Tag Archives: change of circumstances

Applying to discharge or vary a Special Guardianship Order

The law is as set out at section 14 D of the Children Act 1989, which is set out at the end of this post.  We can see from this that a parent can apply to vary or discharge an SGO but needs the court’s permission first.

‘Vary’ means you want to change the content of the order; ‘discharge’ means you want the order to come to an end. There is probably little point in applying to discharge or vary an order until at least six months have passed since it was first made – if you think that the order should not have been made in the first place, you should consider applying to appeal – but you will have to do that within 3 weeks.

Special Guardianship Orders are meant to be a way of providing a child with a permanent home throughout his childhood so you will need good reasons to say that the order should no longer apply, once it has been made. There is no automatic legal aid for parents in such proceedings.

For more general information about SGOs, see this post. 

The courts have decided that this is a two stage test.

a. First the parent must show a change of circumstances.
b. Then the court will consider the child’s welfare and the parent’s prospects of success in challenging the SGO.

Step 1: What counts as a ‘significant change of circumstances’ ?

The courts are unlikely to place much weight on use of the word ‘significant’ when applied to the word ‘changes’. In G (A Child) [2010] EWCA Civ 300 Wilson LJ decided to proceed on the basis that there is no relevant difference between applying for permission to discharge a placement order [under section 24(3) of the Adoption and Children Act 2002] and applying for permission to discharge an SGO, even though section 14D refers to ‘significant’ changes and the Adoption and Children Act does not.

Various courts have agreed that the bar cannot be set too high so that no parents could ever get over it; parents should not be discouraged from trying to improve their circumstances. But the change in circumstances has got to be a relevant one.

In the case of Re B-S (Children) [2013] EWCA Civ 1146 the court described the test for ‘change of circumstances’ in this way, in the context of the Adoption and Children Act 2002:
a. … the court has to be satisfied on the facts of the case that there has been a change in circumstances ‘of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation’
b. the test should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that is unachievable;
c. whether or not there has been a relevant change in circumstance must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application;
d. if there is no change in circumstances, that is the end of the matter, and the application fails.

In another case also called G (A Child) [2015] EWCA Civ 119 the Court of Appeal agreed that a change in the child’s circumstances could also be relevant.

Therefore, the parent will have to demonstrate some relevant changes which on the facts of the particular case in front of the judge, means it is appropriate for the Judge to consider moving on to Step 2 of the process. It is likely that if the concerns about your parenting in the care proceedings were very serious, you will need to show correspondingly serious changes.

For example, in Re G [2010] the mother’s child was living with the maternal grandmother under an SGO after the mother had been in a number of violent relationships. However, the grandmother agreed she would not oppose permission being given to the mother to apply to discharge the SGO, after hearing about the efforts the mother had made to attend counselling/therapy to help her make better relationship choices in the future. The mother was also caring successfully for her second child without any intervention from Children’s Services.

Step 2: What do the courts mean by considering issues about ‘welfare’ and ‘prospects of success’ ?

Having determined that the approach to ‘change’ should be the same for applications to discharge an SGO and to discharge a placement order, it made sense for Wilson JL to also decide in G (A Child) [2010] that courts should take the same approach after deciding that the circumstances had changed.

Wilson LJ confirmed that this means the approach in M v Warwickshire County Council [2007] should be followed, where he said at paragraph 29 of his judgment in that case:

In relation to an application for leave under s.24(3) of the Act I therefore hold that, on establishment of a change in circumstances, a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted.

This means a change in circumstances is a necessary but not sufficient condition to get permission to make the application to discharge a SGO – it opens the door for the Judge to consider it and he or she will then examine the often overlapping issues of the child’s welfare/prospects of success of the application.

The child’s welfare is not however the paramount consideration for the court in this exercise. Also, the issue of  “a real prospect of success” relates to discharging/varying the order NOT necessarily the return of the child to the parent’s care. See Re G [2015].

At this stage, the courts will probably want to consider how long the changes you have made have been in place, and how likely they are to be sustained in the future.

 

Section 14 D Children Act 1989

Special guardianship orders: variation and discharge

(1)The court may vary or discharge a special guardianship order on the application of—
(a)the special guardian (or any of them, if there are more than one);
(b) any parent or guardian of the child concerned;
(c )any individual in whose favour a [Child arrangements order] is in force with respect to the child;
(d) any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e) the child himself; or
(f) a local authority designated in a care order with respect to the child.
(2) In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3) The following must obtain the leave of the court before making an application under subsection (1)—
(a) the child;
(b) any parent or guardian of his;
(c) any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d) any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4) Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5) The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.

