied that the applicants have not, as respects the child, contravened section 50 of the 1958 Act (prohibition of certain payments in relation to adoption).

(6) In the application of this section to Scotland for the reference to hearing an application in subsection (4) there shall be substituted a reference to determining an application.

Transfer of parental rights and duties between adoption agencies

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On the joint application of an adoption agency in which the parental rights and duties relating to a child who is in Great Britain are vested under section 14(6) or this section and any other adoption agency, an authorised court may if it thinks fit by order transfer the parental rights and duties to the latter agency.

Convention adoption orders

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(1) An adoption order shall be made as a Convention adoption order if the application is for a Convention adoption order and the following conditions are satisfied both at the time of the application and when the order is made.

(2) The child—

(a) must be a United Kingdom national or a national of a Convention country, and

(b) must habitually reside in British territory or a Convention country, and

(3) The applicant or applicants and the child must not all be United Kingdom nationals living in British territory.

(4) If the application is by a married couple, either—

(a) each must be a United Kingdom national or a national of a Convention country, and both must habitually reside in Great Britain, or

(b) both must be United Kingdom nationals, and each must habitually reside in British territory or a Convention country,

and if the applicants are nationals of the same Convention country the adoption must not be prohibited by a specified provision (as defined in subsection (8)) of the internal law of that country.

(5) If the application is by one person, either—

(a) he must be a United Kingdom national or a national of a Convention country, and must habitually reside in Great Britain, or

(b) he must be a United Kingdom national, and must habitually reside in British territory or a Convention country,

and if he is a national of a Convention country the adoption must not be prohibited by a specified provision (as defined in subsection (8)) of the internal law of that country.

(6) If the child is not a United Kingdom national the order shall not be made—

(a) except in accordance with the provisions, if any, relating to consents and consultations of the internal law relating to adoption of the Convention country of which the child is a national, and

(b) unless the court is satisfied that each person who consents to the order in accordance with that internal law does so with full understanding of what is involved.

(7) The reference to consents and consultations in subsection (6) does not include a reference to consent by and consultation with the applicant and members of the applicant's family (including his or her spouse), and for the purposes of subsection (6) consents may be proved in the manner prescribed by rules and the court shall be treated as the authority by whom, under the law mentioned in subsection (6), consents may be dispensed with and the adoption in question may be effected; and where the provisions there mentioned require the attendance before that authority of any person who does not reside in Great Britain, that requirement shall be treated as satisfied for the purposes of subsection (6) if—

(a) that person has been given a reasonable opportunity of communicating his opinion on the adoption in question to the proper officer or clerk of the court, or to an appropriate authority of the country in question, for transmission to the court; and

(b) where he has availed himself of that opportunity, his opinion has been transmitted to the court.

(8) In subsections (4) and (5) " specified provision " means a provision specified in an order of the Secretary of State as one notified to the Government of the United Kingdom in pursuance of the provisions of the Convention which relate to prohibitions on an adoption contained in the national law of the Convention country in question.

(9) Sections 9 and 10(1) (ascertainment of nationality, anc internal law of foreign country) of the Adoption Act 1968 shall apply with any necessary modifications for the purposes of this section as they apply for the purposes of that Act.

Adoption of children abroad

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(1) Where on an application made in relation to a child by a person who is not domiciled in England and Wales or Scotland an authorised court is satisfied that he intends to adopt the child under the law of or within the country in which the applicant is domiciled, the court may, subject to the following provisions of this section, make an order vesting in him the parental rights and duties relating to the child.

(2) The provisions of this Part relating to adoption orders, except sections 8(1), (9) and (10), 10(2), 11(2), 14 to 16, 19, 22(1), 23 and 24, shall apply in relation to orders under this section as they apply in relation to adoption orders subject to the modification that in section 9(1) for " 19 " and " 13 " there are substituted " 32 " and " 26 " respectively.

(3) Sections 20 to 23 and 24(4) and (5) of the 1958 Act shall apply in relation to an order under this section as they apply in relation to an adoption order except that any entry in the Registers of Births, the Register of Births or the Adopted Children Register which is required to be marked in consequence of the making of an order under this section shall, in lieu of being marked with the word " Adopted " or " Re-adopted " (with or without the addition of the word " (Scotland) " or " (England)") be marked with the words " Proposed Foreign Adoption" or " Proposed Foreign Re-adoption ", as the case may require.

(4) References in Parts III and IV of the 1958 Act to an adoption order include references to an order under this section, and references in this Act and in the 1958 Act to the placing of children for adoption or to the making of arrangements for adoption include references to the placing of children for adoption abroad or the making of arrangements for adoption abroad.

Amendments of Adoption Act 1958

Obtaining of birth certificate by adopted person

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(1) In section 20 of the 1958 Act, in subsection (5), after the word " except " there are inserted the words " in accordance with section 20A of this Act or ".

