Adoption and Law

The Unique Personal Experiences of Birth Mothers in Adoption Proceedings

Lisamarie Deblasio

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000094046
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

Using a socio-legal framework, this book explores the experiences that birth mothers face in state sanctioned adoption proceedings in the UK. Featuring personal, in-depth interviews and conversations with 32 birth mothers, the book highlights perspectives and voices that are seldom the focus in leading discourses of professional practice in this area of law. The book also demands that the statutory rights, support and care of birth mothers are recognised and strengthened.This book delivers a comprehensive insight into many aspects and controversies of legal child adoption, including the development and reform of adoption law over history, giving the reader insight into the deep-rooted political and social tensions around the use of adoption. The uniqueness of birth mothers' subjective stories of adoption contrasts powerfully with the legal theory providing the reader with an intimate paradigm of adoption.The book includes discussion of obiter dicta and authoritative guidance on adoption practice from the Supreme Court and Court of Appeal in Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33 and Re B-S (Children) (Adoption: Leave to Oppose) [2013] EWCA Civ 1146. It also considers Court of Appeal's recent ruling on post adoption contact in Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29, the first case to come before the court since section 9 of the Children and Families Act 2014 amended the Adoption and Children Act 2002, with the new insertion of section 51A and 51B providing for court ordered post adoption contact. This book is ideally suited to undergraduate students, as well as a more multi- disciplinary audience.

1 Adoption law
History, development and reform

It’s winter all the time without my children
Even on a sunny day I can feel them
They make the air cold
Like little ghosts

Kaz, a birth mother

This chapter maps the evolution of adoption from a historical de facto social provision to a modern legal one. This involved the reform of adoption law, from the passing of the first statute, the Adoption of Children Act 1926, to the current legislation, the Adoption and Children Act 2002 (ACA). There were many policy and law changes along the way and although not as major as the reform in the ACA, they still played a significant role in the development of the modern law. The reform was influenced by major social changes, the demand for protection of rights of all those involved in adoption, and the inquiries into the ill treatment of children in the care of the state. A key issue in law reform has been the progression of children’s rights, which have evolved from giving a child to adopters, to giving an adoptive family to a child and the legal principle of paramountcy of the child’s welfare. Examination of the political influences behind the law reform reveal deep-rooted orthodoxy, tensions and controversies that exist just under the surface of adoption. It has always been and continues to be a highly contentious issue, in particular, because the more recent law reform failed to consider the position of birth parents in any meaningful depth. Throughout history adoption has been reactive to many changes in society, such as the demand for rights of adopters to be legally protected, and later to the failings of the state in respect of the protection of children.¹

1 For a helpful detailed account of adoption and influences such as protection for rights of adopters and child abuse in care see Caroline Bridge and Heather Swindells, Adoption: The Modern Law (Jordan Publishing 2003) 1–27.

The First World War was significant in the advance of legal adoption because of the surge in de facto² adoption concerning war orphans needing homes. This increase in social adoption, which afforded no legal rights or protection to adoptive parents, led to the demand for adoption legislation from newly formed adoption societies.³ In response to public pressure the Hopkinson Committee were assigned by the Government in 1920 to review adoption.⁴ The resulting report recommended that adoption ought to be made legal, in particular to ‘protect the rights of those prospective adopters willing to care for children’.⁵ Following the Hopkinson report there were several failed attempts to create legislation to safeguard the adoption process.⁶

