Adoption: Key Principles - BPRO€¦ · Adoption: Key Principles D[11] ‘To that the answer is always the same – and it is always a good one – adoption gives us total security

CHILDREN LAW AND PRACTICE Update 87 D–1

Adoption: Key Principles D[2]–[3]

Section 1

Adoption: Key Principles

1 DEFINITIONS

Adoption

Under the Adoption and Children Act 2002 (ACA 2002), Ch 4 (which provides for the status of adopted children in England and Wales) ‘adoption’ means:1

(1) adoption by an adoption order, or a Scottish or Northern Irish adoption order;(2) adoption by an order made in the Isle of Man or any of the Channel Islands;(3) a ‘Convention adoption’;2

(4) an ‘overseas adoption’;3

(5) an adoption recognised by the law of England and Wales and effected under the law of any other country.

The President’s Guidance Listing Final Hearings in Adoption Cases4 provides a succinct overview of the scope and operation of ACA 2002.

1 ACA 2002, s 66(1).2 For ‘Convention adoption’, see [700].3 For ‘overseas adoption’, see ACA 2002, s 87 and [687].4 See Division I, Section 1.

Adoption order

An adoption order is an order giving parental responsibility for a child to the adopters, made on their application to a court.1 At the same time, the making of an adoption order operates to extinguish permanently the parental responsibility which any person had for the child immediately before the making of the order.2 An adoption order is irrevocable, save in the very restricted circumstances of ACA 2002, s 55 (revocation upon subsequent legitimation).3

The child is deemed to be the adopter’s legitimate child, as if he had been born to either the adoptive couple,4 or to the single adopter.5 If adopted by a couple, or a single adopter who is the partner of a parent of the child, the child is to be treated as the child of the relationship of the couple in question.6

Adoptive parents are thus treated in law as the child’s parents save that an adoptive parent cannot be guilty of an offence under Sexual Offences Act 2003 (SOA 2003), ss 64 or 65 (sex with an adult relative).7 An adoption order does not of itself confer citizenship or a right to remain in the UK.8

The making of an adoption order also terminates any ‘family life’ rights under ECHR, Art 8 that may have existed between a child and her natural parents.9

The law relating to adoption, which is entirely born out of statute, sets out to bring about security and stability for the child by irrevocably10 altering the rights and duties of the adults involved in order to consolidate the child in his new adoptive family. Adoption first became legally available in England and Wales in 1926.11 There is no procedure for adoption under the common law,12 however, the common law does give recognition to some foreign adoptions.13 As from 30 December 2005 the applicable legislation is that contained in ACA 2002 and related subordinate legislation.14

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1 ACA 2002, s 46(1); for full ‘effect of adoption order’, see [600].2 Ibid, s 46(2).3 For revocation of an adoption order by legitimation, see [631].4 For ‘couple’, see [58].5 ACA 2002, s 67(1), and see Secretary of State for Social Services v Smith [1983] 3 All ER

173.6 Ibid, s 67(2).7 ACA 2002, s 74 (as amended).8 For a detailed analysis of the legal effects of an adoption order, see [615].9 Seddon v Oldham MBC [2015] EWHC 2609 (Fam), [2016] Fam 171, [2016] 2 FLR 87.10 Save for revocation upon subsequent legitimation, see ACA 2002, s 55, discussed at [631].11 Adoption of Children Act 1926.12 R v Secretary of State for The Home Department ex parte Brassey and Another [1989] 1 FCR

423, [1989] 2 FLR 486.13 For common law recognition of foreign adoptions, see [682].14 For transitional provisions relating to the repeal of the AA 1976, see [900].

Adoption is the legal process by which a child becomes a permanent and full member of a new family. Long-term foster care has disadvantages which may arise from the possible change of carers, of social workers, or of plans for the child, all of which may erode the child’s sense of stability and security. Consequently, long-term fostering fell from favour as the preferred social work option for most children in long-term care.1 Adoption has become the goal which is sought for most children who require a permanent family placement away from their natural parents. In addition to public law cases, adoption orders may be made with respect to a natural parent of the child and/or the parent’s partner.2

The Care Planning, Placement and Case Review (England) Regulations 2010 (as amended) define a ‘long term foster placement’ as:

‘an arrangement made by the responsible authority for C [a child] to be placed with F [a foster carer] where –

(a) C’s plan for permanence is foster care,(b) F has agreed to act as C’s foster parent until C ceases to be looked after,

and (c) the responsible authority has confirmed the nature of the arrangement to

F, P [C’s parent] and C.’3

There is no similar definition in the Care Planning, Placement and Case Review (Wales) Regulations 2015.4

1 See the seminal work by Rowe and Lambert, Children Who Wait (Association of British Adoption Agencies, 1974).

2 For an informative general introduction to the history and uses of adoption, see Cretney, Family Law in the 20th Century (OUP 2003), Chapter 17 and Bridge and Swindells, Adoption: The Modern Law (Family Law 2003), Chapters 1 to 5.

3 CPPCR(E)R 2010, reg 2(1) (as amended by the Care Planning and Fostering (Miscellaneous Amendments) (England) Regulations 2015, SI 2015/495); for ‘long term fostering’, see F[225A].

4 SI 2015/1818 (W. 261).

In Re H (Adoption: Parental Agreement),1 Ormrod LJ answered the question: ‘What do the adoptive parents gain by an adoption order over and above what they have already got on a long-term fostering basis?’

He said:

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‘To that the answer is always the same – and it is always a good one – adoption gives us total security and makes the child part of our family and places us in parental control of the child; long-term fostering leaves us exposed to changes of view of the local authority, it leaves us exposed to applications, and so on by the natural parent. That is a perfectly sensible and reasonable approach; it is far from being only an emotive one.’

This passage was quoted with approval by Lord Ackner in the House of Lords in Re C (A Minor) (Adoption Order: Conditions).2

1 (1982) 3 FLR 386.2 [1988] 1 FCR 484, [1988] 2 FLR 159 at 168G.

In Re V (Long-Term Fostering or Adoption),1 Black LJ offered a non-exhaustive list of the material differences between long-term fostering and adoption, which mean that the two forms of placement cannot be equated in terms of the security that they offer:

– adoption makes the child a permanent part of the adoptive family to which he or she fully belongs (and it is therefore likely to ‘feel’ different from fostering to the child);

– adoption is for all time, whereas a parent may always apply to discharge a care order;

– contact in the context of adoption is a different matter to contact under a care order;

– once an adoption order is made, the local authority will have no role in the routine life of the child.

1 [2013] EWCA Civ 913, [2013] 3 FCR 407, [2014] 1 FLR 1009.

In Re LRP (Care Proceedings: Placement Order),1 Pauffley J described long-term fostering as ‘an extraordinarily precarious legal framework for any child’, which she explained by saying:

‘Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long-term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long-term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the [context of Re LRP], a long-term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long-term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted.’

1 [2013] EWHC 3974 (Fam), [2014] 2 FLR 399.

Convention and non-Convention adoptions

With effect from 1 June 2003 the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption was ratified and implemented in England and Wales. Adoptions that are regulated by the 1993 Hague Convention are known as ‘Convention adoptions’ and are discussed in detail at [700]. All other references in this Division relate to non-Convention proceedings.

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Transitional provisions

As from 30 December 2005, ACA 2002 repealed and replaced the statutory adoption scheme under the Adoption Act 1976 (AA 1976), save for AA 1976, Pt IV (relating to the status of children adopted prior to the implementation of ACA 2002). The transitional provisions are described in detail in Section 7 of this Division at [900].

2 THE WELFARE OF THE CHILD

The paramountcy principle

Whenever a court or adoption agency is coming to a decision relating to the adoption of a child, the paramount consideration must be the child’s welfare throughout his life.1 The circumstances in which the paramountcy principle applies include those where the issue is whether or not to dispense with parental consent to placement and/or adoption.2

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.3 In placement order or adoption proceedings, the court is under a duty to draw up a timetable and give directions with a view to determining the issues without delay.4

The court or adoption agency must also have regard to the adoption ‘welfare checklist’, among other factors:5

(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding);

(b) the child’s particular needs;(c) the likely effect on the child (throughout his life) of having ceased to be a

member of the original family and become an adopted person;(d) the child’s age, sex, background and any of the child’s characteristics which

the court or agency considers relevant;(e) any harm (within the meaning of the Children Act 1989 (CA 1989)) which the

child has suffered or is at risk of suffering;(f) the relationship which the child has with relatives, with any person who is a

prospective adopter with whom the child is placed, and with any person in relation to whom the court or agency considers the question to be relevant including:(i) the likelihood of any such relationship continuing and the value to the

child of its doing so;(ii) the ability and willingness of any of the child’s relatives, or of any such

person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs;

(iii) the wishes and feelings of any of the child’s relatives or of any such person regarding the child.

In addition, in Wales (but not in England after 25 July 2014), in placing a child for adoption, the agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.6

Finally, the court or agency must always consider the whole range of powers available to it in the child’s case; and the court must not make any order under ACA 2002 unless it considers that making an order would be better for the child than not doing so.7

1 ACA 2002, s 1(1), (2).2 Ibid, s 1(7).3 Ibid, s 1(3); for ‘delay prejudicial to welfare’, see B[180].

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4 Ibid, s 109(1); FPR 2010, Part 1 and r 14.8.5 Ibid, s 1(4); for specific elements in the adoption ‘welfare checklist’, see [23]–[30]; for more

detailed discussion of welfare checklist elements, see B[197]–[229].6 Ibid, s 1(5), repealed in England with effect from 25 July 2014 by CFA 2014, s 3; for

religious, racial and cultural considerations generally, see [31].7 Ibid, s 1(6); for ‘no order principle’, see [33].

The welfare interests of an individual who is the subject of an adoption application that are covered by ACA 2002, s 1(2) are to be given a wide interpretation and are not limited to emotional factors; they plainly include those matters that may occur during childhood but affect him in later life.1 Where a child may achieve British citizenship as a consequence of being adopted, this factor may properly be taken into account when assessing welfare.1 A person over the age of 18 years will not acquire British citizenship on adoption by the operation of the British Nationality Act 1981, s 1(5).1

1 FAS v Secretary of State for the Home Department and Another [2015] EWCA Civ 951, [2016] 1 FCR 191, [2016] 2 FLR 1035.

THE BALANCING EXERCISE

The balancing exercise required by ACA 2002, s 1 does not differ in substance from the exercise undertaken to ensure that a decision is compatible with ECHR Art 8:1 a conclusion that an adoption order is in the best interests of a child identifies the pressing social need for adoption (the need to safeguard and promote the child’s welfare) and represents the court’s considered view on proportionality.

While a judge is not required to make explicit reference in every case to the elements within the relevant welfare checklist, it is important for a judge to demonstrate that he or she has the relevant factors in mind and has conducted an analysis that is compatible with the law, including the welfare checklist.2 Where there is a real balance to be struck between two or more options it is wise for a judge to ground their conclusions by reference to the factors in the checklist and, in an adoption case, in particular ACA 2002, s 1(4)(c) and (f), which indicate the choice to be made between severing the relationships with the natural family and the child going on to form a new life as an adopted child in a totally different family.