I don’t want my child to be adopted

What can I do?

it will depend at what stage of the proceedings you have reached and what orders have already been made. This post looks at what happens once the final care and placement orders have been made.

A child can only be adopted when three orders have been made – a care order, a placement order and finally, an adoption order. Care and placement orders are usually made at the same time. A care order allows the State to decide where your child should live. A placement order allows the State to put your child in a family that may decide to adopt him or her. An adoption order confirms that this family is now the legal family and the birth parents no longer have any legal connection to their child.

  • Parents are currently in care proceedings and no final order has been made It is really important that parents argue their case in the care proceedings while they are happening – you need to engage with the case against you at the time as it may be too late to do anything to change the situation once a care order is made. See the discussion below.
  • Final care order made but no placement order. If a placement order hasn’t been made yet, you may be able to appeal against the care order or apply to discharge it. We discuss this in another post – ‘After the Care Order.’
  • Final care order and placement order made – Parents can apply for leave to revoke a placement order under section 24 of the ACA 2002, IF:
    • their child hasn’t yet been placed for adoption; and
    • they can show a ‘change of circumstances’ since the placement order was made.
    • The form to make an application to revoke a placement order is here. 
  • Potential adoptive parents have applied for an adoption order – Parents can apply for permission to contest the making of an adoption order under section 47(7) of the ACA 2002 but only if they can show a ‘change of circumstances’.

 

Challenging an application for an adoption order

There is a useful and clear discussion about the process in the case of A and F (children) [2015]. The Judge set this out clearly at paragraph 27 of the judgement for the benefit of the mother who was a litigant in person. However, because she did not accept that care orders should have been made in the first place, she did not accept that any criticism could be made of her parenting and therefore she was unable to engage with the essential steps to challenge her children’s adoption.

This underlines that it is essential to challenge a care order as soon as possible if you do not consider it was validly made – it is too late to wait until the time that applications are made to apply for adoption.

As the Judge commented at para 26 of his judgment:

Indeed, the majority of the mother’s statement is concerned with the repetition and correction of perceived past wrongs sustained by her. This was also the position with regard to her oral submissions. This means that inevitably she does not accept as a “starting point” District Judge Shaw’s decision nor his findings. As a matter of logic, therefore, she finds it impossible to address the issue of “changes in circumstances” because broadly her parenting circumstances, when the children were removed, were perfectly acceptable and therefore no change is required. Accordingly, an intellectual impasse results

There are three things parents need to do:

  • Step One: establish a change of circumstances. The court has already decided by making a final care order that the parent has caused or is likely to cause a child significant harm. Therefore the parent must show the court what is different NOW. This is discussed in more detail below;
  • Step Two: convince the court it is right to give permission to argue against an adoption order being made.  This means that the court will look at all the relevant issues in the case and think about what the impact would be on the children. The children’s welfare is the most important consideration for the court. If the parent doesn’t succeed in getting permission, the matter ends there.
  • Step Three: Persuade the court to refuse an adoption order IF a parent is given permission to argue against the making of an adoption order, they will have to persuade the court to reverse the direction in which the children’s lives have travelled since the Care and Placement proceedings. Obviously, the longer the children have been in their potential adoptive placement, the harder this will be.

This post will look at these issues in more detail below.

Although the courts try to separate out the different questions, to make it easier to analyse the issues, it is clear that each question has the potential to be significantly wrapped up in the other questions. For example, the ‘prospect of success’ the court is looking at refers to your prospect of success in challenging the order, NOT your prospects of success in getting your child home.

However, if you have very little chance of persuading the court that the child should come home, that issue is certainly going to be on the court’s mind. It is very difficult to successfully challenge placement or adoption orders,  as by the time such challenge is made the child has been living away from the parents for many months, even years and the court is going be worried about the impact on the child of possibly another move from a home where they may now be settled.

In Re L [2014] 2FLR 913 at paragraph 45, Lady Justice Black said this:

“When a judge considers a parent’s prospect of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.”

STEP ONE: Further discussion about what does ‘change in circumstances’ mean?

