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Legal question: Parental rights in case of relinquishment(10 Posts)
In a case of relinquishment: Who has parental rights and up to which point?
Have been advised differing opinions:
a) S19/S20 legally signed under witness (Cafcass), transferred parental rights (partially?) to LA.
b) As there was never a court order (e.g. care order, placement order), parental rights remain fully with BM.
Can anyone clarify? Thanks.
(I know that I cannot rely on MN opinion for this, but would like a pointer as to in which direction I need to investigate further. Both opinions have been voiced with some authority; one of them is wrong; which one do I query?)
It's shared PR - the birth mother (possibly the birth father too depending on birth certificate etc) has PR, when she signs the S19 she gives PR to the LA, and then once the child is placed, the prospective adopters gain PR as well. From then it's shared 3 ways until the adoption order is granted. But obviously there are restrictions on excercising PR for these parties.
See this section of the Adoption and Children Act 2002 - www.legislation.gov.uk/ukpga/2002/38/section/25
The birth mother does have more rights than if there was a PO in place - she can revoke consent right up until the AO is applied for, in which case the LA/adopters have a certain number of days to either return the child or apply for a placement order. However some day to day things like getting routine vaccinations etc, the LA would authorise that with their PR.
Thank you Lilka. That is convincing (the link). And perturbing.
Am starting to think that adopters should all have a legal counsel.
I don;t think there are enough relinquishments in the UK for this to be an issue for the vast majority of adopters.
I'm not sure legal representation at an early stage will help. I'm pretty sure that the lawyer will say "You understand until the AO that you have no legal rights in this triangle, yes? OK thanks that'll be £500 please"
The only alternative I can see to the current position is for the state to have PR 100% before any adoptive parents are in the mix with no legal possibility of child returning to birth family at that stage. I thought we'd moved away from this because t wasn't in a childs best interests to wait whilst this happened and most AP's take the risk because returning the child is so uncommon.
Oh it isn't about if prospective adopters have/should have PR.
It's just a case of different legal authorities saying different things. So we heard from: SS legal advisor, and court legal advisor. One of them told us that the LA have no PR in a case of relinquishment (PR remaining with BM), the other told us that the LA do have PR. I'll leave it to your speculation who said what. But it happens to be necessary for us to know which one is true. And we also will need to convince the authority who is wrong, that they are indeed wrong.
I find it perturbing that a) either of them would be so wrong about a basically straightforward yes/no question - because one of them is; and b) it is left to lay people like us to try to figure out who of these 'experts' and 'authorities' may be right. And c) that we, as lay people, should need to argue with/educate a legal advisor (the one who is wrong) on what is legal.
I appreciate that this particular question is reasonably rare, but there are many many legal questions involved in any kind of adoption, and apparently you cannot trust the 'authorities' to give you reliable advice. So on that basis perhaps prospective adopters should have an independent legal counsel of their own. (Or MN at their fingertips.)
To add a very rare situation to the mix. When you adopt from a non-Hague convention country you have to re-adopt in the UK and before the AO the situation is treated as a private fostering arrangement (hence lots of visits). But there is nothing in the law which says who has PR. Technically DS spent two years with no-one having PR though as I had a foreign birth certificate of his with me named as the parent no-one ever objected to me making the decisions. However we were in a bizarre legal no mans land.
Kazakhstan re-issue birth certificates on adoption with the name of adoptive parents as birth parents. I know its not technically correct but DS likes the fact that he has a birth cert with my name on it!
"Yes, I know that woman on the CCTV looks like me, but see here, I was in hospital in Kazakhstan at the time. This is a legal certificate. The law says I was not in the country. Are you arguing with the Kazakh government? Are you? And I don't know how you could think I could carry out such a sophisticated bank robbery at the same time as feeling full-on labour pain. It's painful, I tell you, I was screaming. I'd have done anything for the agony to end...well, except rob a bank...hehe..I would never do that, honest, guv"
Ha ha - never thought of that - as it happened I know exactly where I was the day DS was born becasue we have an awayday for the directors of the company I was at then - "brainstorming" in Wellingborough. In the days when I was the brainstorming type
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