It is important not to elide the CA 1989, s 1(3) checklist with that in ACA 2002, s 1(4); each has a distinct focus and should be considered separately.3

4 Re B (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 FCR 150, [2002] 1 FLR 196.5 Re E (Adoption Order: Proportionality of Outcome to Circumstances) [2013] EWCA Civ

1614, [2014] 3 FCR 240, [2014] 2 FLR 514.6 Re M’P-P (Adoption Proceedings: Value to be Placed on Status Quo) [2015] EWCA Civ

584, [2015] 2 FCR 451.

The Court of Appeal decision in Re B-S (Children) (Adoption: Leave to Oppose)1 draws upon contemporary authority on the correct approach to the welfare determination in an adoption, or placement for adoption, application. Giving the judgment of the court (which included Lord Dyson MR and Black LJ), Sir James Munby P stressed the following three points drawn from the Supreme Court decision in Re B (A Child):2

(1) although the child’s interests are paramount, a court must never lose sight of the fact that those interests include being brought up by the natural family, unless the overriding requirements of the child’s welfare make that not possible (Re B-S, paragraph 27);

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(2) the court must consider all of the available options before coming to a decision (paragraph 28); and

(3) the court’s assessment of a parent’s ability to provide good enough care for a child must take into account the assistance and support which the authorities would offer (paragraph 29).

The court in Re B-S held that the following two elements are ‘essential’ when a court is being asked to approve a care plan for adoption and being asked to make a non-consensual placement order or adoption order:

(1) there must be proper evidence from the local authority and from the children’s guardian which addresses all the options which are realistically possible and which contains an analysis of the arguments for and against each option; and

(2) there must be an adequately reasoned judgment by the judge.

In explaining what is required in the first essential element, the court held that there was a particular need for ‘analysis of the pros and cons’ and ‘a fully reasoned recommendation’ within the local authority evidence, which might be set out in a ‘balance sheet’ of the type described by Thorpe LJ in Re A (Male Sterilisation).3

The context of the second essential element, an adequately reasoned judgment, the court in Re B-S endorsed the need for judges to avoid a ‘linear’ analysis (as described by McFarlane LJ in Re G4) in favour of a ‘global, holistic evaluation’ of the options available for the child. Express endorsement was given to the following two extracts from the judgment in Re G:4

‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

A process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is “the most draconian option”, yet does not engage with the very detail of that option which renders it “draconian” cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the “draconian” nature of permanent separation of parent and child and they frequently do so in the context of reference to “proportionality”. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.’

The word ‘holistic’ is intended to encapsulate what seasoned family lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach, which only considers individual components in isolation.5

The judgment in Re B-S, which was given in the run-up to the implementation of extensive family justice reform in April 2014, expressly holds that the two essential


Adoption: Key Principles D[20AA]

elements described are compatible with those reforms, notwithstanding the move to a 26-week timetable for public law cases. Where, despite focused case management directions, the court does not have the kind of evidence described as essential in Re B-S it will not be properly equipped to decide these important issues and the case must be adjourned, even where this will cause the timetable to exceed 26 weeks.6

1 [2013] EWCA Civ 1146, [2013] 3 FCR 481, [2014] 1 FLR 1035.2 [2013] UKSC 33, [2013] 2 FCR 525, [2013] 2 FLR 1075.3 [2000] 1 FCR 193, [2000] 1 FLR 549.4 [2013] EWCA Civ 965, [2013] 3 FCR 293, [2014] 1 FLR 670.5 Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, [2016] 2 FCR 368,

[2017] 1 FLR 979.6 See, eg Re P (A Child) (Care and Placement Orders) [2018] EWCA Civ 1483, [2018] Fam

Law 1107.

PROPORTIONALITY

The key to the court’s approach to the child’s welfare (as well as to whether or not to dispense with parental consent) is proportionality.1 The phrase ‘nothing else will do’ used in judgments in the Supreme Court in Re B (Care Proceedings: Appeal)2 is not a substitute for undertaking a full welfare analysis required by ACA 2002, s 1.3

Under ECHR law, adoption against the will of a parent should only be applied ‘in exceptional circumstances and could only be justified if … motivated by an overriding requirement pertaining to the child’s best interests’.4

What is a proportionate approach will vary depending on the nature of the proposed adoption. Where a baby has been relinquished by her parents with the express request that she be adopted, an adoption order will represent a less significant interference with family life rights than in a case where the child’s ties with the birth family are to be severed against the wishes of the parents. In such a case it is therefore not necessary to show that ‘nothing else (other than an adoption order) will do’.5 It is nevertheless, however, still necessary to carry out a ‘thorough analysis of the realistic options for the child’.6

At the stage of considering a placement order application, when assessing the options for a child’s future, the court must take account of known factors relevant to the child’s welfare, for example that adopters of one of his siblings would apply to adopt him,7 but the court must be careful not to be drawn into an overall evaluation of a prospective adoptive home against rehabilitation or family placement.8

A proportionality assessment should involve a careful consideration of the Article 8 rights which are at risk of interference. In Re A (A Child),9 a case where the realistic options were a placement with a foster carer in the UK (which offered ongoing contact with the child’s parents and siblings) and a placement with wider family members in Ghana, Peter Jackson LJ said:

‘Without deciding the matter, it would seem that David has “family life” with his foster carer, qualified by the fact that she has been a professional carer providing a neutral, holding placement. He also has important family life rights with his parents, grandmother and siblings. As to the H’s, they are the only viable placement within his birth family, but he has never met them, and he might therefore be said to have a right to private life in their regard with the potential for it to develop into family life if he was placed with them. It is therefore important to identify not only what rights are engaged but also their short, medium and long-term significance, before going on to consider the justification for any proposed interference. This exercise is of particular importance when the choice is between a placement with relatives and a placement outside the family, certainly where the decision is finely balanced.’

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An assessment of the proportionality of a plan for adoption within care proceedings requires an intense focus on the type of harm that might be caused to the child; the likelihood of the harm arising; the consequences if it does; and what can be done to reduce or mitigate the risk.10

1 Re P (Step-Parent Adoption) [2014] EWCA Civ 1174, [2014] 3 FCR 193, [2015] 1 FLR 1327; see [64].

2 [2013] UKSC 33, [2013] 2 FCR 525, [2013] 2 FLR 1075.3 Re W (Adoption: Approach to Long-Term Welfare) [2016] EWCA Civ 793, [2017] 2 FLR 31.4 Strand Lobben v Norway (Application No 37283/13) [2020] 1 FLR 297 (Grand Chamber).5 Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam), [2017] 1 FLR

1545, [2016] 4 WLR 40.6 Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam), [2017] 1 FLR

1545, [2016] 4 WLR 40; Re RA (Baby Relinquished for Adoption – Case Management) [2016] EWFC 25, [2017] 1 FLR 1610, [2016] 4 WLR 104. See also [258].

7 Re B (A Child) (Care Proceedings) [2018] EWCA Civ 20, [2018] 1 FCR 389, [2018] 2 FLR 1.

8 Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2016] 1 FCR 521, [2017] 1 FLR 330.

9 [2018] EWCA Civ 2240, [2019] 1 FCR 105.10 Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, [2019] 1 FCR

432, [2019] 1 FLR 779.

REALISTIC OPTIONS

In Re R1 the Court of Appeal gave guidance as to the interpretation and application of its earlier decision in Re B-S (Children) (Adoption: Leave to Oppose).2 Sir James Munby P emphatically stressed that the decision in Re B-S was not intended to change the law on adoption or to impose a higher threshold than had hitherto been applied. Where adoption is in a child’s best interests, local authorities should not shy away from applying for a placement for adoption order; the key principle for a local authority and for the court is that the child’s welfare is the paramount consideration following evaluation in the context of the welfare checklist in ACA 2002, s 1(4).3

The Court of Appeal stressed in Re R1 that the decision in Re B-S was focused upon practice as opposed to the substantive law and endorsed the following approach described by Ryder LJ in Re Y (Care Proceedings: Proportionality Evaluation):4

‘The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified.’

The requirements of Re B-S apply to the ‘realistic’ options before the court. ‘Realistic’ is an ordinary English word and requires no elaboration. Where, at an early stage in the proceedings, but after proper evaluation, the court can determine that one or more possible option is not realistic, it may be ruled out from further consideration at that stage, even if that option is the prospect of return to parents.1 In Re R1 Sir James Munby P stated:

‘Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out. North Yorkshire

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County Council v B5 is still good law. So the possibility exists, though judges should be appropriately cautious, especially if invited to rule out both parents before the final hearing or, what amounts to the same thing, ruling out before the final hearing the only parent who is putting themself forward as a carer.’

In Re S (Care Proceedings: Evaluation of Grandmother),6 McFarlane LJ said:

‘For an option to be regarded as not realistic requires the court to be in a position of some confidence and clarity that the option is plainly not one that would have any real prospect of being chosen if a full welfare evaluation of all the pros and cons were undertaken.’

In Re W-C7 the Court of Appeal held that the issue of whether or not an option is ‘realistic’ should be dealt with as early as possible in the proceedings; where placement with a parent remains a live issue at the final hearing it is wrong for the court to fail to undertake a full welfare evaluation of that option. McFarlane LJ referred to the discussion in the President’s judgment in Re R regarding the identification of ‘realistic’ options, and highlighted two aspects of the President’s judgment:

‘I would stress two aspects of what is said there. Firstly, at paragraph 59 Sir James identifies that the issue of what is or what is not a “realistic” option should have been “properly evaluated, typically at an early stage in the proceedings”. Secondly, at paragraph 62 where he advises that it will only be occasionally that the court is left with just one “realistic” option to consider, and this will arise in “comparatively rare cases”.’

Finally, in Re R1 both the President and McFarlane LJ offered further explanation of the ‘linear’ process, which, following Re B-S, is to be avoided in favour of an overall welfare balance of the realistic options by endorsing the following words of McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation):8

‘In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge’s judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’

Care must however be taken not to rule out an option at an inappropriately premature stage; there is a distinction to be drawn between proper case management and premature jumping to conclusions prior to submission of evidence.9

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In carrying out the balancing exercise required by Re B-S, particularly where the parents are not participating in the proceedings or are acting in person, the court must be alert to options for the child that have not been put forward by any party.10

1 [2014] EWCA Civ 1625, [2015] 2 FCR 499, [2015] 1 FLR 715.2 [2013] EWCA Civ 1146, [2013] 3 FCR 481, [2014] 1 FLR 1035.3 [2014] EWCA Civ 1625, [2015] 2 FCR 499, [2015] 1 FLR 715; Re S (A Child) [2015]

EWCA Civ 489, [2015] All ER (D) 147 (May).4 [2014] EWCA Civ 1553, [2015] 2 FLR 615.5 [2008] 1 FLR 1645.6 [2015] EWCA Civ 325, [2016] 3 FCR 611, [2016] 1 FLR 109.7 [2017] EWCA Civ 250.8 [2013] EWCA Civ 965, [2013] 3 FCR 293, [2014] 1 FLR 670.9 Re P (Care Proceedings: Kinship Placement: Appeal) [2014] EWCA Civ 888, [2014] 3 FCR

349; KS v Neath Port Talbot Borough Council [2014] EWCA Civ 941, [2014] Fam Law 1396; Re Q (Fact-Finding Hearing: Apparent Judicial Bias) [2014] EWCA Civ 918, [2014] 3 FCR 517; Re S (A Child) (Adoption: Evaluation of Realistic Options) [2015] EWCA Civ 325, [2016] 3 FCR 611, [2016] 1 FLR 109.

