Adoption, at the time of the 1955 Act, was transplantation; an uprooting of the child from his or her Birth-parent(s) and a placement of the child under the care of new parents. Severing one relationship to create a new relationship. This transplantation served what was perceived as the relevant interest involved. Generally, Birth-parent(s) unable or unwilling to exercise parental responsibility and (again, generally,) infertile couples who were more than willing to take on the parental responsibility.

As other columnists have observed, circumstances have changed. Amongst them, fertility treatment and social attitudes toward both birth parents and caring relationships. Yet, as Steven, Gareth, Mel and James have also observed, the current legalisation is still lagging behind. In addition to these changes, the social purpose of Adoption has also been reconfigured. Adoption is now seen as principally a tool to protect and advance the interests of the child.

It follows that if the primary motivation of Adoption is to achieve what is in the best interests of the child, then we should be primarily concerned with who has the right to custody and the right of control over the way the child is brought up. Yet, under the current law, both a Guardian and a Parent can exercise these central rights of custody and control.

Although sharing substantiality the same rights and responsibilities with regards to the child, there are three differences according to the Law Commission Report between a Guardian and a Parent. First, rights of succession are applicable under a parent-child relationship, and second, Parenthood is more permanent whereas Guardianship ends when the child turns 20 and the court has a wider discretion to end a Guardianship relationship.

The third difference is described by the Law Commission is “status” of legal Parenthood. Behind this idea of ‘status’ lies the real difference between that Guardianship and legal Parenthood. That is, role of the Birth-parent(s). When someone becomes the Guardian of a child, the Birth-parent is relieved of parental rights and responsibilities but the Birth- parent is has a right to be recognised as the Birth-parent and the change in Guardianship does change the child’s legal identity. A new relationship is created without completely severing the old relationship.

There may be that – in the best interests of the child - the old relationship needs to be served. Yet, short of that, it is difficult to see why those who are willing to take up the rights and responsibilities of parenthood – to exercise custody and care for the child – needs the old relationship to be served in order to enjoy their relationship with the child.

In terms of reform, what I advocate for is the emergence of a stronger form of legal Guardianship that operates as an alternative to Adoption. By dissolving some of the minor differences between strong guardianship, in terms of permanence and succession, we can give a same bundle of rights to ‘Special’ or ‘Enduring Guardians’ as we do to Parents. In doing so we recognise that adoption is often a re-arrangements of rights and duties between the adults in the child’s life in order best serve the interests of the child rather than a transplantation of the child to serve the interests of the adults.

In the United Kingdom, over 2,000 ‘Special Guardians’ are appointed each year under the UK Adoption and Children Act 2002. The popularity of this alternative to Adoption is attributed to various and numerous circumstances where there are social or cultural reasons to retain formal links between the child and his or her birth parents. However, the trade-off is against the interests of would-be adopters since they forego the social status of being a ‘Parent’, as opposed a ‘Guardian’, and perhaps forego the sense of ‘family unity’ that may be lost recognising that the child has more than one set of carers.

What matters first and foremost is who is best able to care for the child, and there ought not be a presumption that transferring rights of custody and control means severing links between the Birth-parent(s) and the wider Birth-family. Special or Enduring Guardians is a workable legal category that is perhaps better suited to address the care for children than Adoption itself. 

*Jesse Wall is a graduate student at the University of Oxford