In a nutshell, any change in circumstances is an issue of fact. We can get the following principles from the case law:

  • The test should not be so difficult that it rules everyone out – parents shouldn’t be discouraged from trying to improve their lives.
  • The changes must be relevant or material to the question of whether or not leave should be granted.
  • The changes are not confined to those of a birth parent, but they may include changes occurring in the child’s life (see Re T [2014] EWCA (Civ) 1369).
  • The necessary change in circumstances … does not have to be “significant”; the question is whether it is “of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings”: Re P, para 30.

There is a useful article here by suesspiciousminds which considers the relevant case law in this area, and in particular the case of The Borough of Poole v W [2014] EWHC 1777. The Judge concluded at paragraph 25 of his judgement that the parents could not succeed, despite making considerable changes to their lives:

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption.

My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.

For an example of a case where a mother succeeded in appealing against the initial refusal to allow her to argue against a placement order, see the case of G (A Child) [2015] EWCA Civ 119, discussed in this post by suesspiciousminds. The Court of Appeal agreed that a change to the child’s circumstances could also be relevant:

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

Further reading about ‘change of circumstances’.

  • See this post from the UK Human Rights blog – Challenging Adoption order using Human Rights.
  • For an example of a case where an appeal against an adoption order did not succeed, see R (A Child) [2014]
  • See the case of Re T [2014] for discussion about applying to revoke a placement order and what is meant by ‘change of circumstances’.
  • For a case discussing what happened when a parent wanted to contest an adoption order by asking the court to look at fresh evidence, see the case of G (A Child) [2014].

STEP TWO: If there is a change of circumstances, should the court give you permission to challenge the adoption order?

In relation to Step two this an issue of judicial evaluation or discretion which means that different judges can and do make different decisions but could not necessarily be challenged on appeal. ‘Exercising a discretion’ means you are making your own value judgment and there is usually a pretty wide range of possible outcomes that would be accepted. Provided of course that the Judge has applied the correct law and facts.

The parent must have ‘solid grounds’ for making the application. Paragraph 74(i) to (x) of Re B-S identifies the features to be weighed in the balance.

  • Prospect of success here relates to the prospect of resisting the making of an adoption order, not the prospect of ultimately having the child restored to the parent’s care.
  • The issues of ‘change in circumstances’ and ‘solid grounds for seeking leave’  are treated as two separate issues in order to analyse them BUT in reality they are inter-linked and one may follow the other
  • If the Judge finds a change of circumstances AND solid grounds for seeking permission, the Judge must then consider child’s welfare very carefully.
  • The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible.
  • But, the child’s welfare is paramount.
  • To find out what the child’s welfare needs, the judge must take into account ‘all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. The use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.
  • The court needs proper evidence, but this doesn’t always have to be evidence from people speaking to the court. Often applications for leave can be fairly dealt with on written evidence and submissions.
  • As a general proposition, the greater the positive change in circumstances and the more solid the parent’s grounds for seeking leave to oppose, the more significant must be the detrimental impact on the child if the court is going to refuse to give them permission to challenge the adoption order.
  • The fact a child is now living with the prospective adopters or that a long time has passed, cannot determine the matter.
  • BUT the older the child and the longer he/she has been living with the prospective adoptions, the worse it is likely to be to disturb that.
  • The court should not attach too much weight to any argument that the proceedings are having an adverse impact on the prospective adopters – but this isn’t a trivial point and judges must try to minimise this impact by robust case management.
  • The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”.

Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

The court will be well aware of the seriousness of adoption and the decision of the Supreme Court in the case of Re B [2013] 1WLR 1911.

STEP THREE: Will the court reverse the ‘direction of travel’ for the child and refuse to make an adoption order?

It is quite rare for the court to refuse to make an adoption order. One example of such a case is A and B v Rotherham Metropolitan Borough Council [2014] which is the first since the 2002 Adoption Act. The court removed the child from the home of the potential adoptive parents – where he was settled – to live with his paternal aunt. It is clear that the court must consider the child’s welfare throughout his life – as the Judge commented here, this could mean 80 years or more.

The Judge commented at paragraph 95:

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

The Judge had this to say about the ‘nothing else will do’ test at paragraph 15:

With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”… Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires.
If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

The decision of the Court of Appeal in July 2016 in W (A Child) [2016] EWCA Civ 793 dealt explicitly with four very important questions:

  • The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
  • The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;
  • Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;
  • Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

The court said this about the ‘nothing else will do’ test at paragraph 68 of their judgment:

Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:
“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”
The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

The court was clear that there is NO ‘presumption’ or ‘right’ for a child to be brought up by natural family and that those assessing the case had wrongly believed there was – thus the focus on the impact of removing A from the only parents she had known for 2 years, was not properly considered.