(2) The following section is inserted in the 1958 Act after section 20:—

(20A) (1) Subject to subsections (4) and (6) of this section the Registrar General shall on an application made in the prescribed manner by an adopted person a record of whose birth is kept by the Registrar General and who has attained the age of 18 years supply to that person on payment of the prescribed fee (if any) such information as is necessary to enable that person to obtain a certified copy of the record of his birth. (2) On an application made in the prescribed manner by an adopted person under the age of 18 years a record of whose birth is kept by the Registrar General and who is intending to be married in England or Wales, and on payment of the prescribed fee (if any), the Registrar General shall inform the applicant whether or not it appears from information contained in the registers of live births or other records that the applicant and the person whom he intends to marry may be within the prohibited degrees of relationship for the purposes of the Marriage Act 1949. (3) It shall be the duty of the Registrar General and each local authority and approved adoption society to provide counselling for adopted persons who apply for information under subsection (1) of this section. (4) Before supplying any information to an applicant under subsection (1) of this section, the Registrar General shall inform the applicant that counselling services are available to him— (a) at the General Register Office ; or (b) from the local authority for the area where the applicant is at the time the application is made; or (c) from the local authority for the area where the court sat which made the adoption order relating to the applicant; or (d) if the applicant's adoption was arranged by an adoption society which is approved under section 4 of the Children Act 1975, from that society. (5) If the applicant chooses to receive counselling from a local authority or an adoption society under subsection (4) the Registrar General shall send to the authority or society of the applicant's choice the information to which the applicant is entitled under subsection (1). (6) The Registrar General shall not supply a person who was adopted before the date on which the Children Act 1975 was passed with any information under subsection (1) of this section unless that person has attended an interview with a counsellor either at the General Register Office or in pursuance of arrangements made by the local authority or adoption society from whom the applicant is entitled to receive counselling in accordance with subsection (4). (7) In this section " prescribed " means prescribed by regulations made by the Registrar General.

Counselling in Scotland for adopted person seeking information about his birth

27

In section 22 of the 1958 Act—

(a) the following words are added at the end of subsection (4)—

or a local authority or an approved adoption society which is providing counselling, under subsection (4A) of this section, for that adopted person.

;

(b) the following subsections are inserted after subsection (4)—

(4A) Where the Registrar General for Scotland furnishes an adopted person with information under subsection (4) of this section, he shall advise that person that counselling services are available— (a) from the local authority for the area where the adopted person lives ; or (b) if the adopted person's adoption was arranged by an adoption society which is approved under section 4 of the Children Act 1975, from that society, and it shall be the duty of such local authority and approved adoption society to provide counselling for adopted persons who have been furnished with information under subsection (4) and who apply to them for counselling in respect of that information. (4B) Where an adopted person has arranged to receive counselling under subsection (4A), the Registrar General for Scotland shall, on receipt of a request from the local authority or adoption society which is providing that counselling, and on payment of the appropriate fee, send to the authority or society an extract of the entry relating to the adopted person in the Register of Births.

Restriction on arranging adoption and placing of children

28

In section 29 of the 1958 Act.—

(a) the following subsection is substituted for subsections (1) and (2)—

(1) A person other than an adoption agency shall not make arrangements for the adoption of a child, or place a child for adoption, unless— (a) the proposed adopter is a relative of the child, or (b) he is acting in pursuance of an order of the High Court

;

(b) the following subsections are inserted after subsection (1)—

(2) An adoption society approved under the Children Act 1975 only as respects England and Wales shall not act as an adoption society in Scotland, except to the extent that it considers it necessary to do so in the interests of a person mentioned in section 1(1) of that Act. (2A) An adoption society approved under the Children Act 1975 only as respects Scotland shall not act as an adoption society in England or Wales, except to the extent that it considers it necessary to do so in the interests of a person mentioned in section 1(1) of that Act.

;

(i) the following is inserted after paragraph (b)—

or (c) receives a child placed with him in contravention of subsection (1) of this section

;

(ii) for the words " six months " there are substituted the words " three months " and for the words " one hundred pounds " there are substituted the words " £400 " ;

(d) the following subsection is substituted for subsection (5)—

(5) Section 17 of the Children Act 1975 shall apply where a person is convicted of a contravention of subsection (1) of this section as it applies where an application for an adoption order is refused.

