At the beginning of the twentieth century, the term ‘adoption’ in relation to children was used in three different senses. First, it was used to describe the situation in which a child was taken into the home of a person other than the child’s parent, and brought up to a greater or lesser extent as the child of the adopter. Examples of this practice are to be found in fictional classics,1 and there seems no reason to doubt that this kind of ‘adoption’ had been and remained a familiar social institution in all classes of society.2 Secondly, there was the situation in which ‘adoption’ was simulated: an unmarried pregnant woman would arrange for her child to be delivered in a private lying-in house, the owner of which would be paid a lump sum in exchange for arranging the child’s ‘adoption’.3 The child would then be removed to ‘the worst class of baby-farming house’ where it would usually be neglected and die.4 Thirdly, there was the so-called Poor Law Adoption in which the Poor Law Guardians assumed by resolution all the child’s parents’ rights and powers in respect of the child’s upbringing; and would arrange for the child to be ‘adopted’.5
In 1926 the Adoption of Children Act created the institution of legal adoption in this country. For many years thereafter adoption under the Act was used primarily in the case of babies (usually illegitimate) placed with childless families (p.597) who would thenceforth care for the child as if it had been born to the husband and wife; and in 1949 the Adoption Act accepted the principle that the law should treat the adopted child as legally the child of the adoptive parents. Adoption became very popular: in 1968 the number of adoption orders made rose to a peak of 24,831.6
The Children Act 1948 imposed extensive duties on local authorities to care for children, and local authorities had power in certain circumstances to assume parental rights over children in their care. This did not constitute legal adoption; but it began to be realised that adoption could be an effective long term solution for the child otherwise likely to remain in a children’s home or in some other form of local authority care. Adoption also came to be used in a way certainly not foreseen in 1926: step-parents and relatives increasingly had recourse to adoption as a technique to make them in law the parents of the child who was in fact living in their household.
The last quarter of the century was a period of dramatic change in the perception of adoption. The ready availability of contraception and legal abortion meant that very few healthy babies, born in this country, were available for adoption. Adoption accordingly ceased to be primarily concerned with babies: whereas in 1968 half the children adopted were less than a year old, by the end of the century the proportion had fallen to 4%.7 And although step-parents continued to use adoption to make the legal family congruent with the social family and a significant number of babies were brought to the country from overseas to be adopted here, adoption became much more concerned with the provision of long-term care for children who had been in local authority care. In 1975, the Children Act marked the shift in emphasis; and at the end of the twentieth century about half of all adoptions were of children who had been in local authority care. Government policy focussed on increasing the use of adoption for children in care in a determined attempt to reduce the number of children cared for in institutions or by (possibly short-term) foster parents; and in February 2000 Prime Minister Blair personally headed a review to ensure the best use of adoption to meet the needs of children in care.8
The reader may well find these changes of emphasis difficult to understand; and it has to be admitted that there has traditionally been some difference between lawyers and lay people about the essence of adoption. For the lawyer, it is concerned above all with the legal rights of the birth and adoptive parents on the one hand and the adopted child on the other. Because the legal effect of adoption—in effect, an irrevocable transfer of a child from one family to another—is so dramatic lawyers have tended to regard it as a process necessarily different in(p.598) kind from other legal processes for dealing with the care of children. Social workers tend to be less impressed by these legal matters.
The Adoption of Children Act 1926
‘Adoption’ in the sense of providing a home for a child who would be cared for as a member of the adopters’ family certainly existed as a social institution at the beginning of the century, but the law made no provision for it. Whatever the facts of the relationship between adoptive parent and adopted child they remained legally strangers, and in particular there was no effective machinery9 to prevent the natural parents exercising the common law right to remove the child—sometimes when the child became capable of earning a wage. Children’s societies arranging adoption might make the parties sign formal agreements in an attempt to regulate the relationship,10 but these agreements were legally ineffective.11
(p.599) Pressure for legal adoption
The War of 1914–1918 encouraged the activities of organisations aiming to ‘place’ children with adopters and also prompted the growth of pressure groups concerned to secure legislation.12 (In fact13 it seems doubtful whether the War had resulted in any significant increase in recourse to ‘adoption’.) In 1920 the Coalition Government yielded to these expressions of demand and appointed a committee chaired by Sir Alfred Hopkinson KC14 to consider the desirability of making legal provision for the adoption of children and, if so, the form which such legislation should take.
