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legal issues in the adoption of a non-British child

Last post 04-23-2008 7:54 AM by june. 14 replies.
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  • 04-03-2008 7:56 PM

    • june
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    legal issues in the adoption of a non-British child

    I was wondering if anyone had any views on the following situation regarding the legal issues.

    A child of an asylum seeker is in foster care on a full care order. The care plan for this child is adoption and the courts have granted a placement order. The child was born in Britain but is not a British citizen and holds citizenship in her mothers home country. Would this adoption need to take place in an international court under international law or would it take place in a British court under British law?

  • 04-03-2008 10:16 PM In reply to

    Re: legal issues in the adoption of a non-British child

    If you are a local authority social worker this should be referred to your legal department.

    As the child was born here s/he probably has dual citizenship.

  • 04-05-2008 12:57 PM In reply to

    • Wilt
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    • Salop

    Re: legal issues in the adoption of a non-British child

    June

     

    Why not ask something complicated:Wink   I am not sure that they would be recognised as having dual citizenship. Many years ago I was involved in a case matter not that different (the young person was from Ethiopia) and although under the old legislation it was dealt with as a domestic UK adoption within a County Court. The same applies to young people who travel here say on an education visa but then become subject to an adoption application by a relative who is a UK citizen.

    Sometimes, the applications are motivated (sometimes for concern for a child's welfare) as a way around the immigration rules, but the latest legislation has put in measures to mitigate against that loophole. 

     

    Wilt 

  • 04-07-2008 10:09 PM In reply to

    Re: legal issues in the adoption of a non-British child

    I think seeking legal advice from the right source would be the key. Simply because there is a legal department does not mean that there is expertise there to deal with the issues raised. There are, from my reading of the situation, two issues: one of them is about citizenship and the other, which may well flow from this, is the question of the legality of the adoption.

    With regards to citizenship the issue is much simpler. Since 1983 children born in the UK or in the airpace of the UK cannot automatically become UK citizens or subjects. In addition to this there have been a raft of changes to the immigration legislation and guidelines. If I am not mistaken, a child would have a right to UK citizenship if he/she was born after 2006 and that one or both of the parents was a UK citizen, irrespective of the status of the relationship, i.e. the issue of half or full blood has now forever been resolved. In lay man's terms, a love child now has the same rights as one born within wedlock.

    With regards to which court has jurisdiction in this case, it is very unlikely that an international court would bother to get itself involved. Remember the Human Rights Act 1998? Well, this was enacted to 'give effect' to international human human rights when Tony Blair said he was 'bringing Rights Home'. This makes our British courts a public authority. Accordingly they must interpret the law in ways, as much as possible, that reflect human rights. Failure to do this would give rise to a challenge, which may then be taken up by the European Court of Human Rights.

    The more difficult issue here for me would be defining June's position. Would she be acting as an advocate or would she be acting as a local authority official? In my experience, most local authoties no longer want their employees to act as advocates, as this apparently causes conflict of interest (this is quite strage because during and after my training as a social worker the main employers of social workers have always remained local authorities. Despite this I was taught that one of the roles of a social worker was to advocate on his/her client's behalf).

    Because of the apparent conflict of interest it is unlikely to get any reasonable advice from the local authority's own solicitors. Only an independent solicitor would do. I would therefore start with the Immigration Advisory Services (IAS), who may point June in the right direction. Failing this, the parent in question may also have his/her own solicitors.

  • 04-08-2008 11:28 AM In reply to

    • june
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    • Joined on 04-03-2008

    Re: legal issues in the adoption of a non-British child

    With regards to citizenship I have been told that the child is not considered to be British, although she was born here neither parent has British citizenship, which like Hallam says means she is not considered British. She holds a passport from her parents country, I have been told once she turns five she can apply for British citizenship.

    With reagrds to the adoption I was told by the local authority's solicitors that the adoption would take place in British courts as per all other adoptions. I become concerned when I was on a training course on asylum seekers and their children and the person running the course mentioned something which contradicted the advice of the LA's solicitor. I talked further with the person running the course who told be that for the adoption to be legally viable it would have to be done in an international court under international law. When I expressed these concerns to the LA's legal team I was basically told to keep my nose out of legal issues. 

     Thanks for the advice everyone, I think I will now start with the IAS and see if they can clarify the situation.  

  • 04-16-2008 12:33 PM In reply to

    Re: legal issues in the adoption of a non-British child

    june:

     

    A child of an asylum seeker is in foster care on a full care order.

    is that different to a Care Order then?

    ..i am a big picture person, but some little details trouble me....

  • 04-16-2008 5:56 PM In reply to

    • june
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    • Joined on 04-03-2008

    Re: legal issues in the adoption of a non-British child

    A full Care Order is a long term thing, its the final decision of the Court after hearing lots of reports about the situation a child is in, as opposed to an interim Care Order which is a temporary arrangement.