Restrictions on removal of child pending adoption

29

The following sections are substituted for section 34 of the 1958 Act—

(34) (1) While an application for an adoption order is pending in a case where a parent or guardian of the child has agreed to the making of the adoption order (whether or not he knows the identity of the applicant), the parent or guardian is not entitled, against the will of the person with whom the child has his home, to remove the child from the custody of that person except with the leave of the court. (2) While an application is pending for an order under section 14 of the Children Act 1975 and— (a) the child is in the care of the adoption agency making the application, and (b) the application was not made with the consent of each parent or guardian of the child, no parent or guardian of the child who did not consent to the application is entitled, against the will of the person with whom the child has his home, to remove the child from the custody of that person except with the leave of the court. (3) Any person who contravenes subsection (1) or (2) of this section commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding £400 or both. (34A) (1) While an application for an adoption order in respect of a child made by the person with whom the child has had his home for the five years preceding the application is pending, no person is entitled, against the will of the applicant, to remove the child from the applicant's custody except with the leave of the court or under authority conferred by any enactment or on the arrest of the child. (2) Where a person (" the prospective adopter") gives notice in writing to the local authority within whose area he has his home that he intends to apply for an adoption order in respect of a child who for the preceding five years has had his home with the prospective adopter, no person is entitled, against the will of the prospective adopter, to remove the child from the prospective adopter's custody, except with the leave of a court or under authority conferred by any enactment or on the arrest of the child, before— (a) the prospective adopter applies for the adoption order, or (b) the period of three months from the receipt of the notice by the local authority expires, whichever occurs first. (3) In any case where subsection (1) or (2) of this section applies, and— (a) the child was in the care of a local authority before he began to have his home with the applicant or, as the case may be, the prospective adopter, and (b) the child remains in the care of the authority, the authority shall not remove the child from the actual custody of the applicant or of the prospective adopter except in accordance with sections 35 and 36 of this Act or with the leave of the court. (4) A local authority which receives such notice as aforesaid in respect of a child whom the authority know to be in the care of another local authority or of a voluntary organisation shall, not more than seven days after the receipt of the notice, inform that other authority or the organisation in writing that they have received the notice. (5) Subsection (2) of this section does not apply to any further notice served by the prospective adopter on any local authority in respect of the same child during the period referred to in paragraph (b) of that subsection or within 28 days after its expiry. (6) Any person who contravenes subsection (1) or (2) of this section commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding £400 or both. (7) The Secretary of State may by order made by statutory instrument a draft of which has been approved by each House of Parliament amend subsection (1) or (2) of this section to substitute a different period for the period of five years mentioned in that subsection (or the period which, by a previous order under this subsection, was substituted for that period). (8) In relation to Scotland, subsection (3) of this section does not apply where the removal of the child is authorised, in terms of Part III of the Social Work (Scotland) Act 1968, by a justice of the peace or a children's hearing.

Return of child taken away in breach of section 34 or 34A of 1958 Act

30

(1) An authorised court may on the application of a person from whose custody a child has been removed in breach of section 34 or 34A of the 1958 Act order the person who has so removed the child to return the child to the applicant.

(2) An authorised court may on the application of a person who has reasonable grounds for believing that another person is intending to remove a child from the applicant's custody in breach of section 34 or 3 4A of the 1958 Act by order direct that other person not to remove the child from the applicant's custody in breach of the said section 34 or 34A.

(3) If, in the case of an order made by the High Court under subsection (1), the High Court or, in the case of an order made by a county court under subsection (1), a county court is satisfied that the child has not been returned to the applicant, the court may make an order authorising an officer of the court to search such premises as may be specified in the order for the child and, if the officer finds the child, to return the child to the applicant.

(4) If a justice of the peace is satisfied by information on oath that there are reasonable grounds for believing that a child to whom an order under subsection (1) relates is in premises specified in the information, he may issue a search warrant authorising a constable to search the premises for the child; and if a constable acting in pursuance of a warrant under this section finds the child, he shall return the child to the person on whose application the order under subsection (1) was made.

(5) An order under subsection (3) may be enforced in like manner as a warrant for committal.

(6) Subsections (3), (4) and (5) do not apply to Scotland.

Return of child on refusal of adoption order

31

In section 35 of the 1958 Act, the following subsection is inserted after subsection (5)—

(5A) Where an application for an adoption order is refused the court may, if it thinks fit, at any time before the expiry of the period of seven days mentioned in subsection (3) of this section order that period to be extended to a duration, not exceeding six weeks, specified in the order.

Payment of allowances to adopters

32

In section 50 (prohibition of certain payments in relation to adoption) of the 1958 Act, the following subsections are inserted at the end—

(4) If an adoption agency submits to the Secretary of State a scheme for the payment by the agency of allowances to persons who have adopted or intend to adopt a child where arrangements for the adoption were made, or are to be made, by that agency, and the Secretary of State approves the scheme, this section shall not apply to any payment made in accordance with the scheme. (5) The Secretary of State, in the case of a scheme approved by him under subsection (4) of this section, may at any time— (a) make, or approve the making by the agency of, alterations to the scheme ; (b) revoke the scheme. (6) The Secretary of State shall, within seven years of the date on which section 32 of the Children Act 1975 comes into force and, thereafter, every five years, publish a report on the operation of the schemes since that date or since the publication of the last report. (7) Subject to the following subsection, subsection (4) of this section shall expire on the seventh anniversary of the date on which it comes into force. (8) The Secretary of State may by order made by statutory instrument at any time before the said anniversary, repeal subsection (7) of this section. (9) An order under subsection (8) of this section shall not be made unless— (a) a report has been published under subsection (6) of this section, and (b) a draft of the order has been laid before Parliament and approved by resolution of each House. (10) Notwithstanding the expiry of subsection (4) of this section or the revocation of a scheme approved under this section, subsection (1) of this section shall not apply in relation to any payment made, whether before or after the expiry of subsection (4) or the revocation of the scheme, in accordance with a scheme which was approved under this section to a person to whom such payments were made, where the scheme was not revoked, before the expiry of subsection (4) or, if the scheme was revoked, before the date of its revocation.

Part II — Custody

Custodianship orders

33

(1) An authorised court may on the application of one or more persons qualified under subsection (3) make an order vesting the legal custody of a child in the applicant or, as the case may be, in one or more of the applicants . . .