The two Committees
The Hopkinson Committee found that the adoption of children was legally recognised in ‘almost all civilised states’;15 and believed that it would be better for children who could not be cared for by their birth parents to be placed in some other home as members of a family ‘under the care of a suitable and (p.600) responsible person’ than to be ‘gathered together in an institution with a number of others’.16 But the Committee accepted the warnings of the NSPCC that adoption could easily become a cover for child trafficking. It claimed that the ‘practice of adoption without definite legal sanction [had] already been accompanied in many cases by serious evils’ and that if it became more frequent those evils might, in the absence of proper safeguards, become more serious.17 But the Committee believed that, in the absence of appropriate legal machinery, adoption would still take place18 ‘under agreements entered into sometimes unwisely and without due premeditation’;19 and that the absence of proper control over the ‘adoption’ of children led inevitably to a situation in which children could be kept in institutions neither inspected nor controlled and that children might be ‘handed from one person to another with or without payment, advertised for disposal, and even sent out of the country without any record being kept’.20 Legislation should therefore provide the means for eliminating bad homes and agencies using ‘unsatisfactory methods’ in undertaking or furthering the ‘adoption’ of children;21 and the Hopkinson Committee recommended that binding legal effect should be given to agreements for the adoption of children, provided that—in order to protect the welfare of the child concerned—the ‘sanction of some responsible judicial or other public authority’ were given to the adoption.22
The Hopkinson Committee’s Report was not well received within the Home Office23 or the Lord Chancellor’s Office.24 But that did not make it any easier to (p.601) resist demands from inside Parliament and outside for something to be done. In 1922 a private member introduced what a Home Office official described as a ‘delightfully simple’ Bill which would have empowered parents to transfer, with the approval of the court, their rights and duties over a child under seven to a named individual. The Home Office concluded that it would be ‘disastrous’ to allow the enactment of a Bill which ‘ignores all the difficulties’,25 and the Government declined to give facilities for that or other Bills.26
But something had to be done to deal with the pressures on ministers and MPs; and in 1924 Arthur Henderson (Home Secretary in the 1924 Labour Administration) appointed a Committee chaired by Tomlin J27 (a Chancery Division judge who enjoyed the confidence of the Lord Chancellor’s Permanent Secretary)28 ‘to examine the problem of child adoption from the point of view of possible legislation and to report upon the main provisions’ to be included in any Bill. In fact the Tomlin Committee was less than enthusiastic about the need for legislation: it doubted whether people who wanted to ‘adopt’ children had in practice been deterred from doing so by the absence of any recognition by the law of the status of adoption; and it believed that in reality the number of people ‘wishing to get rid of children are far more numerous than those wishing to receive them’ and that ‘the activities in recent years of societies arranging systematically for the adoption of children would appear to have given to adoption a prominence which is somewhat artificial and may not be in all respects wholesome’.29 But, albeit somewhat grudgingly, the Committee did accept that people who cared for children as if they were their own ought to be able to have some legal security for the relationship; and the Committee took the unusual course of drafting the Bill which (with remarkably few amendments)30 became the Adoption of Children Act 1926. This governed the substantive31 law of adoption until 1949.