The issue is only and always the child’s welfare. The matter was returned to another judge for a re-hearing. It will be interesting to know the outcome.

Time Limits for Appeals.

For more detailed discussion of the rules that apply to time limits, see this post about appealing against a care order. It is very important that you tell the court that you want to appeal and why you want to appeal within 21 days of the decision you want to challenge.

The court have considered appeals out of time in the case of re H (Children) [2015] and emphasised how important it is to stick to time limits in children cases. Although the father in this case was allowed to appeal some 8 months after the first decision, the court emphasised that this was ‘exceptional’. See paras 33 and 34 of the judgment:

33.As a matter of law, if no notice of appeal is lodged during the 21 days permitted for the filing of a notice, a local authority should be entitled to regard any final care order and order authorising placement for adoption as valid authority to proceed with the task of placing the child for adoption. If that process has subsequently to be put on hold in order to allow a late application for permission to appeal to be determined, the impact upon the welfare of the child (particularly where prospective adopters who have been chosen may be deterred from proceeding) is also too plain to contemplate.

34. The problem that I have described is a necessary difficulty that arises from our system which contemplates that, notwithstanding the expiry of the 21 day period for lodging a notice of appeal, the court may, where to do so is justified, permit an appeal to proceed out of time. There will thus inevitably be a period after a late application for permission to appeal where time is taken to process the application before it is determined. Whilst accepting the inevitability of this source of, in some cases, highly adverse impact on the welfare of a child, every effort should be made to avoid its occurrence. One strategy which would seek to avoid the problem would be for the judge in every case where a final care and placement for adoption order is made to spell out to the parties the need to file any notice of appeal within 21 days and for the resulting court order to record on its face that that information was given to the parties by the judge. Secondly, this court and any appellate judge in the Family Court, must continue to strive to process any application for permission to appeal in a public law child case with the utmost efficiency. Finally, the fact that an application for permission to appeal which relates to a child in public law procedure is out of time should be regarded as a very significant matter when deciding whether to grant ‘relief from sanctions’ or an extension of time for appealing.

Placement and Adoption Orders

With thanks to Mike McCabe for his assistance with this post. 

 

How do children get adopted?

The first thing to remember is that care proceedings are NOT adoption proceedings.

The relevance of the 26 week timetable and placement orders

The first and very important point to make is that care proceedings are not adoption proceedings.  Before a child can be adopted, The LA has to obtain a placement order. This is often applied for at the same time as a final care order.

However note section 22 of the ACA – a LA can apply for a placement order if a child is simply accommodated by them under section 20 of the Children Act 1989. This can cause problems as it is likely parents had much less access to legal help and advice if their children went into LA accommodation via section 20 and NOT via care proceedings – where the proceedings are in a court and legal help and representation is automatic.

A Placement Order is made by a court under section 21 of the Adoption and Children Act 2002. It allows a LA to find an adoptive home for a child. If the parents don’t agree with this, the court can decide to go ahead without their consent, if the court decides this is the right thing to do for the child.

The court cannot make a placement order unless:

  • the child is subject to a care order OR
  • the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met (for example a child in a ‘foster to adopt’ placement if there are no care proceedings); OR
  • the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

  • that the child concerned is suffering, or is likely to suffer, significant harm; and
  • that the harm, or likelihood of harm, is attributable to—
    • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    • the child’s being beyond parental control.

This is a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

Section 22 of the ACA sets out that a local authority must apply to the court for a placement order in respect of a child if:

  • the child is placed for adoption by them or is being provided with accommodation by them,
  • no adoption agency is authorised to place the child for adoption,
  • the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
  • the authority are satisfied that the child ought to be placed for adoption.

Speeding up care proceedings

The government became so concerned by how long care proceedings were taking that section 14 of the Children and Families Act 2014 now provides that care proceedings must finish as soon as possible or in any event, take no longer than 26 weeks to conclude.

Care Proceedings may go beyond 26 weeks when this is necessary to resolve the proceedings justly. The Children And Families Act further provides at section 14(5).

A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

Adoption can take place either with parents’ consent or by order of the court.

If parents give consent, both must do so, and the consent can be withdrawn at any time until the Adoption Order is made. A mother cannot give her consent until her child is at least six weeks old.