Pressure by adoption agencies in the wake of failed attempts at legislation saw the appointment of the Tomlin Committee in 1924.⁷ The Committee, chaired by Mr Justice Tomlin, reiterated the previous view that there should be legal security for adopters. Despite this, the Committee expressed concerns that legal adoption was seen by many as ‘an evil’ which may ‘encourage or increase the separation of the mother and child’.⁸ This acknowledged that unmarried mothers and their illegitimate babies were ‘the silent figures behind the work of adoption agencies’.⁹ The Committee recommended that legal adoption should be introduced with ‘extreme caution’.¹⁰ The resulting Bill recommended that adoption should be a matter for judicial decision making, with the requirement of informed consent of the natural parent. The Bill was eventually drafted to become the Adoption of Children Act 1926 (the 1926 Act) which heralded the beginning of English adoption law. The Act introduced the process of adoption requiring a court order, which severed all parental legal rights and transferred the rights and duties to another person, the so called ‘legal transplant’. The legal transplant model was considered appropriate for the adoption of babies relinquished by unmarried mothers to married, often infertile, couples. No thought was given to the possibility that the child would ever meet, or even know of its birth family. Bridge observes ‘adoption practice attempted to prevent biological and adoptive parents from knowing each other’s identities, and the law did not require the adopters to tell the child about his biological background’.¹¹ The 1926 Act required ‘competent independent consideration of the child’s welfare’ but it was ‘minimalist in its approach and did not regulate the adoption process’.¹² It became apparent, that a decade after the act was passed, only one third of adoptions¹³ were carried out legally under the act and de facto adoptions were still prevalent.

2 A social provision whereby families took in destitute children. In the absence of legal rights adopters could not prevent the natural parents ‘reclaiming’ the child at any time.

3 For example, the National Children’s Adoption Association established in the early 1920s by Miss Clara Andrews who arranged adoptions for war orphans. Andrews was instrumental in lobbying the government for new legislation.

See Jenny Keating, ‘Struggle for identity: Issues underlying the enactment of the 1926 Adoption of Children Act’ in University of Sussex Journal of Contemporary History (Sept 2001) 3, 2.

4 Ibid. 3.

5 Bridge (n 1) 4.

6 Sanford Katz and others Cross Currents: Family Law and Policy in the US and England (Oxford University Press 2000) 310.

7 Bridge (n 1) 4.

8 Ibid. 5.

9 Keating (n 3) 3.

10 Bridge (n 1) 5.

11 Ibid. 17.

12 Ibid. 6.

13 In 1927 there were 3000 legal adoptions.

The number of legal adoptions rose in 1946. Historians believe this was pertinent to the legalising of de facto adoptions due to the increase in orphans from the Second World War.¹⁴ Following the Second World War there was a rise in illegitimacy. Adoption began to be seen as a convenient solution to this social problem, where puritan views of sexual morality were proselytised by the church. The church was commonly involved in the running of unmarried mother’s homes, and the adoptions that subsequently took place after young women had been sent there to give birth.¹⁵ During the 1950s there were record numbers of complaints against the church for arranging ‘private adoptions’.¹⁶ The stigma of having an illegitimate¹⁷ child coupled with hardship and poverty forced many thousands of single women to give up their babies in this way.¹⁸ These adoptions continued to be carried out under the ‘secrecy model’. The child’s birth origins were hidden. The law created a myth or ‘legal fiction’ that the child had been born to the adopters and the natural mother’s existence was denied. The trend for baby adoptions became entrenched in adoption practice, by 1951 they amounted to 52 per cent of all adoptions. In 1968 this number rose to 76 per cent of all adoptions with 91 per cent of adoptions being of illegitimate babies.¹⁹ In 1939 the law was amended to provide a basic adoption service.²⁰ These services were expanded with the passing of the Adoption of Children Act 1949.²¹ The 1949 Act maintained the secrecy of the previous law. A birth mother could provide consent without any knowledge of the adopter’s identiti...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Table of cases
• Table of legislation
• Table of statutory instruments
• Table of European/UN material
• Preface: about the author
• Introduction
• 1 Adoption law: history, development and reform
• 2 The Adoption and Children Act 2002: key principles
• 3 The story of birth mothers
• 4 The research methodology: building trust with birth mothers
• 5 Introduction to the findings: the social experiences of birth mothers
• 6 The experiences of birth mothers and the law: before the adoption order
• 7 The experiences of birth mothers and the law: after the adoption order
• 8 The current law and policy on adoption: what does the future hold for birth mothers?
• 9 Redress for operational failures and poor practice in the adoption process
• Appendix
• Index