(2) An order under subsection (1) may be referred to as a custodianship order, and the person in whom legal custody of the child is vested under the order may be referred to as the custodian of the child.

(3) The persons qualified to apply for a custodianship order are—

(a) a relative or step-parent of the child—

(i) who applies with the consent of a person having legal custody of the child, and

(ii) with whom the child has had his home for the three months preceding the making of the application;

(b) any person—

(i) who applies with the consent of a person having legal custody of the child, and

(ii) with whom the child has had his home for a period or periods before the making of the application which amount to at least twelve months and include the three months preceding the making of the application;

(c) any person with whom the child has had his home for a period or periods before the making of the application which amount to at least three years and include the three months preceding the making of the application.

(4) The mother or father of the child is not qualified under any paragraph of subsection (3).

(5) A step-parent of the child is not qualified under any paragraph of subsection (3) if in proceedings for divorce or nullity of marriage the child was named in an order made under paragraph (b) or (c) of section 41(1) (arrangements for welfare of children of family) of the Matrimonial Causes Act 1973.

(6) If no person has legal custody of the child, or the applicant himself has legal custody or the person with legal custody cannot be found, paragraphs (a) and (b) of subsection (3) apply with the omission of sub-paragraph (i).

(7) The Secretary of State may by order a draft of which has been approved by each House of Parliament amend subsection (3)(c) to substitute a different period for the period of three years mentioned in that paragraph (or the period which, by a previous order under this subsection, was substituted for that period).

(8) Subsection (5) does not apply—

(a) if the parent other than the one the step-parent married is dead or cannot be found, or

(b) if the order referred to in subsection (5) was made under subsection (1)(c) of section 41 of the Matrimonial Causes Act 1973 and it has since been determined that the child was not a child of the family to whom that section applied.

(9) For the avoidance of doubt, it is hereby declared that the provisions of section 1 of the Guardianship of Minors Act 1971 apply to applications made under this Part of this Act.

(9A) In this Part of this Act references (however expressed) to any relationship between two persons shall be construed in accordance with section 1 of the Family Law Reform Act 1987.

(10) This section and sections 34 to 46 do not apply to Scotland.

Access and maintenance

34

(1) An authorised court may, on making a custodianship order or while a custodianship order is in force, by order—

(a) on the application of the mother, the father or a grandparent of the child, make such provision as it thinks fit requiring access to the child to be given to the applicant;

(b) on the application of the custodian, require the child’s mother or father (or both) to make to the applicant for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;

(c) on the application of the custodian, require the child’s mother or father (or both) to pay to the applicant for the benefit of the child or to the child such lump sum as may be so specified;

(d) on the application of the child’s mother or father, revoke an order requiring the applicant to contribute to the child’s maintenance made (otherwise than under this section) by any court;

(e) on the application of the child’s mother or father or the custodian, vary an order made (otherwise than under this section) by any court requiring the mother or father to contribute towards the child’s maintenance—

(i) by altering the amount of the contributions;

(ii) by substituting the custodian for the person to whom the contributions were ordered to be made.

(2) References in subsection (1) to the child’s mother or father include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the Matrimonial Causes Act 1973).

(3) No order shall be made under subsection (1)(b) or (c) requiring the father of an illegitimate child to make any payments to the child’s custodian or to the child.

(4) An authorised court shall have power to make an order under subsection (1)(a) in favour of a grandparent of a child notwithstanding that the child is illegitimate.

(5) Subsections (2), (3), (3A), (3B), (4), (4A), (5A), (5B), (5C), (5D) and (5E) (orders as to the supervision, local authority care, maintenance etc. of children) of section 2 of the Guardianship Act 1973 and sections 3 and 4 of that Act (supplementary provisions) shall apply to an application for a custodianship order as they apply to an application under section 9 of the Guardianship of Minors Act 1971 subject to the following modifications, that is to say—

(a) in section 2(2)(b) and (4A) of the Guardianship Act 1973 any reference to a parent of a minor to whom the order relates shall be construed as including a reference to any other individual;

(b) section 3(3) of that Act shall have effect as if the words “or the custodian” were inserted after the words “application of either parent”;

(c) in section 4(2) of that Act the reference to section 6 of that Act shall be construed as including a reference to section 39 and 40 of this Act.

(6) A local authority may make contributions to a custodian towards the cost of the accommodation and maintenance of the child, except where the custodian is the husband or wife of a parent of the child.

Revocation and variation of orders

35

(1) An authorised court may by order revoke a custodianship order on the application of—

(a) the custodian, or

(b) the mother or father, or a guardian, of the child, or

(2) The court shall not proceed to hear an application made by any person for the revocation of a custodianship order where a previous such application made by the same person was refused by that or any other court unless—

(a) in refusing the previous application the court directed that this subsection should not apply, or

(b) it appears to the court that because of a change in circumstances or for any other reason it is proper to proceed with the application.

(3) The custodian of a child may apply to an authorised court for the revocation or variation of any order made under section 34 (other than an order under subsection (1)(c)) in respect of that child.

(4) Any other person on whose application an order under section 34 was made, or who was required by an order made under that section (other than an order under subsection (1)(c)) to contribute towards the maintenance of the child, may apply to an authorised court for the revocation or variation of that order.

