1. INTRODUCTION

In 2003, John Eekelaar published a paper on ‘Contact and the Adoption Reform’. He was writing shortly after the passage of the Adoption and Children Act 2002, but several years before its adoption reforms came into force in 2005. Eekelaar considered it necessary to ‘examine the evidence relied on by government sources which advocated an increased role for adoption’. He argued that ‘the use of adoption raises some serious difficulties’, and that ‘these arise most visibly around the issue of contact between the child and its birth family’. He also considered it ‘perhaps unfortunate that legal outcomes in this area come in packages, for these distract attention from the reality of relationships towards legal incidents of the packages’. My chapter in this volume will examine legislation, case law, empirical research and policy that has emerged on adoption and contact since the 2002 Act’s implementation, assessing the extent to which Eekelaar’s fears have been realised, as well as the normative implications.

Space precludes a full response to Eekelaar’s work on adoption. This contribution, thus, focuses on two particular strands evident in his 2003 chapter. The first is the emphasis on prioritising adoption (involving a transfer of legal parenthood) as an alternative to foster care (which does not involve such a transfer), and the related topics of reducing delay, achieving targets and applications for preliminary placement orders. The second theme encompasses the implications (or often, in practice, the lack thereof) of adoption for older children, and the particular conundrum of contact with birth relatives. This chapter will highlight Eekelaar’s frequent prescience on how law and practice under the 2002 Act has panned out.

2. PRIORITISING ADOPTION: DELAY, TARGETS AND PLACEMENT ORDERS

2.1. ADOPTION, FOSTER CARE AND SPEED

John Eekelaar wrote that ‘in 2000 the overwhelming concern of policy regarding adoption was directed at children who were already in public care’, and he was concerned that ‘[t]he desirability of moving such children into adoption is no longer hedged by such expressions as’ where suitable ‘, but is promoted as an end in itself’.

INTRODUCTION

In the context of an ageing population, much care for elderly people in England is provided informally, i.e. in the absence of a contractual or other legal duty. There is no general duty to maintain or care for one‘s elderly parents in English law, and a large amount of informal care is provided by adult children. In light inter alia of the health and financial disadvantages often suffered by carers and the limitations of state support for them, this contribution concerns the extent to which informal care is recognised (as a factor justifying a remedy) in English private law. While this topic was considered at greater length in this author‘s earlier monograph (Informal Carers and Private Law) and elsewhere, in light of the overall theme of the present book, this contribution will focus on care provided by adult children in the current policy environment.

Section 2 seeks to analyse the social context in which informal care takes place and to justify a private law approach to informal care. Section 3 then outlines the recognition of informal care in a number of substantive private law areas. Much of the discussion is concerned with the scope for a claim by the carer against the care recipient or his estate, as a means of remunerating or compensating for the caring work. It will be seen, however, that private law can protect the care recipient who has chosen to provide such a remedy for his carer but it was procured by (for example) undue influence. Without suggesting that private law provides the sole or even the main solution to the proper support of informal care, this contribution argues that the role of private law in this arena is worthy of consideration, rationalisation and possible expansion.

THE SOCIAL CONTEXT OF INFORMAL CARE: JUSTIFYING A PRIVATE LAW APPROACH

The formal social care system in England, which‘supports people of all ages with certain physical, cognitive or age-related conditions in carrying out personal care or domestic routines’, is now largely governed by the Care Act 2014.

HISTORY AND BACKGROUND

BASIC STRUCTURES OF THE LAW ON ADULT RELATIONSHIPS

Northern Ireland is a common law jurisdiction within the United Kingdom of Great Britain and Northern Ireland. The island of Ireland was united with rest of the United Kingdom by the Acts of Union of 1800, but the island was subsequently partitioned and the south of Ireland eventually became an independent republic. Since the creation of Northern Ireland pursuant to the Government of Ireland Act 1920,

Northern Ireland Orders in Council have been described as’ a third type of (quasi-) primary legislation’, which, ‘ [a]lthough mainly employed during periods of direct rule from Britain … continue to be used in certain policy areas’.

The law on marriage, civil partnership and cohabitation in Northern Ireland essentially mirrors that existing in England and Wales before the latter jurisdiction introduced same-sex marriage. Marriage (whether civil or religious) is exclusively for opposite-sex couples, civil partnership is a near-equivalent institution exclusively for same-sex couples (introduced via the same Civil Partnership Act 2004 as applies in England and Wales and Scotland), and there is no comprehensive recognition of informal cohabitation, even if cohabitants are recognised for discrete purposes in Northern Ireland.

Despite the broad equivalence of the Northern Irish and pre-2013 English positions, it is noteworthy that (for example) only a married couple per se could jointly adopt a child in Northern Ireland even after the introduction of civil partnerships. This blanket ban on non-marital couples being joint adopters was held to breach the European Convention on Human Rights by the House of Lords in Re G (Adoption: Unmarried Couple). While there was a further Court of Appeal judgment on the matter in 2013, the Department of Health announced following it that ‘unmarried couples, including same sex couples, and those in a civil partnership may apply to adopt’.

LEGAL FRAMEWORK AND STATISTICS

BACKGROUND AND OVERALL LEGAL FRAMEWORK

At the time of writing, there is no mechanism by which a transgender person can have his or her preferred gender comprehensively recognised in Irish law. The general legal position remains that biological indicators present at the time of birth ‘continue to act as the governance in the determination of sex’. In his 2007 judgment in the High Court case of Foy v An t-Ard Chlaraitheoir, McKechnie J declared that Ireland was in breach of Article 8 of the European Convention on Human Rights in the light of the European Court of Human Rights’ judgment in Goodwin v United Kingdom because of the ‘absence of any provision which would enable the acquired identity of [the applicant] to be legally recognised in this jurisdiction’.

Nevertheless, the Government's Gender Recognition Advisory Group (the ‘GRAG’ or the ‘Group’) did not report until 2011 (following the Government's decision to abandon a surprising attempt to appeal the decision in the Foy case), and the ‘General Scheme’ of a Gender Recognition Bill was finally published only in July 2013. A relevant report of the parliamentary Joint Committee on Education and Social Protection was then published in January 2014, recommending a number of changes to the anticipated Bill. Following discussion of the Committee's recommendations by the Cabinet, a Revised General Scheme (containing few major changes) was published in June 2014, and a Bill based on it was published only in December 2014. Indeed, the Minister for Social Protection has admitted that gender recognition was an issue that has been ‘left unaddressed for far too long’. By the time the General Scheme was published, two Private Members’ Bills had been propagated, by Aengus Ó Snodaigh TD and Senator Katherine Zappone respectively. This chapter will focus on the Government Bill (GRB) that became the Gender Recognition Act (GRA) in July 2015 after considerable amendment and debate. It is apparently expected to be commenced by the end of August 2015.

Ireland has a written constitution. However, in a 2002 judgment relating to earlier proceedings in Foy, McKechnie J rejected the submission that the applicant's inability to have the register of births amended to reflect her preferred female identity violated her constitutional ‘rights of privacy, of dignity, [or] of equality’, or her right to marry, in spite of his recognition that those constitutional rights did exist.