(p.602) For the Tomlin Committee, the underlying principle was that it should be possible, under proper safeguards, for a person irrevocably32 to transfer parental rights and duties to another.33 The transaction was essentially contractual and dependent on the informed consent of the birth parents and the adopters; but the Committee recommended that judicial sanction should be required. This was to meet the Committee’s concern to provide an effective safeguard against the possibility that social and economic pressures might compel a mother to ‘make a surrender of her child final in character though she may herself, if a free agent, desire nothing more than a temporary provision for it’.34 It is true that the Court was to have to have power to dispense with a parent’s consent35 (for example, if the parent could not be found) but that power was only to be exercised in the most exceptional circumstances.36
Once the court had been satisfied the parent’s consent37 was indeed real and informed38 the court would be guided by the criterion that an adoption order (p.603) should only be made if that would promote the child’s welfare.39 To achieve this, there would have to be a ‘competent independent consideration of the matter from the point of view of the welfare of the child’40 and this was to be achieved by requiring the appointment in every case of a guardian ad litem charged with the duty of protecting the interests of the child.41
Effect of adoption
What should be the effect of the transfer from birth to adoptive parent? The Tomlin Committee had no difficulty in recommending that adoption should effectively transfer the right to what can perhaps be described as the guardianship of the child to the adopters, and the 1926 Act provided for such a transfer in resounding language.42 But the Committee43 adopted a cautious (p.604) approach44 to the question of an adopted child’s succession rights and to the effect of an adoption order on the prohibited degrees of marriage: an adoption order under the 1926 Act45 left the adopted child’s position in respect of these two matters unchanged.
Secrecy or informed consent?
The 1926 Act did not satisfy many of those professionally involved in arranging adoptions. In particular, the adoption societies tended to attach great importance to ‘secrecy’, meaning (as the Tomlin Committee put it)46‘not merely that the transaction itself should not be a matter of common notoriety but that the parties themselves should not become known to each other, that is to say, that the natural parent should not know where the child goes …’. The Committee47 brushed these concerns aside; and when the Lord Chancellor’s officials came to draft Rules they assumed that the court would, in order to satisfy itself that the birth parents’ consent to the adoption was real and informed, need to see the (p.605) birth parent and equally that the birth parent should know what was to happen to his or her child.48 Would not a mother proposing to hand over her child to a stranger wish to be satisfied about the character and personality of the adopters? Would she not wish to know something about the home in which her child was to be brought up? For these reasons the Adoption Rules49 provided that not only the name but also the address of the adoptive parents should be inserted on the form prescribed for the giving of parental consent.
This all no doubt seemed eminently reasonable to the officials in the House of Lords,50 but many prospective adopters were concerned that a mother who found out where they lived might interfere in the child’s upbringing or even blackmail them;51 and apparently because of this some adopters52 simply ignored the procedures laid down in the 1926 Act. They would simply take over the care of a child placed with them by an adoption society and rely on the society to keep the child’s whereabouts and assumed identity secret.
It is certainly true that a significant number of de facto ‘adoptions’53 remained unsanctioned by the formality of an adoption order: ten years after the coming into force of the 1926 Act only a third of the ‘adoptions’ organised by one of the three largest Adoption Agencies in the country had been given legal sanction under the 1926 Act.54
The significance of the Adoption of Children Act 1926
The real significance of the Adoption of Children Act 1926 is that it made ‘adoption’ of children a legally recognised and sanctioned institution, providing for the permanent and irrevocable transfer of parentage.55 It may be that in (p.606) strictness the 1926 Act did little more than provide machinery for the registration (under minimal safeguards supervised by the court) and recognition of a private civil contract.56 The Act reflected a certain ambivalence about quite what was involved in the transfer of parentage;57 and it is also true that the Act failed to provide machinery to meet the legitimate demands of many of those wishing to bring up a child in secure membership of their own family. But the 1926 Act laid the foundation upon which progress could be made; and its significance in the development of English family law cannot be questioned. Over the years ahead, adoption was to evolve from being essentially a private transaction dependent on contractual principle into a process, largely administered by State welfare agencies,58 from which contractual elements almost disappeared.