(4A) An application for the variation of an order made under section 34(1)(b) may, if the child has attained the age of sixteen, be made by the child himself.

(5) Any order made under section 34(1)(a), (b) or (e) in respect of a child who is the subject of a custodianship order shall cease to have effect on the revocation of the custodianship order.

(6) A custodianship order made in respect of a child, and any order made under section 34(1)(a) in respect of the child, shall cease to have effect when the child attains the age of 18 years.

(7) On an application under this section for the revocation or variation of an order made under section 34(1)(b), the court shall have power to suspend the operation of any provision of that order temporarily and to revive the operation of any provision so suspended.

(8) In exercising its power under this section to revoke or vary an order made under section 34(1)(b), the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order.

(9) Where on an application under this section the court varies any payments required to be made under section 34(1)(b), the court may provide that the payments as so varied shall be made from such date as the court may specify, not being earlier than the date of the making of the application.

(10) Where an order made under section 34(1)(b) ceases to have effect on the date on which the child attains the age of sixteen or at any time after that date but before or on the date on which he attains the age of eighteen, then, if at any time before he attains the age of twenty-one an application is made by the child to an authorised court for an order under this subsection, the court shall have power by order to revive the first mentioned order from such date as the court may specify, not being earlier than the date of the making of the application, and to vary or revoke under this section any order so revived.

(10) Where an order under section 34(1)(b) ceases to have effect on the date on which the child attains the age of 16 or at any time after that date but before or on the date on which he attains the age of 18, the child may apply to an authorised court, other than a magistrates’ court, for an order for the revival of that order, and if, on such an application, it appears to the court that—

(a) the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he also is, will be or would be in gainful employment; or

(b) there are special circumstances which justify the making of an order under this subsection,

the court shall have power by order to revive the order made under section 34(1)(b) from such date as the court may specify, not being earlier than the date of the making of the application and to vary or revoke under this section any order so revived.

(10A) Any order made by a magistrates’ court under section 34(1)(b) which is revived by an order under subsection (10) shall for the purposes of the enforcement of the order be treated as an order made by the magistrates’ court by which the order was originally made.

(11) The powers of a magistrates’ court to revoke, revive or vary under section 60 of the Magistrates’ Courts Act 1980 an order for the periodical payment of money and to suspend or rescind under section 63(2) of that Act certain other orders shall not apply in relation to a custodianship order or an order made under section 34.

Care etc. of child on revocation of custodianship order

36

(1) Before revoking a custodianship order the court shall ascertain who would have legal custody of the child, if, on the revocation of the custodianship order, no further order were made under this section.

(2) If the child would not be in the legal custody of any person, the court shall, if it revokes the custodianship order, commit the care of the child to a specified local authority.

(3) If there is a person who would have legal custody of the child on the revocation of the custodianship order, the court shall consider whether it is desirable in the interests of the welfare of the child for the child to be in the legal custody of that person and—

(a) if the court is of the opinion that it would not be so desirable, it shall on revoking the custodianship order commit the care of the child to a specified local authority;

(b) if it is of the opinion that while it is desirable for the child to be in the legal custody of that person, it is also desirable in the interests of the welfare of the child for him to be under the supervision of an independent person, the court shall, on revoking the custodianship order, order that the child shall be under the supervision of a specified local authority or of a probation officer.

(4) Before exercising its functions under this section the court shall, unless it has sufficient information before it for the purpose, request—

(a) a local authority to arrange for an officer of the authority, or

(b) a probation officer,

to make to the court a report, orally or in writing, on the desirability of the child returning to the legal custody of any individual, and it shall be the duty of the local authority or probation officer to comply with the request.

(5) Where the court makes an order under subsection (3)(a) the order may require either parent to make to the local authority or to the child such periodical payments, and for such term, as may be specified in the order; but the order shall only require payments to be made to the local authority while it has the care of the child.

(5A) An order made under subsection (3)(a) with reference to an illegitimate child shall not require the father of that child to make any payments to the local authority or to the child.

(5B) The court in deciding whether to exercise its powers under subsection (5) and, if so, in what manner, shall have regard to all the circumstances of the case including the matters to which the court is required to have regard under section 34A.

(5C) Section 34B shall apply in relation to an order under subsection (5) as it applies in relation to an order under section 34(1)(b).

(6) Sections 3 and 4 of the Guardianship Act 1973 (which contain supplementary provisions relating to children who are subject to supervision, or in the care of local authority, by virtue of orders made under section 2 of that Act) apply in relation to an order under this section as they apply in relation to an order under section 2 of that Act subject to the modification that the reference in section 4(2) of that Act to section 6 of that Act shall be construed as including a reference to subsection (4) of this section.

(7) Subsections (2) to (6) of section 6 of the Guardianship Act 1973 shall apply in relation to reports which are requested by magistrates’ courts under this section as they apply to reports under subsection (1) of that section.