10 Re Y (Children: Care: Placement Order) [2016] EWCA Civ 1091, [2017] Fam Law 37.

Where a placement for adoption order is made, the implementation of the plan for the child is a matter for the local authority and not for the court; thus, where a local authority intend, for example, to spend a limited period searching for an adoptive placement before implementing a contingency plan of long-term fostering (ie operating a dual or twin-track plan), that situation should not influence the court’s determination of whether or not the primary plan for adoption is necessary in terms of the child’s welfare.1

1 CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479, [2015] 2 FCR 116, [2015] 2 FLR 290.

CHILD’S WELFARE THROUGHOUT HIS LIFE

Unlike the companion provision in CA 1989, s 1(1), which requires the child’s welfare to be the court’s paramount consideration when it determines any question with respect to a child’s upbringing, ACA 2002, s 1(1) and (2) require that paramount consideration be given to the child’s welfare ‘throughout his life’ when coming to a decision relating to adoption.

In D McG v Neath Talbot County Borough Council,1 Wilson LJ held that so drastic a step as making a placement for adoption order should only be undertaken when all avenues towards rehabilitation have reasonably been explored.

Under the earlier law, a benefit arising from adoption which might accrue to the child after the age of 18 was a relevant factor to be taken into account in deciding whether to make an adoption order.2 However, the new test imposed by ACA 2002, s 1 does not alter the court’s approach to applications for adoption orders that are made wholly or mainly for the purpose of conferring citizenship on the adopted person.3

1 [2010] EWCA Civ 821, [2010] 3 FCR 100, [2010] 2 FLR 1827.2 Re D (A Minor) (Adoption Order: Validity) [1991] Fam 137, [1991] 1 FCR 521, [1991]

2 FLR 66.3 FAS v Bradford Metropolitan District Council and Another [2015] EWHC 622 (Fam), [2015]

3 FCR 119, approving Re B (A Minor) (Adoption Order: Nationality) [1999] 2 AC 136.

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WISHES AND FEELINGS

If the child is old enough to understand the broad implications of adoption, the court will require some fairly clear reason to justify proceeding against his expressed wishes and feelings.1 As the trend is towards the adoption of older children, ACA 2002, s 1(4)(a) is likely to become of key importance, particularly in those cases where the child has a strong sense of identity with his natural family.

1 Ormrod LJ in Re D (Minors) (Adoption by Step-parent) [1981] 2 FLR 102 at 105D.

CEASING TO BE A MEMBER OF THE ORIGINAL FAMILY AND BECOMING AN ADOPTED PERSON

ACA 2002, s 1(4)(c) requires the court or agency to project its consideration throughout the child’s life. It has a twofold focus:

(1) ceasing to be a member of the original family; and(2) becoming an adopted person.

On adoption the cessation of membership of the original family is total and intended to be so for all time. The original parents’ parental responsibility is extinguished and there is a complete severing of all legal ties with the family.1 The cut off from his family of origin may have a potentially damaging impact on the child’s sense of identity and emotional wellbeing.

‘Becoming an adopted person’ provides for the child a permanent substitute family, where the adopters are legally responsible and, therefore, fully committed to fulfilling their parental responsibilities.

In focusing upon the likely effect on the child of these changes, the court or adoption agency will be focusing upon the degree of interference with the child’s ECHR Art 8 rights to family life that would be consequent upon an adoption. This will have to be balanced against the family life that the child is, or will be, enjoying with the adoptive family.

1 For effects of adoption, see [615].

In Re M (Adoption or Residence Orders)1 Ward LJ described the issues involved in considering adoption for a child:

‘The legal nature and effect of an adoption order is … [that]… it changes status. The child is treated in law as if she had been born a child of the marriage of the applicants. She ceases in law to be a child of her mother and the sister of her siblings. The old family link is destroyed and new family ties are created. The psychological effect is that the child loses one identity and gains another. Adoption is inconsistent with being a member of both old and new family at the same time. Long-term fostering does enable the child to have the best of both worlds by feeling she belongs to both families though she must reside with … only one.

The significant advantage of adoption is that it can promote much-needed security and stability, the younger the age of placement, the fuller the advantage. The disadvantage is that it is unlike any other decision made by adults during a child’s minority because it is irrevocable. The child cannot at a later stage even in adulthood reverse the process. That is a salutary reminder of the seriousness of the decision. The advantage of the care/residence order is the converse – it can be adapted to meet changing needs, but therein lies its disadvantage – it does not

[23]– [24]

[25]– [26]

[27]



provide absolute certainty and security. Children Act 1989, s 91(14) minimises, if not eliminates, the uncertainty.

In weighing up these considerations, the court must have an eye to the realities of the child’s situation, bearing in mind the torture of adolescence through which the child must live, finding and then asserting the independence of growing adulthood. When times are bad – and it would be surprising if there were not such times – it will be the emotional attachment forged between the adopters and the child, not that piece of paper entitled ‘adoption order’, which will prevent a disaffected child searching for a grass which will always seem so much greener in the pastures occupied by the old family.’

1 [1998] 1 FCR 165, [1998] 1 FLR 570 at 589.

RELATIONSHIP WHICH THE CHILD HAS WITH RELATIVES

ACA 2002, s 1(4)(f) requires a court or adoption agency to consider the child’s existing family relationships to a degree and in a manner which is not expressly required by the companion welfare checklist in CA 1989, s 1(3).

The court or agency is required to consider ‘the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any person in relation to whom the court or agency considers the question to be relevant’.1 A ‘relative’ in relation to a child means a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage or civil partnership.2 For the purposes of ACA 2002, s 1, a ‘relative’ includes the child’s mother and father.3 The pool of relationships is not confined to relatives, but will include any de facto relationships considered to be of importance; on the facts of a particular case this might include foster-parents, or prospective adopters with whom the child is living.4

The reference to ‘prospective adopters’ was included in s 1(4)(f) by amendment with effect from 31 October 2017.5

In Re M’P-P (Adoption Proceedings: Value to be Placed on Status Quo),6 the Court of Appeal held that a judge was in error in not having regard to the importance of the ‘status quo’ established between two children and the foster carer that they had had effectively since birth, who was ‘person’ within the meaning of s 1(4)(f). In Re W (Adoption: Approach to Long-Term Welfare)7 McFarlane LJ held that it was ‘self-evident’ that a prospective adopter with whom the child was placed would automatically be ‘any other person’ within the meaning of s 1(4)(f). Such a person will have the child committed to their care ‘for the express purpose of establishing themselves in the important, if not the most important, relationship of parent to the child both in reality and, if the anticipated adoption takes place, in law’.

The welfare checklist applies to any decision relating to adoption, therefore consideration of existing relationships (particularly between siblings) is likely to be very important in the context of any proposed contact arrangements.8

Where a child may be adopted by a natural relative the ‘skewing’ or ‘distorting’ of the familial relationships is a matter that must be considered under s 1(4)(f), but the weight to be given to it will depend on the facts.9

In Re TJ (Relinquished baby: sibling contact),10 Cobb J determined that the local authority was not required to serve the family of an older half-sibling with notice of the subject child’s placement for adoption, holding that in that case the risks of disruption to the adoptive placement outweighed the benefits of limited ‘identity’ contact.

1 ACA 2002, s 1(4)(f).

[28]– [29]



2 Ibid, s 144(1).3 Ibid, s 1(8)(b).4 Re W (Adoption: Approach to Long-Term Welfare) [2016] EWCA Civ 793, [2017] 2 FLR 31.5 Children and Social Work Act 2017, s 9; Children and Social Work Act 2017 (Commencement

No 1) Regulations 2017.6 [2015] EWCA Civ 584, [2015] 2 FCR 451.7 [2016] EWCA Civ 793, [2017] 2 FLR 31.8 For ‘contact after adoption’, see [605].9 Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54, [2007] 1 FCR

271, [2007] 1 FLR 819.10 [2017] EWFC 6, [2017] Fam Law 372.

In the context of ACA 2002, s 1(4)(f) the court or adoption agency must consider:

(1) the likelihood of any such relationship continuing and the value to the child of its doing so;

(2) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs; and

(3) the wishes and feelings of any of the child’s relatives or of any such person regarding the child.

These factors embrace consideration of:

– the value to the child of a continuing relationship with his relatives or any prospective adopters with whom he is placed (and any other person who is important to the child); and

– the wishes and feelings of those relatives, prospective adopters or others of importance.

Again, within the pool of possible relationships, particular importance is likely to be given to relationships between siblings.

ACA 2002, s 1(4)(f)(ii) contains a statutory requirement for an assessment by the adoption agency, and ultimately the court, of the capacity and willingness of relatives, prospective adopters, or others to provide a long-term home for the child. The type and degree of assessment required will no doubt vary from case to case.

Religion, race and culture

The requirement contained in ACA 2002, s 1(5) for an adoption agency that is placing a child for adoption to give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background has been repealed in England with effect from 25 July 2014. The provision remains in effect in Wales.1 However, in Re N (Adoption: Jurisdiction),2 Sir James Munby P stressed that, in a case involving a child who is a foreign national, those parts of the welfare checklist that focus attention on the child’s national, cultural, linguistic, ethnic and religious background must be given most careful consideration. The court will also need to consider whether any English adoption order will be recognised in the child’s home country.2 The fact that such an order will not be recognised, and may cause the child difficulties in travelling freely to and from her home country, is a relevant consideration but not determinative and should not prevent an adoption order being made where the child’s welfare requires it.3

Prior to ACA 2002 coming into effect, the courts had considered on a number of occasions the issues that arise when a child is from a different racial, cultural or religious background to the prospective adopters. The extent to which the following authorities remain relevant in England, following the repeal of ACA 2002, s 1(5), will

[30]

[31]– [32]



need to be determined. Under the earlier law, in a case where the child was not of the same racial, cultural or religious background as the proposed adopters, a parent might object to the adoption.4 Whether that objection was ‘unreasonable’ (a ground under AA 1976 for dispensing with parental consent) depended upon the whole circumstances of the case. Objection on the ground that the adopters were of a different racial background to the child and were also Jehovah’s Witnesses was held not to be unreasonable.5 In Re N (A Minor) (Adoption),6 Bush J decided that adoption was not in the best interests of a Nigerian child who had been placed at the age of three weeks with white foster-parents; the judgment helpfully reviews the issues which occur in trans-racial applications.