The Adoption of Children (Regulation) Act 1939: State regulation of adoption
The 1926 Act itself left adoption almost entirely uncontrolled by the State; and—as we have seen—the requirement that a court look into applications for adoption orders in an attempt to ensure that the making of an order would be beneficial for the child could be evaded by taking possession of a child placed for adoption, concealing its whereabouts, and refraining from applying for the de facto adoption to be legalised. The fact that the adoption process was so little regulated meant that newspaper advertisements (at best tasteless)59 could freely offer children for adoption; and there were suggestions that adoption agencies took inadequate precautions in deciding whether to place children60 (often the children of unmarried mothers whose chief anxiety might be to get rid of the child);61 there were fears that British children were being exported to countries(p.607) whose laws did not provide for adoption;62 and that money changed hands.63
The Home Office, with its overall responsibility for child protection, became concerned; and in the autumn of 1935 an ‘influentially composed deputation’64 of persons concerned with the welfare of children convinced the Home Secretary65 of the need for an investigation into the ‘evils associated with unlicensed, unregulated and unsupervised adoption’.66 A Committee chaired by Miss Florence Horsburgh MP67 was appointed68 to inquire into the methods pursued by adoption societies or other agencies engaged in arranging for the adoption of children; and to report whether measures should be taken to supervise or control their activities. The Committee’s Report,69 published in 1937, led to the enactment of the Adoption of Children (Regulation) Act 1939.
The Horsburgh Committee reported a large growth in the number of adoption societies: it believed that more than 1,200 children each year were placed with adopters by bodies describing themselves as such.70 Some societies arranged large numbers of adoptions71 but many organisations (for example the Salvation Army) did so only occasionally, whilst a significant number of (p.608) adoptions were arranged (from various motives) by private individuals. A few local authorities (notably the London County Council) made a regular practice of arranging adoptions, whilst many public officials brought prospective adopters into touch with children as a ‘friendly service’.72
The Committee accepted that generally adoption societies and other adoption agencies were performing a useful function but it found many instances of unsatisfactory practice; and it therefore recommended that no organisation should be allowed to make any arrangements for the adoption of a child unless it was registered with the local authority.73 The Committee recommended that the conditions on which licences were to be granted should be prescribed by the Secretary of State; and the Act gave the Secretary of State wide powers to make regulations governing placement procedures and other matters.74
The Committee was especially critical of the practice of avoiding the requirement that the court approve adoptions and relying simply on the fact that the adopter had the child and the birth parent would not be able to trace him or her. It recommended that prospective adopters should be required75 to make an application to the court for an adoption order within a specified time from the placement of the child by an agency.76
Although in these ways State control over adoption was increased, the Committee did not recommend that private individuals should be prohibited from arranging adoptions. The Committee did recommend, and the 1939 Act provided, for local authority supervision of children under the age of nine77 who were ‘placed’ otherwise than by adoption agencies. It also recommended control of payments in connection with adoption, advertising, and adoption abroad.
In these respects, the Adoption of Children (Regulation) Act 193978 is an important landmark in the move towards State control of the adoption (p.609) process.79 But the approach remained cautious.80 State regulation was increased, but adoption remained essentially the private contract between individuals, ratified by a court, which had been recognised in 1926. True, adoption societies had to be registered with the local authority but few local authorities were directly concerned in themselves arranging adoption. But the way ahead is perhaps apparent from the prominence which the Committee gave to the ‘admirable’ procedures of the London County Council:81 there was ‘much that adoption societies and other adoption agencies might learn’ from the Council’s methods. The 1939 Act was essentially conservative in its approach but ten years later the Adoption Act 1949 decisively changed the concept of legal adoption.