Custodianship order on application for adoption or guardianship

37

(1) Where on an application for an adoption order by a relative of the child or by the husband or wife of the mother or father of the child, whether alone or jointly with his or her spouse, the requirements of section 12section 16 of the Adoption Act 1976 or, where the application is for a Convention adoption order, section 24(6)section 17(6) of that Act are satisfied, but the court is satisfied—

(a) that the child’s welfare would not be better safeguarded and promoted by the making of adoption order in favour of the applicant, than it would be by the making of a custodianship order in his favour, and

(b) that it would be appropriate to make a custodianship order in the applicant’s favour,

the court shall direct the application to be treated as if it had been made by the applicant under section 33, but if the application was made jointly by the father or mother of the child and his or her spouse, the court shall direct the application to be treated as if made by the father’s wife or the mother’s husband alone.

(2) Where on an application for an adoption order made—

(a) by a person who is neither a relative of the child nor the husband or wife of the mother or father of the child; or

(b) by a married couple neither of whom is a relative of the child or the husband or wife of the mother or father of the child,

the said requirements are satisfied but the court is of opinion that it would be more appropriate to make a custodianship order in favour of the applicant, it may direct the application to be treated as if it had been made by the applicant under section 33.

(3) Where on an application under section 9 (orders for custody and maintenancesection 9 (orders for custody on application of mother or father) of the Guardianship of Minors Act 1971 the court is of opinion that legal custody should be given to a person other than the mother or father, it may direct the application to be treated as if it had been made by that person under section 33.

(4) Where a direction is given under this section the applicant shall be treated (if such is not the case) as if he were qualified to apply for a custodianship order and this Part, except section 40, shall have effect accordingly.

(4A) Where a custodianship order is made by virtue of a direction under subsection (3) or a direction under section 8(3) of the Domestic Proceedings and Magistrates’ Courts Act 1978, the court may direct that the order, or such provision thereof as the court may specify, shall not have effect until the occurrence of an event specified by the court or the expiration of a period so specified; and where the court has directed that the custodianship order, or any provision thereof, shall not have effect until the expiration of a specified period, the court may, at any time before the expiration of that period, direct that the order, or that provision thereof, shall not have effect until the expiration of such further period as the court may specify.

(5) Subsection (1) does not apply to an application made by a step-parent whether alone or jointly with another person in any case where the step-parent is prevented by section 33(5) from being qualified to apply for a custodianship order in respect of the child.

(6) Subsections (1) and (2) do not apply to an application for an adoption order made by the child’s mother or father alone.

Disputes between joint custodians

38

If two persons have a parental right or duty vested in them jointly by a custodianship order or by virtue of section 44(2) but cannot agree on its exercise or performance, either of them may apply to an authorised court, and the court may make such order regarding the exercise of the right or performance of the duty as it thinks fit.

Reports by local authorities and probation officers

39

(1) A court dealing with an application made under this Part, or an application which is treated as if made under section 33, may request—

(a) a local authority to arrange for an officer of the authority, or

(b) a probation officer,

to make to the court a report, orally or in writing, with respect to any specified matter which appears to the court to be relevant to the application, and it shall be the duty of the local authority or probation officer to comply with the request.

(2) Subsections (2) to (6) of section 6 of the Guardianship Act 1973 shall apply in relation to reports which are requested by magistrates’ courts under this section as they apply to reports under subsection (1) of that section.

Notice of application to be given to local authority

40

(1) A custodianship order shall not be made unless the applicant has given notice of the application for the order to the local authority in whose area the child resides within the seven days following the making of the application, or such extended period as the court or local authority may allow.

(2) On receipt of a notice given by the applicant under subsection (1) the local authority shall arrange for an officer of the authority to make a report to the court (so far as is practicable) on the matters prescribed under subsection (3) and on any other matter which he considers to be relevant to the application.

(3) The Secretary of State shall by regulations prescribe matters which are to be included in a report under subsection (2) and, in particular, but without prejudice to the generality of the foregoing, the prescribed matters shall include—

(a) the wishes and feelings of the child having regard to his age and understanding and all other matters relevant to the operation of section 1 (principle on which questions relating to custody are to be decided) of the Guardianship of Minors 1971 in relation to the application;

(b) the means and suitability of the applicant;

(d) the wishes regarding the application, and the means, of the mother and father of the child.

(4) Subsections (2), (3) and (3A) of section 6 of the Guardianship Act 1973 shall apply to a report under this section which is submitted to a magistrates’ court.

Restriction on removal of child where applicant has provided home for three years

41

(1) While an application for a custodianship order in respect of a child made by the person with whom the child has at the time the application is made had his home for a period (whether continuous or not) amounting to at least three years is pending, another person is not entitled, against the will of the applicant, to remove the child from the applicant’s actual custody except with the leave of a court or under authority conferred by any enactment or on the arrest of the child.

(2) In any case where subsection (1) applies, and

(a) the child was in the care of a local authority before he began to have his home with the applicant, and

(b) the child remains in the care of a local authority,

the authority in whose care the child is shall not remove the child from the applicant’s actual custody except with the applicant’s consent or the leave of a court.

(3) Any person who contravenes subsection (1) commits an offence and shall be liable 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.

(4) The Secretary of State may by order a draft of which has been approved by each House of Parliament amend subsection (1) to substitute a different period for the period mentioned in that subsection (or the period which, by a previous order under this subsection, was substituted for that period).