Assuming that the parents do NOT consent to adoption, the most likely route by which a child becomes adopted is:

  • a final care order, endorsing a plan for adoption; then
  • a placement order which authorises the LA to place a child for adoption (often made at the same time as the final care order); then
  • an adoption order which gives the child the legal status as child of his adoptive parents.

Some parents express anxiety that a social worker could simply come and take their children away to be adopted but the reality is that it is the court that makes the adoption order and this will be the final order in what is usually a fairly long set of proceedings.

After the final care and placement orders are made, the LA will look for possible adoptive parents for the child – this may take many months as there are more children waiting to be adopted than there are adoptive parents.

If a placement order is made and the LA can’t find an adoptive family for the child, it should consider applying to revoke the placement order – we discuss revoking the placement order below. However, this does not necessarily mean that the child will return to his birth family; the LA may instead look for a long term foster placement.

 

Dispensing with the parents’ consent to placement or adoption orders

Section 52 of the Adoption and Children Act 2002:

(1)The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a)the parent or guardian cannot be found or is incapable of giving consent, or

(b)the welfare of the child requires the consent to be dispensed with

Adoption will sever all legal ties between the parent and child. An adoption order can only be reversed in very rare circumstances. However, we have moved on some way from the climate of previous years when children might not even be told they had been adopted; now much more openness is expected and children and birth parents can keep a link with one another even after the adoption order is made. Most commonly this is by letters and photos a couple of times a year.

Some adoptions are ‘open’ and direct contact can continue after the order, but this is rare. We agree more research about supporting direct contact post adoption would be beneficial.

 

Adoption orders

Who can apply to adopt a child?

Applicants must live in the United Kingdom, Channel Islands or the Isle of Man. They must be 21 years old (if the child’s father or mother, they can be 18 years old, but the other adoptive parent must be 21), and the child must have lived with them for at least 10 weeks before the application is made.

 

What happens after an Adoption Order is granted?

The adoption is permanent. An adoption certificate is issued for the child with his/her new name. This replaces his/her birth certificate. The child receives the same rights s/he would as if the birth child of the adoptive parents (e.g. – rights to inheritance). All those who previously had parental responsibilities for the child lose them.

 

I don’t agree my child should be adopted – what can I do?

A parent has the following options. it will depend at what stage of the proceedings you have reached and what orders have already been made.

  • Final care order made but no placement order. If a placement order hasn’t been made yet, you may be able to appeal against the care order or apply to discharge it. We discuss this in another post – I want to appeal or discharge the care order.
  • Final care order and placement order made – Parents can apply for leave to revoke a placement order under section 24 of the ACA 2002, IF:
    • their child hasn’t yet been placed for adoption; and
    • they can show a ‘change of circumstances’ since the placement order was made.
    • The form to make an application to revoke a placement order is here. 
  • Potential adoptive parents have applied for an adoption order – Parents can apply for permission to contest the making of an adoption order under section 47(7) of the ACA 2002 but only if they can show a ‘change of circumstances’
  • An adoption order has been made – it is possible for the court to revoke an adoption order using its ‘inherent jurisdiction’ but this is a very exceptional and very rare step for the court to take. See the case of PK v Mr and Mrs K [2015] EWCH 2316 for consideration of the law about revoking adoption orders, and an example of where the court agreed to do it. For a helpful overview of the cases where adoption orders have been overturned, see this article by Dr Julie Doughty of the Transparency Project in 2016.

 

For further information, please see this post about appealing against adoption orders. 

 

Can I have contact with my child after an adoption order is made?

The Children and Families Act 2014 came into force on 22nd April 2014 and introduced a new section 51A of the Adoption and Children Act 2002 which will allow applications to be made for contact after an adoption order has been made. Suesspicious minds has written a detailed post explaining  this here.

You also might be interested in our discussion about contact after adoption – time for a new default position?

 

Why are adoption orders made?

The general view is that if a child can’t be safely looked after in his birth family,  finding an adoptive family  represents the best chance that child will have of achieving stability in his childhood.

The key distinction between adoption and fostering is that an adopted child will be part of a new family whereas a foster carer is a paid professional. For further discussion, see our post on the differences between adoption and fostering.

However, the older the child or the more challenging his behaviour, the less likely it is that adoption will be the right outcome for that child. An older child, with clear memories of birth families or other carers may not find it easy to become part of the adoptive family. it is clear there are serious issues around the availability of post adoption support.

Research published on April 9th 2014 by the University of Bristol offers another perspective on adoption disruption rates, concluding that they are low but emphasising the importance of post adoption support, particularly for older and more challenging children.