The Adoption of Children Act 1949
In 1939 the courts made 7,926 adoption orders; in 1946, the first year after the end of World War II, they made 23,564.82 Of the children adopted, the majority were illegitimate.83 In 1946, the Care of Children Committeeconcluded84 that a successful adoption was ‘the most completely satisfactory method of providing a substitute home’ giving the child new parents with all the parents’ rights and responsibilities who would, so far as human nature allowed, take the place of the ‘real parents’. And it seemed that there was a strong demand for adoption: there were many more would-be adopters than suitable children available.85
But how best to ensure that an adoption was ‘satisfactory’? The Curtis Report noted that, at the time, adoption was still usually a matter of private (p.610) arrangement: less than a quarter of adoptions in 1944 were arranged by an adoption society and thereby subject to the protective measures introduced by the Adoption of Children (Regulation) Act 1939. The Curtis Report thought it highly unsatisfactory that there should be no public supervision or investigation in a private placement unless and until an application was made to the court, and urged the need for ‘rigorous investigation’ if failures were to be avoided.86 The Committee believed that the interests of the child required (firstly) that there should be a probationary period in all cases to ‘enable the adopters to test their own inclinations and make certain they can really give a parent’s care and affection to the child’; (secondly) some degree of public supervision during that period; and (thirdly) some provision for compelling the removal of the child from a home which proved unsatisfactory, whether during the probationary period or after refusal of an adoption order.87
At the same period, lawyers were analysing some of the legal issues which experience had highlighted. The first area of concern stemmed from the policy underlying the 1926 Act that the mother’s informed consent should be the crucial part of the adoption process. In 1926 it was thought this necessarily entailed allowing the mother to know who was to adopt her child and the Act required her to give a specific consent to adoption by a named adopter.88 But over the years those concerned with adoption practice increasingly urged that the adoptive parents should be allowed to conceal their identity from the child’s mother; and if this was permitted why should the law not allow a mother simply to agree to any adoption which the court approved? And should a mother who had once given her consent to adoption be allowed subsequently to withdraw it, almost inevitably causing great distress to the prospective adopters?
Another area of concern was how far the court should be able to override a parental refusal to agree to adoption.The Adoption of Children Act 1926 had indeed given the court power to dispense with parental consent; but the courts had interpreted the dispensing power narrowly89 and were reluctant to make an order except in cases where the child had been abandoned or the parent was mentally incapable. Then in 1947 the Divisional Court unexpectedly held90 that (p.611) the court’s discretion was unfettered: the Court should simply apply the words of the Act and dispense with consent if in all the circumstances it considered it appropriate to do so. There were some91 who thought that to give such a power to a court (or to anyone else) was to go much too far.
Finally, the effect of an adoption order was a controversial matter. Under the 1926 Act adoption did irrevocably vest the right to the child’s custody in the adoptive parent, but it did not effect a transfer of the child from birth to adoptive parent for the purposes of succession to property or for certain other purposes. For some this, comparatively restrictive, approach was unsatisfactory: the aim of adoption should be to create a legal link between the child and the adoptive parents which approximated as closely as possible to the relationship between a child and his birth parent.92
These matters had been considered by a Committee set up by the National Council of Social Service and chaired by Judge Gamon;93 and the Home Office believed that legislation was necessary.94 In 1949 Basil Neild95 agreed to sponsor a Bill drafted by Parliamentary Counsel;96 and the Government throughout gave support. But the Bill’s passage through Parliament was not easy. For the first (and last) time legislation dealing with adoption was brought forward without any prior consideration by an official Committee. Policy on a number of important issues had not been settled, and in this fluid situation the debates in Parliament (and behind the scenes) resulted in significant developments.
The end of the requirement for ‘informed consent’?
The 1949 Act significantly changed the rules about the requirement of parental97 consent to adoption. The policy remained that the mother’s consent should be free and informed. This was to be achieved by stipulating that, to be effective, the consent could not be given until the child was six weeks old, and that the consent be given in writing witnessed by a JP.98 It was no longer to be possible for a mother to give a consent before the child’s birth, and the mother was to have time to consider ‘soberly and objectively’ whether she really wished to give (p.612) up her child for ever.99 But the Act completely rejected the notion, implicit in the 1926 Act, that a mother could not reasonably consent to adoption unless she knew the identity of the adopter. It is true that the House of Lords rejected a provision contained in the Bill as introduced which would have allowed consent to be given to adoption in general terms (a provision favoured by some not least because a general consent would make it easier to ensure that the mother never discovered the identity of the adopters)100 and that the Act continued to require that the mother consent to a specific adoption. But the Act allowed the identity of the adopters to be concealed behind a serial number;101 and specifically provided that consent could be given notwithstanding the fact that the person concerned did not know the prospective adopter’s identity.102 The widespread use of serial number applications effectively destroyed the mother’s right to know the identity of those who were to assume her role as a parent.
Preserving the mother’s right to change her mind?