Return of child taken away in breach of section 41

42

(1) An authorised court may on the application of a person from whose actual custody a child has been removed in breach of section 41 order the person who has so removed the child to return the child to the applicant.

(2) An authorised court may on the application of a person who has reasonable grounds for believing that another person is intending to remove a child from the applicant’s actual custody in breach of section 41 by order direct that other person not to remove the child from the applicant’s custody in breach of that section.

(3) If, in the case of an order made by the High Court under subsection (1), the High Court or, in the case of an order made by a county court under subsection (1), a county court is satisfied that the child has not been returned to the applicant, the court may make an order authorising an officer of the court to search such premises as may be specified in the order for the child and, if the officer finds the child, to return the child to the applicant.

(4) If a justice of the peace is satisfied by information on oath that there are reasonable grounds for believing that a child to whom an order under subsection (1) relates is in premises specified in the information, he may issue a search warrant authorising a constable to search the premises for the child; and if a constable acting in pursuance of a warrant under this section finds the child, he shall return the child to the person on whose application the order under subsection (1) was made.

(5) An order under subsection (3) may be enforced in like manner as a warrant for committal.

Enforcement of orders made by magistrates' courts

43

(1) If at a time when the custodian is entitled to actual custody of the child by virtue of a custodianship order made by a magistrates’ court any other person has actual custody of him, a copy of the custodianship order may be served on that person and thereupon the order may, without prejudice to any other remedy open to the custodian, be enforced under section 63(3) of the Magistrates’ Courts Act 1980 as if it were an order of a magistrates’ court requiring that person to give up the child to the custodian.

(2) Any person for the time being under an obligation to make payments in pursuance of any order for the payment of money made by a magistrates’ court under section 34 shall give notice of any change of address to such person (if any) as may be specified in the order; and if he fails without reasonable excuse to give such a notice he commits an offence and shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(3) An order for the payment of money made by a magistrates’ court under section 34 shall be enforceable as a magistrates’ court maintenance order within the meaning of section 150(1) of the Magistrates’ Courts Act 1980.

(3) An order for the payment of money made by a magistrates’ court under section 34 may be enforced in like manner as an affiliation order, and the enactments relating to affiliation orders shall apply accordingly with the necessary modifications.

Effect of custodianship order on existing custody

44

(1) While a custodianship order has effect in relation to a child the right of any person other than the custodian to legal custody of the child is suspended, but, subject to any further order made by any court, revives on the revocation of the custodianship order.

(2) Subsection (1) does not apply where the person already having custody is a parent of the child and the person who becomes custodian under the order is the husband or wife of the parent; and in such a case the spouses have the legal custody jointly.

Affiliation order on application by custodian

45

(1) Where a custodianship order subsists in respect of an illegitimate child, and no affiliation order relating to the child has been made under the Affiliation Proceedings Act 1957, the custodian of the child may apply to a justice of the peace acting for the petty sessions area in which the child or the child’s mother resides for a summons to be served under section 1 of that Act.

(2) The court shall proceed on the application as on a complaint under that section, but the person entitled to any payments under an affiliation order made on the application shall be the custodian.

(3) An application may not be made under subsection (1)—

(a) if the custodian is married to the child’s mother, or

(b) more than three years after the custodianship order was made.

Procedure in magistrates' courts

46

(1) It is hereby declared that any jurisdiction conferred on a magistrates’ court by virtue of this Part is exercisable notwithstanding that the proceedings are brought by or against a person residing outside England and Wales.

(2) A magistrates’ court may, subject to subsection (3), proceed on an application for an order under this Part notwithstanding that the defendant has not been served with the summons, and rules may prescribe matters as to which the court is to be satisfied before proceeding in such a case.

(3) A magistrates’ court shall not—

(a) make an order under this Part requiring a person to make periodical payments or pay a lump sum towards the maintenance of a child, or

(b) vary an order under this Part so as to increase a person’s liability to make periodical payments towards the maintenance of a child,

unless the person has been served with the summons.

(4) Rules may make provision as to the persons who are to be made defendants to a complaint for an order under this Part and where there are two or more defendants to such a complaint the power of the court under section 64(1) of the Magistrates’ Courts Act 1980 (power to award costs etc.) shall be deemed to include power, whatever adjudication the court makes, to order any of the parties to pay the whole or part of the costs of all or any of the parties.

(5) In this section, “rules” means rules made under section 15 of the Justices of the Peace Act 1949.

Custody in Scotland

Granting of custody

47

Miscellaneous provisions relative to custody

48

Notice to local authority of certain custody applications

49

Payments towards maintenance of children

50

Without prejudice to any existing powers and duties to make payments in respect of the maintenance of children, where a child under the age of eighteen is residing with and being cared for (other than as a foster child) by a person other than a parent of the child, a council constituted under section 2 of the Local Government (Scotland) Act 1994 may make to that person payments for or towards the maintenance of the child.

Restriction on removal of child where applicant has provided home for three years

51

(1) Where a person has applied for a residence order in relation to a child, it shall be an offence, except with the authority of a court or under authority conferred by any enactment or on the arrest of the child, to remove the child from the care and possession of the applicant against the will of the applicant if—

(a) the child has been in the care and possession of that person for a period or periods before the making of the application which amount to at least three years; and

(b) the application is pending in any court.