Adopters need to be sufficiently sensitive to assist a child to understand and take pride in all the elements of her background.7 Where a child’s heritage is very mixed, it will rarely be possible for it all to be reflected in the make-up of the adoptive home.

Issues relating to religion are of importance, however the court must afford paramount consideration to the child’s welfare and the circumstances may dictate that the child’s welfare requires a course which does not accord with the parent’s religious wishes.8 Despite the respect given under the ECHR to private and family life, to freedom of thought, conscience and religion and any individual belief system, the law does not give religious belief or birthright a pre-eminent place in the welfare balance.9

A parent’s religious beliefs can never be determinative when considering the totality of a child’s welfare; a parent’s rights under ECHR, Art 9 are qualified by the child’s right to family life under Art 8.10

1 CFA 2014, s 2.2 [2015] EWCA Civ 1112, [2016] 1 FCR 217, [2016] 1 FLR 621.





3 Re N (Children: Welfare Decision) [2016] EWFC 44, [2017] 1 FCR 203; Re Z (A Child)(English Adoption: Egyptian Orphanage) [2016] EWHC 2963 (Fam), [2017] 4 WLR 20.

4 Generally, see ‘Achieving the Right Balance’ LAC (98)20.5 Re J (A Minor) (Wardship: Adoption: Custodianship) [1987] 1 FLR 455.6 [1990] 1 FLR 58; see also Re P (A Minor) (Adoption) [1990] 1 FLR 96 and Re JK (Adoption:

Transracial Placement) [1991] 2 FLR 340.7 Re C (Adoption: Religious Observance) [2002] 1 FLR 1119.8 Re E (An Infant) [1963] 3 All ER 874 (for a detailed description and quotation from this

authority, see A[5]); Re C (Adoption: Religious Observance) [2002] 1 FLR 1119.9 Haringey London Borough Council v C, E and Another Intervening [2006] EWHC

1620 (Fam), [2007] 1 FLR 1035.10 Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam), [2007] 1 FLR 861.

Whole range of powers and ‘no order’ principle

ACA 2002, s 1(6) provides that the court or adoption agency must always consider:

(1) the whole range of powers available to it in the child’s case (whether under ACA 2002 or CA 1989); and

(2) the court must not make any order under ACA 2002 unless it considers that making the order would be better for the child than not doing so.

WHOLE RANGE OF POWERS AVAILABLE

The requirement in ACA 2002, s 1(6) is upon the court and the adoption agency and applies throughout the course of ‘the child’s case’. The requirement is dynamic and wide-ranging; it applies ‘always’ and to the ‘whole range of powers available’. The relevant powers may change from time to time during the life of the child’s case. The care plan and the use of powers must be kept under active review throughout the agency and the court’s responsibility for the child’s case.

The range of options in a particular case may include:

(1) rehabilitation with birth parents;(2) placement with extended family members or friends;(3) child arrangements order (with or without a supervision order);(4) orders coupled with a restriction on further applications under CA 1989,

s 91(14);(5) special guardianship orders;(6) fostering or other accommodation under a care order; or(7) adoption:

(a) twin track planning, or concurrent planning;1

(b) placement agreement or placement order.

The approach to determining which of the spectrum of orders best meets a child’s needs was described by Ward LJ in Re M (Adoption or Residence Orders):2 it is essential to have regard to the nature and effect of each order and the advantages and disadvantages each brings to the safeguarding and promotion of the child’s welfare.

1 Re D and K (Care Plan) [1999] 2 FLR 872.2 [1998] 1 FLR 570 at 589.

‘NO ORDER’ PRINCIPLE

ACA 2002, s 1(6) provides that ‘the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.’

[33]

[34]– [35]

[36]– [40]



Whilst using different phraseology to CA 1989, s 1(5), this statement of the ‘no order’ principle is to like effect and encapsulates the ‘least interventionist’ approach and the principle of proportionality under the European Convention.1

1 For ‘duty not to intervene’, see B[236].

3 WHO CAN BE ADOPTED?

The statutory requirements which must be satisfied with respect to a child who is the subject of an adoption application relate to his:

– age (see [42]);– status (see [43]);– physical location (see [44]).

If the child is a ward of court,1 or has a domicile2 outside England and Wales, additional considerations apply.

1 See [47].2 See [46].

Age

An application for an adoption order may only be made in relation to a person who has not attained the age of 18 years at the date of the application.1 The time at which that age is attained is the commencement of the child’s eighteenth birthday.2

Provided that the order is made before he has attained 19 years, an adoption order may be made in respect to a person who attains the age of 18 during the currency of the proceedings.3

An adoption order can be made in relation to a young person in late teens, provided that the making of the order is in the interest of the child’s welfare, taking into account all the benefits that would inure beyond the child’s minority and for the rest of his life.4

1 ACA 2002, s 49(4).2 FLRA 1969, s 9(1).3 ACA 2002, s 47(9).4 Re D (A Minor) (Adoption Order: Validity) [1991] 2 FLR 66, ACA 2002, s 1.

Status

An adoption order may be made in relation to a child who is already an adopted child.1

An adoption order may not be made in relation to a person who is, or has been, married or a civil partner.2

1 ACA 2002, s 46(5).2 Ibid, s 47(8), (8A).

Location

The clarity provided by AA 1976, s 62 with regard to the jurisdiction of a court in England and Wales to make an adoption order is not replicated in the ACA 2002. By analogy with the position applying to proceedings under CA 1989, Pt IV, for the English court to have jurisdiction the child must either be habitually resident and present in England

[41]

[42]

[43]

[44]– [45]



or Wales, or simply physically present in England and Wales when the application is made.1 It is arguable that the court will also have jurisdiction with respect to a child who is habitually resident in England and Wales, but not present in the jurisdiction when the application is made.2

If the child is habitually resident outside the United Kingdom, the requirements of the Adoption (Bringing Children into the United Kingdom) Regulations 2003 (pre 30 December 2005) or the Adoptions with a Foreign Element Regulations 2005, Pt 2, Ch 1 (post 30 December 2005) must be satisfied before he is brought into the United Kingdom.

1 Re M (Care Orders: Jurisdiction) [1997] 1 FCR 109, [1997] 1 FLR 456 following Re R (Care Orders: Jurisdiction) [1995] 3 FCR 305, [1995] 1 FLR 711.

2 ACA 2002, s 83, see [773].

Domicile

Save for any requirement as to the physical location of the child, there is no statutory condition concerning the child’s residence, nationality or domicile.1 Where the child is domiciled abroad, the court will normally require evidence of the recognition any order would be afforded in the country of domicile.2

1 But see Adoptions with an International Element at [670]–[899]; for a definition of domicile, see [672].

2 Re B (S) (An Infant) (No 2) [1968] Ch 204.

Wards of court

A child who is a ward of court may not be placed for adoption or made the subject of adoption proceedings without the prior leave of the High Court.1

1 For adoption of a ward of court, see B[1100].

4 WHO CAN ADOPT A CHILD?

A child can be adopted either by a single person or by a couple (whether married or in a civil partnership or not and whether of different gender or the same gender).1 In each case there are specific requirements which must be satisfied before an adoption order can be made.

Since 19912 there have been no statutory restrictions affecting applications by relatives (other than the natural parents) or step-parents. However, special consideration may be necessary in a case involving a step-parent or relative because of the implications which may arise within a family in the event of an adoption order being made. In such a case the court may make a CA 1989, s 8 order rather than an adoption order, or in the case of relatives, a special guardianship order.

Particular consideration is given below to the position of the mother or father of a child as joint or sole applicants and a father without parental responsibility.

1 ACA 2002, ss 50, 51 and 144(4).2 CA 1989, Sch 15, repealing CA 1975 (custodianship) and AA 1976, ss 14(3), 15(4) (step-

parents).

Adoption by a couple

The provisions set out below relate to adoption by a couple neither of whom is a parent (including a father without parental responsibility) or step-parent of the child.1

[46]

[47]– [50]

[51]

[52]


D[52] Adoption

An adoption order may be made on the application of a couple if the following conditions are met:

– age (see [53]);– domicile or habitual residence (see [54]);– marriage or civil partnership (see [55]);– enduring family relationship (see [58]).

1 For parents, see [62]; for step-parents, see [63].

AGE

Each of the applicant couple must have attained the age of 21 years,1 except where one is the mother or father of the child.2

Whilst there is no legal upper age limit over which a court will refuse to make an adoption order, adoption agencies will not usually place a child with adopters where the age gap between the child and the adopters is more than 45 years unless the child has special needs.3 However, this is not inflexible and depends partly on what the adopters are offering in relation to the needs of waiting children. The average age of UK adopters is currently 38.

1 ACA 2002, s 50(1).2 See [62].3 Adopting a Child (BAAF, 2006).

DOMICILE

An application for an adoption order may only be made if one of the following two conditions is satisfied:1

(1) at least one of the couple must be domiciled2 in a part of the British Islands;3 or(2) both of the couple have been habitually resident4 in a part of the British Islands3

for a period of not less than one year ending with the date of the application.

In Re N (Children: Adoption: Jurisdiction)5 Munby P held that the ‘fundamental foundation’ for the court’s jurisdiction to hear an adoption application is the domicile or habitual residence of the adopter and no-one else.

The English/Welsh provisions relating to domicile and habitual residence are identical to those applicable to Scotland.6

An adopter who is domiciled and habitually resident in Scotland (being part of the British Isles) may have his adoption application heard and determined in England (as well as in Scotland).6

Different considerations apply if the application is for a Convention adoption order.7

Where the child has not been placed for adoption by an adoption agency there is an additional requirement that the child must have his home with the adopters, or at least one of them, within England and Wales.8 The Local Authority (Adoption) (Miscellaneous Provisions) Regulations 2005 provide for notice to be given to the authority where the adopter last had a home.

1 ACA 2002, s 49(2), (3).2 For definition of domicile, see [672].3 Ie the UK, the Channel Islands or the Isle of Man (Interpretation Act 1978, Sch 1).4 For definition of habitual residence, see G[150].5 [2015] EWCA Civ 1112.6 Re E (Scottish Adopters: English Adoption Proceedings) [2019] EWFC 9, [2019] 1 FCR 899.7 For Convention adoptions, see [700].8 ACA 2002, ss 42, 44; for ‘probationary period’ see [69E].