Issues of consent lay behind the debates on a seemingly uncontroversial provision in the Bill (giving effect to theCurtis Report’s insistence that there be a probationary period to test the relationship between prospective adopters and the child)103 which would require a prospective adopter to give the welfare authority three months’ notice of his intention to apply for an adoption (p.613) order.104 Such a provision sounds eminently reasonable, but in fact it precipitated the most serious threat to the Bill. The problem was that anything which increased the time which had to elapse before the court made the adoption order inevitably gave the mother more time to change her mind. A forceful pressure group led by the Labour playwright MP Benn Levy105introduced amendments intended to make the mother’s consent irrevocable after a specified period of time thus depriving her of any right to recover her child—even if the court had made no order and even if no one had applied for an adoption order. The Government106 set itself against such a provision107 and agreed to take the Bill over if necessary, putting the whips on to ensure that the Bill reached the statute book. At a desperately late stage, provisions were inserted into the Bill reflecting a—not altogether successful108—attempt to meet the Levy group’s concerns.109
Dispensing with consent
The Act reformulated the grounds upon which the court could dispense with consent: henceforth the court could dispense with any requisite consent on the ground that the person concerned could not be found, was incapable of giving a (p.614) consent, or that the ‘consent is unreasonably withheld’.110 The Act preserved the principle that the mother remained free to withdraw her consent at any time before the court had actually made the adoption order111 but the extent to which a change of mind could be the basis for a successful application to dispense with the mother’s consent remained a matter on which the courts would experience difficulty.112
Effect of adoption
By 1949 opinion had moved strongly towards accepting the principle that, once an adoption order was made, the adoptive child should pass for all purposes into the family of the adoptive parents.113 There was (astonishing though it may seem to the twenty-first century reader) no problem in drafting, or getting parliamentary approval, to a clause114 effectively conferring United Kingdom citizenship on a child adopted by a citizen. The question of the effect of adoption on the prohibited degrees was more difficult: it was decided that the law should prohibit marriages between the adopted child and the adoptive parent,115 but (for pragmatic reasons)116 the logical step of also prohibiting marriage between the adopted child and his adoptive sister (or brother) was not taken.117 But it was succession rights which were in practice seen as the most important and here the formidable complexities of the law deterred Nield from including any (p.615) provision in the Bill he introduced. Although the Lord Chancellor’s officials had started from the position that the Bill would provide a useful opportunity to rationalise the law, and there was strong pressure in the House of Commons for recognising the adopted child as a child for all the purposes of property entitlement, the draftsman found his task extremely difficult. Judges consulted on the policy to be adopted expressed strong and not altogether consistent views. In the end, the difficulty experienced in drafting attempted compromise solutions118 was one of the factors which led to acceptance of the principle119 (stated in terms in the Adoption of Children Act 1949)120 that ‘adopted persons should be treated as children of the adopters for the purposes of the devolution or disposal of real and personal property’; but this principle was not to apply to dispositions of property made before the date of the adoption order.121
The Hurst Committee and the 1958 adoption legislation122
The 1949 Adoption Act, which did not have the recommendations of any official committee as a guide, introduced reforms of substance evidencing a considerable shift in the policy of the law insofar as the mother’s agreement and the effects of making an order were concerned. In contrast, the Children Act 1958 was preceded by an 88-page Report123 (with 48 recommendations) from a Departmental Committee chaired by Sir Gerald Hurst QC124 (a recently retired county court judge) yet the reforms of adoption law effected by the 1958 Act125were comparatively modest in scope and the Act can best be seen as mildly evolutionary in its approach. It is also notable that while the two Houses of (p.616) Parliament were the forum in which the terms of the 1949 Act were principally settled, the 1958 Act followed lengthy formal consultation with major interest groups126 on the basis of impressively weighty documentation and many issues were effectively settled at that preliminary stage.127
The Hurst Report seems to have accepted that adoption should be seen primarily as an issue of social work, with the child’s legal status changing as a consequence of a satisfactory placement. The Committee’s recommendation128 that local authorities should be specifically empowered to arrange adoptions for any child (irrespective of whether the child was in its care) can be seen as a significant step on the way towards local authorities assuming responsibility for the provision of a comprehensive adoption service.129 But the Committee emphasised the value of the work done by voluntary agencies:130 it was distinctly cool in its response to suggestions that agencies should not be allowed to employ ‘untrained’ adoption workers131 and the Committee refused to fetter agencies’ discretion in relation to such matters as carrying out of visits. Significantly, the Committee believed that to impose such restrictions on the activities of adoption societies would ‘be to close down a number, perhaps a considerable number, of societies’.132