(2) In any case where subsection (1) applies, and the child—

(a) was being looked after by a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 before he began to have his home with the applicant, and

(b) continues to be looked after by such a council,

the council by whom the child is being looked after shall not remove him from the applicant’s care and possession except—

(i) with the applicant’s consent;

(ii) with the leave of the court; or

(iii) in accordance with an order made, or authority or warrant granted, under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995.

(iv) in accordance with section 56 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (constable’s power to remove child to place of safety); or

(v) in accordance with an order or warrant under that Act of 2011.

(3) Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable 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.

(4) The Secretary of State may by order, a draft of which has been approved by each House of Parliament, amend subsection (1) to substitute a different period for the period mentioned in that subsection (or for the period which, by a previous order under this subsection, was substituted for that period).

(5) In this section “ looked after ” and “ residence order ” have the meanings given respectively by section 17(6) and section 11(2)(c) of the Children (Scotland) Act 1995; and “ residence order ” shall have the same meaning in sections 52 and 53 of this Act.

Return of child taken away in breach of section 51

52

A court in which an application for a residence order in relation to a child is pending may—

(a) on the application of a person from whose care and possession the child has been removed in breach of section 51, order the person who has so removed the child to return the child to the applicant;

(b) on the application of a person who has reasonable grounds for believing that another person is intending to remove the child from the applicant’s care and possession in breach of section 51, by order direct that other person not to remove the child from the applicant’s care and possession in breach of that section.

Custody order on application for adoption in Scotland

53

Jurisdiction of Scottish courts in certain applications for custody

54

Interpretation and extent of sections 47 to 55

55

(1) In sections 50 to 53“child” means a person under the age of sixteen and “relative” means a grand-parent, brother, sister, uncle or aunt, whether of the full blood or half blood or by affinity.

(2) Sections 50 to 53 and this section apply to Scotland only and shall be construed in accordance with section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986.

Part III — Care

Children in care of local authorities

Restriction on removal of child from care

56

(1) In section 1 of the Children Act 1948, the following subsections are inserted after subsection (3)—

(3A) Except in relation to an act done— (a) with the consent of the local authority, or (b) by a parent or guardian of the child who has given the local authority not less than 28 days’ notice of his intention to do it, subsection (8) (penalty for taking away a child in care) of section 3 of this Act shall apply to a child in the care of a local authority under this section (notwithstanding that no resolution is in force under section 2 of this Act with respect to the child) if he has been in the care of that local authority throughout the preceding six months; and for the purposes of the application of paragraph (b) of that subsection in such a case a parent or guardian of the child shall not be taken to have lawful authority to take him away. (3B) The Secretary of State may by order a draft of which has been approved by each House of Parliament amend subsection (3A) of this section by substituting a different period for the period of 28 days or of six months mentioned in that subsection (or the period which, by a previous order under this subsection, was substituted for that period).

(2) The following section is inserted after section 33 of the Children Act 1948—

(33A) (1) Section 3(8) of this Act shall apply in relation to children who are not in the care of local authorities under section 1 of this Act but who are in voluntary homes or are boarded out, as it applies by virtue of subsection (3A) of the said section 1 to children in the care of the local authority, except that in the case of a child who is not in the care of a local authority the references in subsection (3A) to a local authority shall be construed as references to the voluntary organisation in whose care the child is. (2) For the purposes of this section— (a) a child is boarded out if he is boarded out, by the voluntary organisation in whose care he is, with foster parents to live in their home as a member of their family; (b) “voluntary home” includes a controlled community home and an assisted community home.

Substitution of s. 2 of Children Act 1948

57

The following section is substituted for section 2 of the Children Act 1948.

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Children Act 1975

Part I

The Adoption Services

Establishment of Adoption Services

1

Local authorities' social services

2

Duty to promote welfare of child

3

Approval of adoption societies

4

Withdrawal of approval

5

Procedure on refusal to approve, or withdrawal of approval from, societies

6

Inactive or defunct adoption societies

7

Adoption orders

Adoption orders

8

Child to live with adopters before order made

9

Adoption by married couple

10

Adoption by one person

11

Parental agreement

12

Religious upbringing of adopted child

13

Freeing child for adoption

14

Progress reports to former parent

15

Revocation of section 14 order

16

Care etc. of child on refusal of adoption order

17

Need to notify local authority of adoption application

18

Interim orders

19

Guardian ad litem and reporting officer

20

Hearings of applications etc. in private

21

Making of order

22

Transfer of parental rights and duties between adoption agencies

23

Convention adoption orders

24

Adoption of children abroad

25

Amendments of Adoption Act 1958

Obtaining of birth certificate by adopted person

26

Counselling in Scotland for adopted person seeking information about his birth

27

Restriction on arranging adoption and placing of children

28

Restrictions on removal of child pending adoption

29

Return of child taken away in breach of section 34 or 34A of 1958 Act

30

Return of child on refusal of adoption order

31

Payment of allowances to adopters

32

Part II — Custody

Custodianship orders

Custodianship orders

33

Access and maintenance

34

Revocation and variation of orders

35

Care etc. of child on revocation of custodianship order

36

Custodianship order on application for adoption or guardianship