[53]

[54]



MARRIAGE OR CIVIL PARTNERSHIP

Where the applicants are married or in a civil partnership, the validity of their relationship is a factor which the court will consider. Documentary evidence of the marriage or civil partnership must be filed with the application.1 The adoption agency is required to report to the court upon the applicants’ marital or civil status and the stability of their relationship, together with details of any previous marriage.2

Where it remains in the child’s interest to do so, the court may make an adoption order in favour of married applicants where the couple have separated.3 Further, it is no business of the court to question whether there has ever been a sexual relationship within the marriage.4 In such a case it may be in the child’s interests to become a child of the applicants for the purposes of the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975.5

If an adoption order is made in favour of a couple whose marriage is later found to be bigamous, the adoption order will be regarded as valid until the court makes an order setting it aside.6

1 PD5A, Form A58 (notes).2 FPR 2010, r 14.11 and PD14D.3 Re C (Foreign Adoption: Natural Mother’s Consent: Service) [2006] 1 FLR 318; Re CC

(Adoption Application: Separated Applicants) [2013] EWHC 4815 (Fam), [2015] 2 FLR 281.

4 Re X (A Child: Foreign Surrogacy) [2018] EWFC 15, [2018] 2 FCR 287, [2018] 2 FLR 660.5 Re WM (Adoption: Non-Patrial) [1997] 2 FCR 494, [1997] 1 FLR 132.6 Re F (Infants) (Adoption Order: Validity) [1977] Fam 165, [1977] 2 WLR 488.

COUPLE IN AN ENDURING FAMILY RELATIONSHIP

ACA 2002, s 50(1) permits an adoption order to be made on the application of ‘a couple’, which term is defined by s 144(4) as either a married couple, or ‘two people (whether of different sexes or the same sex) living as partners in an enduring family relationship’.

The term ‘enduring family relationship’ has no statutory definition within the ACA 2002. It is for the court to assess whether or not an ‘enduring family relationship’ is established;1 it may be established even where one partner has died, or the couple do not reside together or relationship is not long-standing.1

The adoption agency’s assessment carried out under the Suitability of Adopters Regulations 2005 is likely to be influential in any particular case.2 Where, for sound reasons, the couple do not live together full time, the court may, nevertheless, conclude that they are living in an enduring relationship.3

The definition of an (unmarried) couple does not include two people one of whom is the other’s parent, grandparent, sister, brother, aunt or uncle (whether of the full or half blood) nor does it apply to a child with his adoptive, or former adoptive, parents.4

1 P and B v Z [2016] EWHC 1594 (Fam), [2017] 2 FLR 168.2 For SAR 2005 and DfES Guidance on suitability, see [163].3 DM v SJ (Surrogacy: Parental Orders) [2016] EWHC 270 (Fam), [2017] 1 FLR 514.4 ACA 2002, s 144(5), (6).

In Re T and M (Adoption),1 Hedley J held that what is required to establish that a couple are ‘living as partners in an enduring family relationship’ is first an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. These two matters will be a question of fact and degree in each case. There is no requirement that both partners should reside in the same property.

[55]– [57]

[58]

[59]– [60]



1 [2010] EWHC 964 (Fam), [2011] 1 FLR 1487.

RACE, RELIGION AND CULTURE

There is no legal requirement concerning the race of the applicants. In placing a child for adoption, an adoption agency in Wales (but not in England after 25 July 2014) must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.1 Adopters need to be sufficiently sensitive to assist a child to understand and take pride in all the elements of her background.2

1 ACA 2002, s 1(5); repealed in England with effect from 25 July 2014; see [31].2 Re C (Adoption: Religious Observance) [2002] 1 FLR 1119.

PARENT

A mother may make a joint application with her spouse or partner to adopt her own child. In such a case the age requirement1 is relaxed so that an adoption order may be made provided that the mother has attained the age of 18 years and her spouse/partner has attained the age of 21 years.2

A father, which term includes a natural father who was not married, or deemed to be married, to the child’s mother at the time of the child’s birth, may also make a joint application with his spouse or partner to adopt his own child. The father must have attained the age of 18 years and his spouse/partner must have attained the age of 21 years.2

The requirements concerning domicile3 and marriage or civil partnership4 apply fully to all applicants including a child’s parents.

1 ACA 2002, s 50(1); for age requirements, see [53].2 Ibid, s 50(2).3 For domicile requirements, see [54].4 For marriage or civil partnership requirements, see [55].

STEP-PARENT

A child’s step-parent may make an application for an adoption order either on his own or as one of a married or unmarried couple. There is no longer any special provision to be applied in the case of a step-parent adoption.1 He must satisfy the basic requirements;2 in particular, he and his spouse/partner must each have attained the age of 21 years, unless his spouse is a parent of the child.

Adoption by a step-parent together with a natural parent of the child has the artificial effect of changing the legal relationship between the parent and the child from a natural one to an adoptive one. ACA 2002, s 51(2) seeks to avoid this consequence by permitting a person who is the partner of the child’s parent to make an application to adopt on their own. On adoption the child will be treated in law as being the child of the adopter (the non-parent partner) and the other one of the couple (the parent).3

A step-parent may now acquire parental responsibility by way of a parental responsibility agreement or court order under CA 1989, s 4A.

Under the old law it was held that the repeal of AA 1976, s 14(3) did not imply that earlier cautionary dicta concerning step-parent adoptions no longer apply.4 Thorpe LJ, in Re PJ (Adoption: Practice on Appeal),5 observed:

‘In my judgment cautionary dicta are still apt since applications in step-parent adoptions may be driven or complicated by motives or emotions derived from

[61]

[62]

[63]



conflict within the triangle of adult relationships. They may also be buoyed up by quite unrealistic hopes and assumptions as to the quality of the marriage replacing that into which the children were born.’

In Re B (Adoption: Father’s Objections),6 Butler-Sloss LJ commented that, in a step-parent adoption, where a natural father objects, particularly where the parties have been married, it is comparatively unusual for an adoption order to be made.

In a complex step-parent adoption,7 the Court of Appeal criticised a judge who had made the applicant’s anxiety to achieve greater security within the step-family the key factor in his decision. Such a case warranted early transfer to the High Court.7

In Söderbäck v Sweden,8 the European Court of Human Rights held that a step-parent adoption did not breach Art 8 of the ECHR where the absent parent had had very limited contact with the child, and strong family ties existed between the child and her step-father.

An adoption order may be made in respect of a 17-year-old child to ‘secure in a life-long way’ the bond between the child and the step parent.9

1 AA 1976, s 14(3) (repealed by CA 1989, Sch 15).2 For joint applicants’ requirements, see [52].3 ACA 2002, s 67(2), (3); for effects of adoption, see [615].4 Re PJ (Adoption: Practice on Appeal) [1998] 2 FLR 252; for earlier dicta, see Re D (Minors)

(Adoption by Step-parent) (1981) 2 FLR 102; Re O (A Minor) (Adoption by Grandparents) [1985] FLR 546; Re S (A Minor) (Adoption or Custodianship) [1987] 2 WLR 977, [1987] 2 All ER 99, [1988] 1 FCR 57; Re W (A Minor) (Adoption or Custodianship) [1988] 1 FCR 129, [1988] 1 FLR 175; see also Re B (Adoption: Father’s Objections) [1999] 3 FCR 522, [1999] 2 FLR 215.

5 [1998] 2 FLR 252.6 [1999] 3 FCR 522, [1999] 2 FLR 215.7 Re G (Adoption Order) [1999] 1 FCR 482, [1999] 1 FLR 400.8 [1999] 1 FLR 250.9 Re X (A Child: Adoption No 2) [2014] EWHC 4813 (Fam).

Although the statutory provisions relating to welfare (ACA 2002, s 1) and parental consent (s 52) apply in equal measure to all categories of adoption application, the manner in which they are applied will, in part, differ depending upon the impact that the proposed adoption will have on the ECHR, Art 8 rights of the children and their parents. In Re P (Step-Parent Adoption),1 the Court of Appeal held that proportionality was the key to the approach to evaluating the needs of a child’s welfare throughout his life and that the degree of intervention that one form of adoption might represent (for example, non-consensual stranger adoption) may differ from another (for example a step-parent adoption within a well-established family unit) in terms of evaluating proportionality.

Where an adoption application is made by a step-parent, the approach of the ECHR in Söderbäck v Sweden2 should be applied according to the facts of each case.2 In doing so the following central points are likely to be important:2

(a) there is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;

(b) factors that are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent (‘Parent B’), and thereby make it more likely that adoption is a proportionate measure are:(i) where Parent B has not had the care of the child or otherwise asserted his

or her responsibility for the child;

[64]

D[64] Adoption


(ii) where Parent B has had only infrequent or no contact with the child;(iii) where there is a particularly well-established family unit in the home of

the parent and step-parent in which ‘de facto’ family ties have existed for a significant period.

1 [2014] EWCA Civ 1174, [2014] 3 FCR 193, [2015] 1 FLR 1327.2 [1999] 1 FLR 250.

Sole applicant

AGE, DOMICILE AND STATUS

An adoption application (unless it is a Convention application)1 may only be made by a sole applicant if either:

(1) he is domiciled in the British Islands;2 or(2) he has been habitually resident in the British Islands for a period of not less

than one year ending with the date of the application.3

An adoption order may be made on the application of one person, if:(1) he has attained the age of 21 years;4 and(2) he is unmarried4 or, if married or in a civil partnership, the court is satisfied

that:5

(a) his spouse/civil partner cannot be found; or(b) he has permanently separated from his spouse/civil partner; or(c) his spouse’s/civil partner’s physical or mental health is such that they are

incapable of making an application for an order;(3) (unless the adoptive placement was made by an adoption agency) the child has

his home with the applicant within England and Wales.6

A person who is the partner of one of the child’s parents may apply to adopt as a single applicant (without having to make a joint adoption application with the parent.7 For adoption by a single person who is the parent, see [66].

It is possible for a single commissioning parent in a surrogacy arrangement to apply for adoption, but the route to adoption is legally complicated.8

In EB v France (Application No 43546/02)10 the ECtHR held that there had been a violation of ECHR, Art 8 taken in conjunction with Art 14 where the sexual orientation of a single female applicant had been a central reason for refusing her application to adopt a child.

1 For Convention adoptions, see [700].2 ACA 2002, s 49(2); for ‘domicile’, see [672].3 Ibid, s 49(3).4 Ibid, s 51(1).5 Ibid, s 51(3) and, s 51(3A) inserted by Civil Partnership Act 2004, s 79.6 Ibid, ss 42, 44; see [54].7 ACA 2002, ss 51(2) and 144(7); for step-parent adoption see [63].8 B v C (Surrogacy: Adoption) [2015] EWFC 17, [2016] 2 FCR 565, [2015] 1 FLR 1392.9 [2008] 1 FCR 235, [2008] 1 FLR 850.

PARENT AS A SOLE APPLICANT

An adoption order may be made in favour of either the mother or father of the child, applying on their own. The phrase ‘father of the child’ includes the father without parental responsibility of a child.1 The court must be satisfied that:2

[65]

[66]– [67]



– the other natural parent is dead or cannot be found;3 or– by virtue of the Human Fertilisation and Embryology Act 1990, s 28 (meaning

of father), there is no other parent; or– there is some other reason justifying the child’s being adopted by the applicant

alone.