‘This is the crucial stage in the process of adoption since, once the child has been placed, much harm and unhappiness may result if a change has to be made’134 ‘… The initial placing … is even more important than the later investigation …’135
—and the Committee noted the risks inherent in ‘direct’ adoption placements (ie where the mother gave her child to a friend, fellow-worker, or even a landlady) and in ‘third party’ adoptions (ie where the mother placed her child with prospective adopters through the agency of a private individual—perhaps a doctor136 or other person concerned primarily to help either the mother or the prospective adopters).137 The Committee had received a volume of evidence ‘from many different quarters’ urging that only skilled workers be allowed to arrange adoptions138 and accepted that adoptions ‘arranged by persons of special experience and training’ were much more likely to succeed139 than others; and it noted cases in which a mother had been ‘induced to part with her child to people … grossly unsuitable to care for him’.140 In these circumstances the Committee’s conclusion that it would be neither wise nor practicable to prohibit either direct or third party placements141 seems rather surprising.142 But the Committee’s insistence on the importance of satisfactory placement did lead it to propose an extension to the three months’ probationary period: the child should have his home with the adopters for two months before they were eligible to apply for an adoption order (thereby starting the probationary period running) and no period before the child was six weeks old should count towards the probationary period.143The Act gave effect to the second, but not to the first, of these recommendations.144 The Committee also proposed a number of (p.618) changes intended to increase and make effective the procedures for preventing a child being kept in unsatisfactory conditions.145
The Hurst Committee gave extensive consideration to the circumstances in which adoption orders could be made where there was a prospect of the child having his home abroad. There were particular difficulties with prospective adopters who, though domiciled in this country were resident abroad (for example, whilst serving in the Colonial Service) and with others who, though resident in this country for two or three years, were not domiciled here. (Coloured American servicemen who had ‘befriended and wished to adopt … coloured British children … for whom there was little prospect of adoption in this country’ were identified by the Home Office as a deserving group.146) The Act allowed non-resident English domiciliaries to adopt provided they were here long enough to meet the three-month probationary placement requirement147 whilst foreign domiciliaries would (again, subject to the same probationary requirement) be allowed to take a child abroad under the authority of what it was eventually decided to call a ‘provisional adoption order’.148 The Act also did away with the requirement that an adopter be 21 years older than the child, accepting the Hurst Committee’s view that the courts could be trusted not to make adoption orders where the relative ages of the parties would make this inappropriate.149
There was no dispute that adoption should normally be dependent on parental150 agreement, and the Hurst Committee saw the protection of the natural parents from ‘hurried or panic’ decisions as one of the functions of adoption law. But equally it was clear that the court should have power to dispense (p.619) with parental consent in some circumstances. The Hurst Committee thought151 that the provision empowering the court to dispense with consent on the ground that the consent was being unreasonably withheld had been expected to lead the courts to give greater weight to the child’s welfare152 but case law153 falsified this expectation: the courts asked whether the parent was being unreasonable as a parent and not primarily whether the child’s welfare was likely to be better promoted by adoption rather than by refusal ‘with its consequence that the child either reverts to the care of the parent who may merely place him in an institution, or that he remains in the de facto adoptive home without the security of legal adoption’.154 The Committee rejected suggestions that the child’s welfare be made the first and paramount consideration in deciding the issue of dispensation;155 yet it wanted to allow adoption orders to be made in cases in which the parent had made no attempt to discharge the responsibilities of a parent.156 It therefore recommended the addition of a specific provision which would in terms allow the court to dispense with parental consent in such cases, but it declined to remove ‘unreasonable withholding’. Eventually the Government agreed that the court should have power to dispense with parental agreement if the parent or guardian had ‘persistently failed without reasonable cause to discharge the obligations of a parent or guardian’157 but it declined to remove ‘unreasonable withholding’ from the list of grounds.158
