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.
What should happen after care and placement orders are made if the parents want to appeal?
Difficulties have arisen when parents wanted to appeal but local authorities went ahead with the adoption process anyway. The case of W & Ors (Implementation of Adoption Plan Pending Appeal) [2024] EWCA Civ 837 (25 July 2024) gave guidance as to what should happen:
(1) A local authority should take no steps to implement a placement order and care plan for adoption until after the expiry of the 21-day period for filing a notice of appeal against the order.
(2) After that point, an application for permission to appeal can only proceed if the proposed appellant is granted an extension of time for filing the notice pursuant to CPR 52,25(1) and Practice Direction C paragraph 4. In practice, given the life-changing importance of placement orders, extension of time is frequently granted if the appeal notice is filed fairly shortly after the appeal period has expired.
(3) In cases where, after the expiry of the 21-day appeal period no appeal notice has been filed and the local authority is concerned that further delay would be contrary to the child’s interests, it should inform the other parties that it intends to proceed to take steps to implement the placement order and care plan. Having been given such notice, the onus is then on any party wishing to appeal to file an appeal notice without further delay and seek an immediate stay of the order.
(4) Once an appeal notice has been filed and served on the local authority, but before a decision has been made on the application for permission to appeal and/or on an application for a stay, if the local authority is concerned that delays in the process are having a damaging effect on the child, it should contact the Civil Appeals Office so that consideration can be given to accelerating consideration of the application for permission to appeal. It is not acceptable for the local authority to proceed as if the application for permission to appeal has never been filed.
(5) The local authority and any other respondents to the application for permission to appeal against a placement order must give urgent consideration to whether they should file a respondent’s statement pursuant to CPR Practice Direction 52C Paragraph 19(1) and, if they decide to file such a statement, to do so without delay.
(6) If this Court, either before or on granting permission to appeal, grants a stay of the proceedings and directs that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, any step taken in breach of such a direction by this Court is manifestly unlawful and prima facie a contempt of court.
(7) If there is any particular step that the local authority wishes to take to implement the placement order, it may apply to this Court for the stay to be varied . Reasonable requests of this sort are unlikely to be refused provided they do not adversely affect the welfare of the children or prejudice the outcome of the appeal. But it is difficult to think of any circumstances in which it would ever be appropriate for a farewell contact visit to go ahead when an appeal against a placement order is outstanding.
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. For more detailed discussion,please see this post about appealing against adoption orders.
- 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:
- 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’
It is very important that the procedural requirements under the Adoption Agency Regulations 2005 are met – see Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor [2021] EWHC 3004 (Fam) (10 November 2021) for discussion about the consequences when the Regulations are not followed.
Can the courts revoke an adoption order once it is made?
It is possible for the court to revoke an adoption order – i.e. discharge/end that order – using its ‘inherent jurisdiction’ but this is an exceptional and rare step for the court to take because an adoption order is supposed to be an ‘order for life’. The case law suggests there are three categories of case where you might be successful
- procedural irregularities that have led to a breach of natural justice
- where the adoption breaks down
- a mistake in finding that the threshold criteria had been reached in care proceedings
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.
An adoption order was revoked in the case of Re J (Adoption: Appeal) [2018] EWFC 8 but the circumstances of this were unusual; the child had been adopted by his stepfather and his mother had lied about the father’s whereabouts. When the father found out he applied for the adoption order to be revoked and the court agreed – but it made no difference to the child’s day to day life as he remained living with his mother.
See also AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam). This involved two children who were adopted in 2011, when they were aged eight and six respectively, but the adoption broke down in 2018. Everyone agreed that the adoption order should be set aside as it was upsetting for all the parties.
But in X and another [2024] EWHC 1059 (Fam) the court did not follow AX v BX and determined it was not possible to revoke an adoption order due to a change in circumstances after the order was made – here the two adopted children had returned to their birth mother and did not want the adoption order to remain. The court found that although it was established that the inherent jurisdiction of the High Court included a power to revoke an adoption order made under the Adoption and Children Act 2002 in a case where there had been a fundamental procedural irregularity, the inherent jurisdiction did not include a power to revoke such an order on welfare grounds since such a power would cut across or be incompatible with the scheme of the 2002 Act , which in section 55 expressly dealt with revocation of adoption orders, but only in a very limited category of case, that of legitimation; that the power in section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to rescind an order of the family court was never intended to apply to the revocation of adoption orders under the 2002 Act , since such a broad and unfettered power would be obviously contrary to the public policy considerations in respect of the finality of adoption orders; and that, accordingly, there was no power to revoke an adoption order made under the 2002 Act on the grounds of the child’s welfare (post, paras 73–93).
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.