When such an order is made, the court must record the reason justifying the exclusion of the other natural parent.2

Where the applicant relies upon ‘some other reason’,2 that reason must be sufficient to outweigh the adverse consequences such an order may have by reason of the exclusion of the other parent from the child’s life.4 The other reason, which is likely to be exceptional, and which will depend on the circumstances of each case, does not have to be comparable with the death or disappearance of the other parent.4 Before making an order, the court must consider alternative orders under CA 1989; an adoption order is not to be used simply to prevent inappropriate intervention by the other parent.4

1 FLRA 1987, s 1.2 ACA 2002, s 51(4).3 For cannot be found, see [101].4 Re B (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 FCR 150, [2002] 1 FLR 196.

Previous applicants

A court may not hear an application for an adoption order where a previous application for adoption made in the British Isles (and Channel Islands) in relation to the same child by the same persons was refused by any court, unless it appears to the court that, because of a change in circumstances of for any other reason, it is proper to hear the application.1

1 ACA 2002, s 48.

5 REQUIREMENTS FOR OBTAINING AN ADOPTION ORDER

The primary grounds for making an adoption order are that the provisions relating to parental consent are satisfied1 and that the adoption order is justified, paramount consideration having been afforded to the welfare of the child throughout his lifetime in accordance with ACA 2002, s 1.

In summary, when an adoption application has been made, the court may only make an adoption order if each of the following requirements is satisfied:

(a) each applicant is qualified to apply in terms of age, domicile and status as a couple or a single applicant;

[51]–[68] ss 49–51

(b) the child’s age and status qualify him for adoption;

[41]–[50] s 49

(c) the child has lived with the applicant for the relevant probationary period prior to making the order;

[69F] s 42

(d) the adoption agency has had sufficient opportunity to see the child with the applicants;

[69H] s 42(7)

[68]

[69]

D[69] Adoption


(e) if placement for adoption has been by an adoption agency, the agency must submit a report on the suitability of the applicants;

[448] ss 43, 45

(f) if it is a non-agency placement, the provisions regarding notice to a local authority have been satisfied;

[70] s 44

(g) no previous application for a British adoption order has been made by the same applicants in relation to the same child (unless court gives leave to proceed)

[68] s 48

(h) there has been no contravention of the provisions relating to illegal transactions

[785] ss 92–96

(i) the requirements relating to parental consent are satisfied

[69A] s 47

(j) the court must consider any arrangements for post-adoption contact.

[605] s 46(6)

1 ACA 2002, s 47; for ‘conditions relating to parental consent’, see [69A].

Conditions relating to parental consent

An adoption order may not be made if the child has a parent or guardian unless one of three conditions is met.1 The three conditions relate to:

(1) parental consent to adoption (see [69B]) ; or(2) child has been placed for adoption by an adoption agency (see [69C]) ; or(3) child free for adoption under an AA 1976, s 18 freeing order,2 or a Scottish

permanence order which grants authority to place the child for adoption or N Ireland freeing order.3

1 ACA 2002, s 47.2 Ibid, Sch 4, para 7(3).3 Ibid, s 47(6).

FIRST CONDITION: PARENTAL CONSENT TO ADOPTION

The court will have jurisdiction to make an adoption order where, in the case of each parent or guardian, the court is satisfied:1

(a) that the parent or guardian consents to the making of the adoption order;2 or(b) that the parent or guardian has given advance consent to adoption under ACA

2002, s 203 (and has not withdrawn the consent4) and does not oppose the making of the adoption order; or

(c) that the parent’s or guardian’s consent should be dispensed with.5

A parent or guardian who has given advance consent to adoption may only oppose a subsequent adoption application if the court has given them leave to do so; such leave can only be given if the court is satisfied that there has been a change in circumstances since the consent was given.6

[69A]

[69B]

Adoption: Key Principles D[69D]


1 ACA 2002, s 47(2).2 For parent or guardian giving consent, see [71]–[99].3 For advance consent to adoption, see [265].4 For withdrawal of consent, see [276].5 For dispensing with parental consent, see [100].6 ACA 2002, s 47(3) and (7).

SECOND CONDITION: PLACED FOR ADOPTION BY ADOPTION AGENCY

The court will have jurisdiction to make an adoption order where the following three matters are established:1

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made; and

(b) either:i. the child was placed for adoption with the consent of each parent or

guardian and the consent of the mother was given when the child was at least six weeks old,2 or

ii. the child was placed for adoption under a placement order;3 and(c) no parent or guardian opposes the making of the adoption order.

Whilst it is possible for a child to be placed for adoption with maternal consent prior to age six weeks,4 ACA 2002, s 47(4)(b)(i) expressly provides that such consent is not sufficient to satisfy the second (‘placed for adoption’) condition; with the result that any application to adopt must proceed under the first condition, with the issue of parental consent being determined at the time of that hearing.4

A parent or guardian to whom the second condition applies may only oppose an adoption application if the court has given them leave to do so; such leave can only be given if the court is satisfied that there has been a change in circumstances since the consent was given.5 Where a parent is given leave to oppose the adoption in a case that would otherwise have been covered by the second condition (placement for adoption), that condition can no longer be satisfied as s 47(4)(c) can no longer be met, and the case will have to proceed under the first condition with the parent either consenting to adoption or consent being dispensed with.

1 ACA 2002, s 47(4).2 For placement for adoption with parental consent, see [258].3 For placement for adoption under a placement order, see [300].5 A Local Authority v GC and Others [2008] EWHC 2555 (Fam), [2009] 1 FCR 127, [2009]

1 FLR 299. For consent to placement prior to six weeks of age, see [83].6 ACA 2002, s 47(5) and (7). For ‘leave to parent to oppose adoption’, see [446].

THIRD CONDITION: SCOTLAND AND NORTHERN IRELAND ORDERS

A court in England and Wales will have jurisdiction to make an adoption order if the subject child is:

(a) the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted;1 or

(b) free for adoption by virtue of an order made under art 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987.2

[69C]

[69D]

D[69D] Adoption


A ‘Scottish permanence order’ means a permanence order under Adoption and Children (Scotland) Act 2007, s 80 (including a deemed permanence order having effect by virtue of arts 13(1), 14(2), 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009).3

In Re A (Children: Scottish Adoptions),4 Sir James Munby P, after a full analysis of the law, held that, where an order within s 47(6)(a) has been made in Scotland, the order will be recognised by the English court and, as a result, there is no need to re-determine the issue of parental consent in subsequent English adoption proceedings.

1 ACA 2002, s 47(6)(a) and see s 105.2 Ibid, s 47(6)(b).3 Ibid, s 47(10).4 [2017] EWHC 35 (Fam), [2018] Fam 177, [2017] 2 FCR 103, [2018] 2 FLR 995.

SCOTTISH CHILD PLACED FOR ADOPTION IN ENGLAND AND WALES

In Re A and O (Children: Scotland),1 Sir James Munby P gave extensive consideration to the provisions relating to a child who was subject to a compulsory supervision order under Children’s Hearings (Scotland) Act 2011, s 83 and who was placed by a Scottish local authority with English prospective adopters.2 The English court had jurisdiction based on the domicile or habitual residence of the adoptive parents. The Scottish local authority had acted as an adoption agency in placing the child so as to satisfy ACA 2002, s 42(2)(a) and the child’s parents and the Scottish local authority were joined as respondents under FPR 2010, r 14.3.

In any case where an adoptive placement is based upon orders made by a Scottish court, the case should be referred to the local designated family judge with a view to ordering the Scottish authority to be joined as a respondent before the first directions hearing.3

1 [2017] EWHC 1293 (Fam), [2017] 3 FCR 215, [2018] 1 FLR 1.2 Re N (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FCR 217, [2016] 1 FLR

621.3 Re A and O (Children: Scotland) [2017] EWHC 1293 (Fam), [2017] 3 FCR 215, [2018] 1

FLR 1.

CHILD TO LIVE WITH ADOPTERS FOR PROBATIONARY PERIOD PRIOR TO APPLICATION

ACA 2002, s 42 requires that the child who is to be the subject of an adoption application must have had his home with the applicant(s) for a minimum period of time preceding the making of the application. The period of time varies depending upon the type of placement.

If the applicant is a parent of the child, or the child was placed for adoption with the applicant(s) by an adoption agency, or in pursuance to a High Court order, the child must have had his home with at least one of the applicants (or a sole applicant) during the 10 weeks preceding the application.1

If it is not an adoption agency placement, the following periods apply:

(a) if the applicant (or one of them) is a partner of a parent of the child, the child must have had his home with the applicant(s) at all times during the six months preceding the application (unless the notice was given prior to 30 December 2005, in which case the period is 12 months);2

[69E]

[69F]


Adoption Key Principles D[69H]

(b) if the applicants are local authority foster-parents, the child must have had his home with them at all times in the one year preceding the application (unless the court gives leave for the application to proceed after a shorter period);3

(c) in any other case, the child must have had his home with one or both of the applicants (or with a sole applicant) for not less than three years (whether continuous or not) during the period of five years preceding the application (unless the court gives leave for the application to proceed after a shorter period).4

1 ACA 2002, s 42(2).2 Ibid, s 42(3), Sch 4, para 9.3 Ibid, s 42(4), (6).4 Ibid, s 42(5), (6).

Where an application is made by either a local authority foster-parent, or (in a non-agency case) by a person other than a partner of a parent, for leave to apply to adopt notwithstanding that the statutory probationary period has yet to be met, the court will apply the same test irrespective of the category of applicant.1 When determining a leave application under ACA 2002, s 42(6) the child’s welfare is not the paramount consideration and the court must consider whether the proposed application has ‘a real prospect of success’.2 In considering the prospects of success the court will almost always include an analysis of the child’s welfare.2

1 Re A; Coventry City Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FCR 55, [2008] 1 FLR 959 applying M v Warwickshire County Council [2007] EWCA Civ 1084, [2007] 3 FCR 681, [2008] 1 FLR 1093; see also Re IH (A Child) (Permission to Apply for Adoption) [2013] EWHC 1235 (Fam), [2014] 1 FLR 70; Re MW (Leave to Apply for Adoption) [2014] EWHC 385 (Fam), [2014] 2 FLR 978.

2 Re A; Coventry City Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FCR 55, [2008] 1 FLR 959 applying M v Warwickshire County Council [2007] EWCA Civ 1084, [2007] 3 FCR 681, [2008] 1 FLR 1093; see also Re IH (A Child) (Permission to Apply for Adoption) [2013] EWHC 1235 (Fam), [2014] 1 FLR 70.

The requirement that a child has his home with the applicant(s) for the relevant statutory period in s 42(2)–(5) is a separate requirement to that of sufficient opportunity being given to an adoption agency or local authority to see the child in the home environment in s 42(7).1 The latter home must be in a local authority area if it is a non-agency placement2, but that home does not need to be maintained in that location for the entire probationary period.1

Whether or not a ‘home’ has been established for the purposes of ACA 2002, s 42 is a question of fact in any particular case.3 In ECC v M3, Black J questioned whether it would ever be possible for applicants to establish a ‘home’ by a period of temporary residence that was for less than 10 weeks.

