Commentary on Sections Part 1 - Adoption Chapter 1 – Introductory Section 1: Considerations applying to the exercise of powers
Section 1 is an overarching provision that will apply whenever a court or an adoption agency (a Health and Social Care Trust or an appropriate voluntary organisation) is coming to any decision relating to the adoption of a child. This includes any decision by the court about whether or not to dispense with parental consent to adoption, or to make a contact order in respect of a child under section 23 or 49. The Act introduces into adoption law principles already in the Children (Northern Ireland) Order 1995 (the Children Order). The paramount consideration of the court or adoption agency in any decision is the child’s welfare (subsection (2)). This brings the welfare test into line with that in the Children Order, with the important addition that the court or adoption agency must consider the child’s welfare throughout the child’s life, in recognition of the lifelong implications of adoption. The court or adoption agency must also bear in mind that in general any delay is likely to prejudice the child’s welfare (subsection (3)).
A welfare checklist is set out in subsection (4) and must be applied by the court or agency in determining the best interests of the child in any decision relating to adoption. This is modelled on the equivalent provision in the Children Order, but is tailored to address the particular circumstances of adoption. It includes a requirement on the court and adoption agency to consider the value to a child of a stable and harmonious family unit. The court and the adoption agency must have regard to the child’s ascertainable wishes and feelings about the decision (having regard to the child’s age and understanding) and to the child’s particular needs (for example, physical or educational). It also obliges the court or adoption agency to have regard to the relationship the child has with their relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, and the prospects of, and benefits to, the child of this relationship continuing, the ability of the child’s relatives to provide the child with a secure home and to meet the child’s needs, and their views concerning the decision relating to the adoption of the child. ‘Relative’ includes the child’s mother and father – see subsection (8). Subsection (5) provides that in placing a child for adoption, the agency must give due consideration to the child’s religious persuasion, racial origin, cultural and linguistic background. This is in line with the duty placed on an authority by Article 26(3)(c) of the Children Order, when they take any decision about a looked after child, including where they should be placed.
In taking any decision relating to the adoption of a child, the court or adoption agency will have to consider the whole range of powers available to it under this Act and the Children Order and a court may only make an order where it considers that it would be better for the child than making no order (subsection (6)).
“Coming to a decision relating to the adoption of a child”, in relation to a court, is defined at subsection (7) and includes decisions in any proceedings where the orders that might be made by the court include an adoption order or placement order (or the revocation of such an order) or an order under section 23 or 49 (or the revocation or variation of such an order), and 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. It does not include coming to a decision about granting leave in any other circumstances.