(p.620) The Hurst Committee had no doubt that an adoption order once made should be irrevocable. True, there were unfortunate cases in which people whose ‘adopted child had developed a serious mental or physical defect were anxious to have the adoption order revoked’.159 But adopters assume the responsibilities of natural parents and must not expect to be able to give the child back at will ‘any more than they could relieve themselves of their responsibilities if the child had been born to them’.160 Of course, the prospective adopters should know before filing their application ‘all that can be told them about the physical and mental health of the child for whom they are assuming responsibility’ and they should be warned that a child’s mental and physical development cannot be predicted beyond all doubt. Quite how this was to be achieved was a matter on which opinions differed161—should there be a medical report to the court, and if so who should pay for it, for example?—and in the end much was deliberately left to delegated legislation.162 But in one respect the Hurst Committee again signalled a change in attitude to the purposes which adoption should seek to serve. Some agencies were refusing to place (and some courts refusing to sanction adoption for) children ‘not completely healthy in every way’.163 But the Committee considered164 it
‘wrong to suppose that only the robustly healthy and highly intelligent are suitable for adoption…. It is probably much nearer the truth to say that almost any child is adoptable, or with care can become so…. There should be no discouragement of the adoption of handicapped children, for there are, happily, still people who will accept the extra burdens which a handicapped child may entail, and take an even greater pride and joy in bringing up such a child successfully than others take in rearing a more fortunate child’.
The principle that it was best to allow those concerned to know the facts and take their own decisions in the light of those facts also underlay the Hurst Report’s insistence that the child be told that he had been adopted:
It ‘is still far too common for adopters to try to conceal the fact of adoption, both from the child and from the rest of the community…. We have been told of tragic cases where the child has learned the truth suddenly from strangers with disastrous psychological effects. In some cases children, especially in adolescence, have become mentally unbalanced by the shock …’.165
But (as the Committee recognised) it was not easy to deal with this problem by legislation, and the Committee recommended166 that the Court be required to satisfy itself before making an adoption order that the adopters had told the child (or intended to tell him) about his adoption.167
Far more controversial was the question whether an adopted child should have any right of access to the birth records which might allow him to trace his parents. The Hurst Report seems to have favoured a solution under which the child would be able to apply to the court for a full copy of the adoption order168 which would give him the means of getting information from the Registrar General’s records.169 This, not surprisingly, gave rise to much controversy and disagreement:170 in the end,171 the Act172 gave the High Court and Westminster County Court173 jurisdiction to make orders for disclosure, but in practice this (p.622) power was rarely exercised and the issue was only firmly grasped two decades later.
The Hurst Committee wanted to reinforce the duty of the guardian ad litem—ever since 1926 appointed to safeguard the interests of the child174—to make enquiries and report the facts to the court (of which he was an officer).175 But again, the recommendation that the Act should expressly provide that the guardian be independent176 and suitably qualified and experienced177 were left to delegated legislation.178
The Hurst Report took the position that adoption should be effective to integrate the adopted child into the adoptive family for all legal purposes, and it therefore recommended that an adopted child should qualify as the child of the adoptive parents for the purpose of determining entitlement under wills or settlements. This once again gave rise to difficulties: the draftsman and some of the Lord Chancellor’s officials objected on the grounds that the Hurst proposal did not reflect either public opinion or the intention of the average settlor or testator, while the Chancery judges did not object to a rule that an adoptive parent should be presumed to include the adopted child as one of his children but thought very different considerations applied to dispositions by grandparents or other ancestors and collateral relatives. Eventually the Lord Chancellor agreed to a compromise;179 and the Act180 allowed the child to take as the adopters’ child under a will if the testator died after the date of the adoption order, irrespective of when he had made the will. Quite deliberately, this did not completely equate the position of an adopted child with that of the adopters’ natural born children: it did not affect lifetime settlements, whilst relatives who did not like the idea of an adopted child inheriting their property could (at least if they (p.623) knew about the adoption order) make a fresh will restricting the definition of ‘child’.181