  • 04-16-2008 10:20 PM In reply to

    Re: legal issues in the adoption of a non-British child

    There is no such thing as a FULL Care Order - the person is either subject to a Care order or not. If the FINAL Order has not been made then they may be subject to an INTERIM Care Order.

  • 04-22-2008 7:48 AM In reply to

    • june
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    • Joined on 04-03-2008

    Re: legal issues in the adoption of a non-British child

     Frequently asked questions (FAQs)

    Children and Families - Question detail

    Question What is a Care Order?
    Answer There are two kinds of Care Order. One is called an Interim Care Order, which is a temporary arrangement, and the other is known as a Full Care Order because it is the final decision of the Court after hearing lots of reports about the situation a child is in. Only a Court can make a Care Order and the effect is to make the Council responsible for looking after the child. Sometimes the child may still live in the family home but the Council has a legal duty to make sure the child is properly looked after. Most children placed on a Care Order live in family style arrangements such as with foster carers. A Care Order usually lasts until age 18 years but can stopped by the Court if they are asked and they agree. If a young person is adopted, the Care Order also stops. A Care Order automatically ends when a Residence Order is made. The Childrens Legal Centre and the Family Rights Group can both offer independent advice and information.


    The above is from the Medway council website, most social workers I know use the term full care order, it can also be seen on the yourrights.org.uk website, dh.gov.uk, cafcass.gov.uk I could go on... 

  • 04-22-2008 8:29 AM In reply to

    Re: legal issues in the adoption of a non-British child

    and Medway is a joke, i wouldnt believe anything they say.....!

     ...go on...pleaes do... i would prefer to see a reference from the misistry of justice or family law review, rather than 'FAQ's' from Medway council website, which were probably put on their by someone in the IT dept.

  • 04-22-2008 3:45 PM In reply to

    • june
    • Top 150 Contributor
    • Joined on 04-03-2008

    Re: legal issues in the adoption of a non-British child

    You only have to google scholar the term to find references from journal articles, is this the first time you have heard this term or do you just not like it?

    Children Starting to be Looked After by Local Authorities in England: An Analysis of Inter-authority … -
    J Dickens, D Howell, J Thoburn, G Schofield - British Journal of Social Work, 2007 - BASW
    ... completed. Of them, 15 (ie 9 per cent of the 161) were now on a full care
    order, with five (3 per cent) on interim care orders. ...

    The Search For Stability and Permanence: Modelling the Pathways of Long-stay Looked After Children -
    G Schofield, J Thoburn, D Howell, J Dickens - British Journal of Social Work, 2007 - BASW
    ... Three children had actually been placed with parents under the terms of an interim
    or full care order before coming back into care and being placed for adoption ...
    Cited by 2 - Related Articles - Web Search - BL Direct

    Understanding help seeking behaviour among male offenders: qualitative interview study -
    A Howerton, R Byng, J Campbell, D Hess, C Owens, P … - BMJ: British Medical Journal, 2007 - pubmedcentral.nih.gov
    ... tearaways and she couldn't cope with us. My sisters were adopted, I was just
    put on a full care order. I was in children's homes, I was ...
    Cited by 6 - Related Articles - Web Search - BL Direct

    Child Care Law
    B Mitchels - ABC of Child Protection, 2007 - books.google.com
    ... 1 Police i• HUse of police powers Emergency protection order 1 Interim care order
    1 Full care order scharge when Id is no longer in need of a care order 1 ...
    Cited by 1 - Related Articles - Web Search

    Children and adolescents who present with sexually abusive behaviour: A UK descriptive study -
    E Mc CRORY - Journal of Forensic Psychiatry & Psychology, 2007 - informaworld.com
    ... exceed 100% because they are not mutually exclusive.) At the time of referral, 34%
    were subject to either an interim or a full care order, while many of those ...
    Cited by 2 - Related Articles - Web Search - BL Direct

     

  • 04-22-2008 3:51 PM In reply to

    Re: legal issues in the adoption of a non-British child

    ok, i will get down from my pedestal....

    it is probably that I just dont like it. I still dont believe that it is the correct reference for a Care Order, but you have done your homework and I concede that point!

  • 04-22-2008 5:44 PM In reply to

    Re: legal issues in the adoption of a non-British child

    I was wondering where this academic discuss was leading to. I am glad that it has resolved itself. While I believe that there is mileage in semantics, the main issue should really be about the effect of the order. Things keep changing in Law, sometimes, ostensibly to make things easier for the non-law trained person. For instance, the term applicant has now replaced plaintiff as a Lord Chancellor felt that it was too confusing in civil proceedings. It it may well be that 'full care order' is a new vocabulary that has found its way into the various updates of family proceedings. However, is the effect similar or different from the other orders, though?

  • 04-22-2008 9:26 PM In reply to

    Re: legal issues in the adoption of a non-British child

    The CORRECT legal terminology is 'Care Order' - NOT 'Full' Care Order - a Final Order is a Care Order - see Sec. 31 (11) Children Act 1989. The use of 'Final Care Order' seems to have gradually slipped into people vocabularies for reasons that I fail to understand - it is tortology!