In Re X (A Child: Foreign Surrogacy),4 Sir James Munby P held that, in surrogacy case, the child had had his home with a married couple despite the fact that they had never lived together.

In Re X (Adoption Application: Gateway Requirements),5 Theis J held that the child had not had her home with the applicant, who was child’s mother’s partner, during the relevant six-month period where, notwithstanding time at boarding school (which was to be disregarded) and notwithstanding the fact that the child was financially supported by the applicant, the child had spent no more than a week in total living with the applicant at one or other of his international homes.

[69G]

[69H]

D[69H] Adoption


1 Re SL (Adoption: Home in Jurisdiction) [2004] EWHC 1283 (Fam), [2005] 1 FLR 118.2 ECC v M [2008] EWHC 332 (Fam); Re S and T (Intercountry Application: USA) [2015]

EWHC 1753 (Fam), [2016] 1 FLR 1011.3 ECC v M [2008] EWHC 332 (Fam).4 [2018] EWFC 15, [2018] 2 FCR 287, [2018] 2 FLR 660.5 [2013] EWHC 689 (Fam), [2014] 1 FLR 1281.

ADOPTION AGENCY HAS SUFFICIENT OPPORTUNITY TO SEE CHILD WITH APPLICANTS

An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given either to the adoption agency that placed the child for adoption, or (in any other case) to the local authority within whose area the home is.1 In a non-agency case the home must therefore be within England and Wales, but this home does not need to be maintained for the whole of the probationary period specified in s 42(3)–(5).2

1 ACA 2002, s 42(7).2 See [69G].

NON-AGENCY CASE: APPLICANTS REQUIRED TO GIVE NOTICE TO LOCAL AUTHORITY

Where proposed adopters wish to adopt a child who was not placed with them by an adoption agency, no adoption order may be made unless the proposed adopters have given notice of intention to adopt to the appropriate local authority.1 The notice must be given not more than two years, nor less than three months, before the date on which the application for the adoption order is made.2

On receipt of a notice of intention to adopt, the local authority must arrange for the investigation of the matter and submit to the court a report of that investigation.3 The investigation must include the suitability of the proposed adopters and any other matters relevant to the operation of the ACA 2002, s 1 welfare provisions with respect to the application.3

The ‘appropriate local authority’ for the purpose of a s 44 notice either, where the applicant(s) no longer have a home in England or Wales, the authority where they last had such a home,4 or (in any other case) the authority for the area in which the applicants are living at the time that the notice is given.5

1 ACA 2002, s 44(1), (2).2 Ibid, s 44(3).3 Ibid, s 44(4), (5) and Suitability of Adopters Regulations 2005.5 Ibid, s 44(9)(a) and the Local Authority (Adoption) (Miscellaneous Provisions) Regulations

2005, reg 3 and the Local Authority (Non-agency Adoptions) (Wales) Regulations 2005, reg 3.

6 Ibid, s 44(9)(b).

6 PARENTAL CONSENT

An adoption order may only be made if the court is satisfied in the case of each parent or guardian of the child:1

– that the parent or guardian consents to the making of the adoption order:

[69I]

[70]–[70A]

[71]– [72]

CHILDREN LAW AND PRACTICE Update 87 D–20C


– unconditionally; and– with full understanding of what is involved;2 or– that the parent or guardian has given advance consent to adoption under

ACA 2002, s 20 (and has not withdrawn that consent) and does not oppose the making of the adoption order;3 or

– that the parent or guardian’s consent should be dispensed with under one of the two statutory grounds available.4

It should be noted that, in the case of an application for an adoption order, the consent of the parent or guardian is required to the particular adoption order which the court is being asked to make (even if the identity of the applicants is not known to the parent).5

The provisions of ACA 2002, s 1, which require the court to give paramount consideration to the welfare of the child throughout his life, apply to a decision upon whether consent should be dispensed with.6

Detailed consideration is given below to the rights of the following parties:

– the child’s mother (see [73]);– the child’s natural father (see [75]);– the child’s guardian (see [79]);– a local authority (see [81]);– a voluntary organisation (including an adoption society) (see [82]).

1 For parent or guardian, see [73].2 ACA 2002, ss 47(2)(a), 52(5).3 Ibid, s 47(2)(b).4 Ibid, s 47(2)(c); for dispensing with consent to adoption, see [100].5 See [88].6 ACA 2002, s 1(7).

Definition of a parent or guardian of the child

PARENT

ACA 2002 provides that the consent of ‘each parent or guardian of the child’ must either be unconditionally given, with a full understanding of what is involved, or dispensed with by court order.1

The ACA 2002, s 52(6) defines the term ‘parent’ as meaning, in relation to a child, ‘a parent having parental responsibility for the child under the Children Act 1989’.

The following people are therefore included within the meaning of ‘parent’ for the purposes of the Act:

(1) the child’s natural mother (unless parental responsibility has been removed by order of a foreign court or a previous adoption order);

(2) the child’s natural father:(a) if he was married to, or in a civil partnership with, the child’s mother at

the time of the child’s birth;(b) if he subsequently married, or entered a civil partnership with, the child’s

mother;2

(c) if after 1 December 2003 he is registered as the child’s father on the birth certificate;3

(d) if he has obtained an order granting him parental responsibility with respect to the child;3

(e) if, before the commencement of CA 1989, he has obtained an order granting him parental rights and duties in respect of the child4 as that

[73]– [74]


D–20D CHILDREN LAW AND PRACTICE Update 87

order will be deemed to be an order under CA 1989, s 4 granting him parental responsibility for the child;4

(f) if he has acquired parental responsibility for the child under a parental responsibility agreement made with the mother;5

(2) the child’s adoptive parent if he has been the subject of a previous adoption. (In those circumstances, the child’s natural parents’ consent would not be relevant).

Where an order made in a foreign jurisdiction purports to remove the parental rights of a parent (including a mother), it will be for the court in England and Wales to determine whether the consequence of the order is that the parent no longer has parental responsibility for the child (the court will require expert evidence relating to the foreign jurisdiction).6

For a decision whether to withhold knowledge of existence of child from father with parental responsibility, see C[1046].

In Re S (A Child) (Child Parent: Adoption: Consent)7 Cobb J gave guidance on assessing the competence of a parent who is herself a child to consent to the adoption of her baby. Although the assessment of competence8 is not the same as the test for capacity under MCA 2005, there are advantages in courts adopting an analogous approach which borrows concepts from the Mental Capacity Act, in particular the concept that competence is decision-specific and child-specific.

Where such a parent is not competent to give valid consent to adoption, and the threshold criteria are not made out, it may be appropriate for the adoption to proceed as a private adoption under ACA 2002, s 44.

1 ACA 2002, ss 47(2), 52(5).2 Legitimacy Act 1976, s 2 and FLRA 1987; see A[112].3 CA 1989, ss 4(1), 11(1); see also A[221].4 FLRA 1987, s 4 (repealed by CA 1989, Sch 15, and converted by CA 1989, Sch 14, para 4).5 CA 1989, s 4(1)(b); see also A[213].6 Re AMR (Adoption: Procedure) [1999] 3 FCR 734, [1999] 2 FLR 807. See also Re AGN

(Adoption: Foreign Adoption) [2000] 2 FCR 512, [2000] 2 FLR 431.7 [2017] EWHC 2729, [2018] 1 FCR 74, [2018] 2 FLR 111.8 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, [1985] 3 WLR

830; see A[53].

FATHER WITHOUT PARENTAL RESPONSIBILITY

The consent of the father of a child, who was not married to, or in a civil partnership with, the child’s mother, or deemed to be so married or in a civil partnership, at the time of the child’s birth1 is not required within adoption proceedings, unless he has obtained parental responsibility for the child.2 The term ‘parent’ within ACA 2002 means, in relation to a child, ‘a parent having parental responsibility’ for the child under the Children Act 1989.2

A father, who is not married to, or in a civil partnership with, the child’s mother, may obtain parental responsibility by being named as the father in relation to a birth registered after 1 December 2003, or by a court order3 or a parental responsibility agreement with the child’s mother.4

A father without parental responsibility may be made a respondent to an adoption or placement order application.5

Where the father of the child does not have parental responsibility for the child and the father’s identity is known to the adoption agency and the agency is satisfied it is appropriate to do so, the agency must:6

[75]

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(1) carry out in respect of the father the requirements of AAR 2005, reg 14(1)(a), (b)(i) and (iii) and (c) as if they applied to him unless the agency is satisfied that the requirements have been carried out in respect of the father by another agency; and

(2) ascertain so far as possible whether the father:(a) wishes to acquire parental responsibility for the child under CA 1989,

s 4; or(b) intends to apply for a child arrangements order or contact order with

respect to the child under CA 1989, s 8 or, where the child is subject to a care order, an order under CA 1989, s 34.

The agency will in any event want to provide the child with the fullest possible information about his background. Failure to contact a natural father may give rise to a breach of obligations under the European Convention on Human Rights and the UN Convention on the Rights of the Child,7 but in rare and exceptional circumstances a court may dispense with the requirement to make contact with a father.8

One option open to a father without parental responsibility is to apply for a child arrangements order under CA 1989, s 8.9 If the child arrangements order makes provision for the child’s living arrangements, the effect will be that any care order with respect to the child will be discharged.10 A father without parental responsibility may apply for a child arrangements order, without obtaining leave so to do.11 An application for a child arrangements order made while an adoption application is pending is likely to be heard by the same court at the same time as that application.

1 FLRA 1987, s 1; see also Re M (An Infant) [1955] 2 QB 479.2 ACA 2002, s 52(6); Re C (A Minor) (Adoption: Parental Agreement: Contact) [1994] 2 FCR

485, [1993] 2 FLR 260.3 CA 1989, s 4(1)(a); or under FLRA 1987, s 4 and CA 1989, Sch 14, para 4; for father

acquiring parental responsibility, see A[212].4 CA 1989, s 4(1)(b).5 FPR 2010, r 14.3(3), see [430]; see also Re L (A Minor) (Adoption: Procedure) [1991] 1 FLR

171.6 AAR 2005, reg 14(3) and (4).7 Keegan v Ireland (No 16969/90) (1994) 18 EHRR 342, [1994] 3 FCR 165, ECHR.8 A Local Authority v A Mother [2017] EWHC 1515 (Fam), [2017] 2 FLR 1321.9 For child arrangements orders, see B[271].10 CA 1989, s 91(1).11 Ibid, s 10(4) and FLRA 1987, s 1.

