There are 2 types of Adoption proceedings where a Guardian may be appointed
- where the child was placed for adoption by an Adoption Agency – normally a Local Authority or
- Non Agency adoptions – partner adoptions, adoptions by relatives of foster carers and others where the child was not placed for adoption by an Agency
Grounds for an Adoption Order
There are 3 circumstances in which an Adoption order can be made
- The Court is satisfied that each parent or Guardian consents to the making of an Order or that their consent should be dispensed with
- The child is free for adoption
- The Court is satisfied that the child was placed for adoption by a Local Authority with the prospective Adopters either with the consent of each parent or Guardian when the child was at least 6 weeks old or a Placement Order has been made no parent or Guardian has been given leave to oppose an Adoption Order
The Court can only make an Adoption Order where it considers that doing so is better for the child than not doing so.
An Adoption Order
- ends all parental responsibility of any person or Local Authority leaving the Adopters with sole parental responsibility
- ends any Care Order, Contact Order, Residence Order, Placement or Special Guardianship Order
Timing of the Application
The timing of the Application will depend on the nature of the placement. In Local Authority Adoptions the Adopters can apply for an Order after the child has lived with them for at least 10 weeks.
In non Agency Adoptions the time for which the child must have lived with the Applicants varies
- Partner Adoptions – 6 months
- Local Authority Foster Carers – 12 months
- Relatives – 3 years
- Inter-country Adopters – 6 months if they have complied with Regulations, 12 months if not
- Other non-related persons such as private Foster Carers – 3 years
- A Court can allow Applications to be made earlier where a Local Authority is not involved.
Non-Agency Adopters must give Notice to the Local Authority of their intention to apply for an Adoption Order. The minimum Notice period is 3 months and the maximum Notice period is 2 years.
Consent in Local Authority Adoptions
If a Placement Order has been made parents and Guardians will only be able to oppose the making of an Adoption Order if the Court allows them to. Permission will only be granted if the Court is satisfied that there has been a change in circumstances and that giving permission is in the interests of the child.
Dispensing with Consent
In any case where relevant permission has been given by the Court but the parents do not consent the prospective Adopters must ask the Court to dispense with parental consent on one of the following grounds
- the parent or Guardian cannot be found or is incapable of giving consent or
- the welfare of the child requires the consent to be dispensed with
It is for the Applicant to establish that the grounds for dispensing with consent have been established.
Where the Adoption is contested the Children’s Guardian’s advice to the Court as to whether the welfare of the child demands that parental consent be dispensed with is a crucial issue and safeguard for the child. The Guardian will deal with 5 issues
- is the paramount factor in the Court’s decision the child’s welfare throughout its life
- has the Welfare Checklist been applied
- what arrangements, if any, are necessary for Contact
- is the Order necessary and proportionate
- would any other Order adequately promote the welfare of the child
The Child & the Proceedings
A child will only be a party to the Proceedings when
- permission has been granted by a Court for parents or Guardians to oppose the making of the Adoption Order
- the child opposes the making of the Adoption Order
- the child is already an adopted child
- a Child & Family Reporter advises that it is in the best interests of the child and the Court agrees
- the prospective Adopters are relatives of the child other than a Partner of a birth parent
- any party to the Proceedings or the child opposes the arrangements for allowing proposed Contact with the child after the making of the Adoption Order
When a child is made party to the Proceedings a Children’s Guardian will be appointed unless the Court believes it is not necessary so as to safeguard the interests of the child. The Guardian’s primary role is to safeguard the welfare of the child.
The Guardian must appoint a Solicitor to represent the child unless a Solicitor has already been appointed and in any event must instruct the Solicitor on all matters relevant to the interests of the child.
The Court must consider Contact arrangements before an Order is made and hear the views of all Parties. The Guardian’s views on any proposed arrangements must be expressed.
After the Adoption Contact can be
- Indirect: exchange of information such as letters, photographs through a letter box service
- Direct: a face to face meeting, phone calls or other electronic communications
Separate Legal Representation for the Child
Before this can be allowed the child’s Solicitor must take account of the views of the Guardian and any Directions by the Court and if it is then believed that
- the child wishes to give instructions which conflict with those of the Guardian and
- the child has sufficient age and understanding to give those instructions
the Solicitor can conduct the Proceedings on the basis of instructions received from the child. The Guardian may then apply to be legally represented.
The Guardian will ensure that arrangements are made to inform the child of the Court’s final decision and to explain that to the child. This last Meeting between the Guardian and the child also gives the child an opportunity for closure and to say “goodbye.”
These are complex issues that arise at a time that is often emotionally fraught for all those involved. If you need advice on this or any other aspect of the Law relating to caring for Children, we have a dedicated Team specialising in all areas of Children Law. Please contact us for more detailed advice.