323.The relevant legislation is the Adoption Act 1976 (“the Adoption Act”) and the Adoption (Intercountry Aspects ) Act 1999 (not yet in force). By section 1 of the Adoption Act, local authorities are placed under a duty to establish and maintain an adoption service for children who have been or who may be adopted; parents and guardians of such children; and persons who have adopted or who may adopt a child. Local authorities may use approved adoption societies to provide this service. In addition, local authorities are under a duty to ensure that their adoption service is provided in conjunction with other local authority social services and services provided by adoption societies in the area. The services provided by local authorities are known as their “adoption service”. An adoption agency means a local authority or an approved adoption society.
324.Section 3 of the Act deals with the approval of adoption societies by the Secretary of State. In addition to considering the standards, qualifications of staff, financial resources etc of the agency, the Secretary of State must also consider whether the agency will make an effective contribution to the adoption service. This provision is effectively a means of controlling the market. Where the agency will operate extensively in the area of a given local authority, he is required to seek the views of that authority and take them into account when considering the application. Approvals are given for three years, after which time the agency has to go through the full application process again.
325.Approval may be withdrawn if the Secretary of State considers that the agency is no longer making an effective contribution to the Adoption Service (section 4). If the Secretary of State proposes to refuse an application, or withdraw approval, the applicant has the right to make representations but there is no right of appeal against a decision to refuse the application or withdraw approval (section 5).
326.Section 6 of the Adoption Act places a duty on all adoption agencies, that is, both approved adoption societies and local authorities, to safeguard and promote the welfare of the child, and to take his wishes and feelings into account as far as possible. This is similar to the duty placed on local authorities under Part III of the Children Act 1989 in respect of children of need and children who are being looked after by the authority. Section 7 requires the agency to take account of the wishes of the child’s parent or guardian, so far as possible, regarding the religious upbringing of a child placed for adoption.
327.The conduct of all adoption agencies is regulated by the Adoption Agencies Regulations 1983 (S.I. 1983 No 1964) made under section 9 of the Act. These make provision for the approval of adoption societies and for annual reports and other information to be supplied. They provide for the establishment of adoption panels by adoption agencies and for arrangements to be made by agencies in relation to their adoption work. They specify the procedures to be followed before and after a child is placed for adoption. They make provision for confidentiality and preservation of case records and for access to access to case records and disclosure of information. They also make provision in respect of transfer of case records between adoption agencies and progress reports to former parents of children who have been freed for adoption.
328.The Adoption (Intercountry Aspects) Act 1999 makes provision for intercountry adoption generally and in particular for the ratification of the Hague Convention on the Protection of Children and Cooperation in respect of intercountry Adoption 1993. Section 2(2) makes provision for an approved adoption society to act as an accredited body for the purpose of the Convention.
ANNEX 1: Existing Legislation The Adoption Act 1976