NOTIFYING FATHER OR WIDER FAMILY OF BIRTH

An adoption agency’s duty to make contact with the father of the child who does not have parental responsibilities arises if ‘the agency is satisfied that it is appropriate to do so’.1 It is not ‘appropriate’ to make enquiries simply in order to provide more information about the child’s background.2 In deciding whether or not to make enquiries about a child’s relatives, the child’s welfare, whilst plainly important, is not the paramount consideration.3 As disclosure is a matter of discretion for the adoption agency or the court, a pregnant woman proposing to place a child for adoption without the consent or involvement of the father should be advised at an early stage that this may not be possible as a matter of law.2 Where the birth parents do not wish the wider family to be informed of the baby’s existence their wishes and feelings are likely to be of great significance, but will not be determinative.4

At paragraph 86 in Re A, B and C (Adoption: Notification of Fathers and Relatives),5 the Court of Appeal reproduced with approval a detailed procedural guide for local

[76]

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D[76] Adoption

authorities to follow when a mother expresses a wish that an infant be placed for adoption without notification to the child’s father and/or wider family.

Where there is doubt about the appropriateness of contacting the father, a direction from the court may be sought. Application to the court should be made under FPR 2010, Part 19; it is unjustified to issue care proceedings if this is the sole issue.2 In any event the court may direct that the father be given notice of any court proceedings;6 such a direction may be sought prior to issuing any proceedings.7

As a matter of practice, such a father should be informed of the proceedings unless for good reasons the court decides that it is not appropriate to do so.8 Where a mother refuses to disclose the father’s identity, her reasons must be carefully considered and, unless the reasons are cogent, it is wise at an early stage for the agency to consider applying to the court for directions on whether to notify the father.9 Where a mother continues to refuse to identify the father, and she is the only one who knows the identity, then there is in reality nothing more that can or should be done.10

In Re M (Adoption: Rights of Natural Father),11 Bodey J held that where informing the father of the proceedings would not be in the interests of the child and would give rise to a very real danger of serious violence, a decision not to inform the father was justified. In each case the court will consider whether, on the facts, the father has established ‘family life’ with the child for the purposes of ECHR Art 8.12

In CD (Notice of care proceedings to father without parental responsibility)13 the court held that a father without parental responsibility who was serving a lengthy prison sentence should not be notified of care proceedings in respect of a nine-year-old child with whom he had had very limited contact. HHJ Bellamy, sitting as a Deputy High Court Judge, indicated however that it might be necessary to revisit this decision later in the proceedings in the event that the local authority were to consider adoption for the child.

Where the father’s identity is uncertain, the Court of Appeal has held that the weaker the grounds for believing that someone is a father, the less likely the court will be to direct an investigation of paternity that compromises the mother’s wish for privacy. However, the court should be ‘extremely cautious’ before approving DNA testing of the child’s siblings as a means of avoiding the need to notify the possible father of the birth: in such circumstances, sibling testing is likely to amount to a disproportionate interference with the rights of the siblings and the possible father.14

1 AAR 2005, r 14(3) and (4).2 Re C (A Child) v XYZ County Council [2007] EWCA Civ 1206, [2007] 3 FCR 659, [2008]

1 FLR 1294.3 Re Cases A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41.4 Re JL and AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam), [2017] 1 FLR

1545.5 [2020] EWCA Civ 41, [2020] All ER (D) 136 (Jan).6 Re H; Re G (Consultation of Unmarried Fathers) [2001] 1 FCR 726, [2001] 1 FLR 646; Re R

(Adoption: Father’s Involvement) [2001] 1 FCR 158, [2001] 1 FLR 302; Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam), [2006] 2 FLR 589.

7 FPR 2010, r 14.21 by using the procedure in FPR 2010, Part 19 (FPR 2010, r 19.2).8 Re H; Re G (Consultation of Unmarried Fathers) [2001] 1 FCR 726, [2001] 1 FLR 646; Re R

(Adoption: Father’s Involvement) [2001] 1 FCR 158, [2001] 1 FLR 302.9 Ibid: Re O (Adoption: Withholding Agreement) [1999] 2 FCR 262, [1999] 1 FLR 451.10 Re L (Adoption: Contacting Natural Father) [2007] EWHC 1771 (Fam), [2008] 1 FLR 1079,

as approved in Re C (A Child) v XYZ County Council [2007] EWCA Civ 1206, [2007] 3 FCR 659, [2008] 1 FLR 1294.

11 [2001] 1 FLR 745; see also Re J (Adoption: Contacting Father) [2003] EWHC 199 (Fam), [2003] 1 FLR 933.

12 [2001] 1 FLR 745; Re H; Re G (Consultation of Unmarried Fathers) [2001] 1 FCR 726, [2001] 1 FLR 646; Re R (Adoption: Father’s Involvement) [2001] 1 FCR 158, [2001] 1 FLR



302. See also Re J (Adoption: Contacting Father) [2003] EWHC 199 (Fam), [2003] 1 FLR 933. For the ECHR approach to determining the existence of ‘family life’, see E[641].

13 [2017] EWFC 34, [2017] 4 WLR 110.14 Re L (Adoption: Identification of Possible Father) [2020] EWCA Civ 577.

The authoritative Court of Appeal decision on the approach to be taken to relinquished babies and the question of whether or not a child’s father or wider family should be informed of the birth is now Re A, B and C (Adoption: Notification of Fathers and Relatives).1 The following are the key principles:

– A mother’s right to privacy can only be overridden where it is necessary to do so to protect the interests of others;

– The profound importance of the adoption decision is capable of supplying justification for overriding a mother’s request for confidentiality;

– The decision should be prioritised and the process characterised by urgency and thoroughness;

– The first task is to establish the underlying facts; a mother’s account cannot be taken at face value;

– The welfare of the child is an important factor, but it is not the paramount consideration.

The following factors are likely to be relevant:

– Parental responsibility;– ECHR, Article 8 rights;– The substance of the relationships;– The likelihood of a family placement being a realistic alternative to adoption– The physical, psychological or social impact on the mother or on others of

notification being given; – Cultural and religious factors;– The availability and durability of the confidential information;– The impact of delay;– Any other relevant factors.

Re A, B and C concerned a putative father, that is a person thought to be the father although paternity has not been confirmed. Where the case concerns someone who may, or may not, be the father (a ‘possible father’), the degree of uncertainty must be factored in as one of the other relevant factors in the court’s overall consideration.2

1 [2020] EWCA Civ 41, [2020] All ER (D) 136 (Jan).2 Re L (Adoption Order: Identification of Possible Father) [2020] EWCA Civ 577, [2020] 2

FLR 225.

When an application to determine whether a father or family members are informed of the birth of a child, the court must be alert to the need for urgency. In Re A, B and C (Adoption: Notification of Fathers and Relatives),1 the Court of Appeal held that the following issues will require attention:

– Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.

– Identity of parties:

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(a) it is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent;

(b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children’s Guardian in the application;

(c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.

– Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian’s analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.

– Receiving the mother’s account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.

– The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.

1 [2020] EWCA Civ 41, [2020] All ER (D) 136 (Jan).

GUARDIAN

ACA 2002 provides that it is the consent of ‘each parent or guardian of the child’ which must either be unconditionally given, with a full understanding of what is involved, or dispensed with by court order.1 A child’s ‘guardian’, for the purpose of adoption proceedings, has the same meaning as in CA 1989, and includes a special guardian.2 The definition of ‘guardian’ does not automatically include the father without parental responsibility.

In Re AMR (Adoption: Procedure),3 HHJ David Gee (as a High Court judge), relying upon the Court of Appeal decision in Re K (Adoption: Foreign Child),4 held that where a person, or institution, had been appointed to be the child’s guardian by an order made in a foreign jurisdiction, it would be for the court in England and Wales to determine whether the ‘guardian’ was a guardian within the meaning of the adoption legislation (the court will require expert evidence relating to the foreign jurisdiction).5 HHJ Gee expressly disagreed with Holman J in Re D (Adoption: Foreign Guardianship),6 who had held that the meaning of ‘guardian’ in the AA 1976 was confined to a guardian appointed under CA 1989, s 5. The reasoning of Re AMR was followed by Cazalet J in Re AGN (Adoption: Foreign Adoption)7 and would seem to apply equally under ACA 2002.8

When considering whether a person or authority in another jurisdiction is or is not to be treated as a guardian under ACA 2002, ss 47 and 52, the court should consider:9

– the extent to which that person’s duties, rights and responsibilities equated to those of a person (a) who had parental responsibility in English Law and (b) whose consent to an adoption order had to be given or dispensed with;

[79]– [80]



– having particular regard to the purposes of ACA 2002, ss 47 and 52, whether in all the circumstances that person’s consent to an adoption order should be given or dispensed with before an adoption order was made.

1 ACA 2002, ss 47(2), 52(5).2 ACA 2002, s 144(1); for definition of guardian, see A[262], for special guardian see B[1021].3 Re AMR (Adoption: Procedure) [1999] 3 FCR 734, [1999] 2 FLR 807.4 [1997] 2 FCR 389, [1997] 2 FLR 221.5 Re AMR (Adoption: Procedure) [1999] 3 FCR 734, [1999] 2 FLR 807.6 [1999] 3 FCR 418, [1999] 2 FLR 865.7 [2000] 2 FCR 512, [2000] 2 FLR 431.8 For discussion, see Do Foreign Appointed Guardians Qualify as ‘Guardians’ for Purposes of

ACA 2002 (Prof N Lowe) [2008] Fam Law 163.9 Re J (Adoption: Consent of Foreign Public Authority) [2002] EWHC 766 (Fam), [2002] 2

FCR 635, [2002] 2 FLR 618 (assuming this authority applies to the ACA 2002 as it did to AA 1976).

THE LOCAL AUTHORITY

A local authority in whose care the child is (under a care order) does not have the right to consent, or to refuse to consent, to the adoption of the child,1 despite the fact that whilst a care order is in force the local authority has parental responsibility for the child.

1 CA 1989, s 33(6)(b).

VOLUNTARY ORGANISATION

A voluntary organisation which provides accommodation for a child under CA 1989, does not obtain parental responsibility for the child, but even where it does acquire parental responsibility because a parent has consented to the agency’s placement for adoption under ACA 2002, s 19 it has no right to consent or refuse to consent to the child’s adoption.

Consent to placement for adoption

An adoption agency is only authorised to place a child for adoption ‘with parental consent’ under ACA 2002, s 19 if it is satisfied that each parent or guardian of a child


[81]

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[83]– [84]



has consented (and has not withdrawn the consent) to the child being placed for adoption with prospective adopters identified in the consent, or being placed for adoption with any prospective adopters who may be chosen by the agency.1 In contrast to the position regarding consent to the making of an adoption order, a mother may give valid consent to placement for adoption when her baby is less than six weeks old.2

ACA 2002, s 19 is subject to the general provisions regarding parental consent in s 52.3 Consent therefore means consent that is given unconditionally and with full understanding of what is involved.4 Where consent is ostensibly given, it is nevertheless necessary for the adoption agency and the court to consider the parent’s mental capacity and whether consent is given unconditionally and with full understanding.5

Consent to a child being placed for adoption with prospective adopters identified in the consent may be combined with consent to the child subsequently being placed for adoption with any prospective adopters who may be chosen by the agency in circumstances where the child is removed from or returned by the identified adopters.6

Consent to placement for adoption may be withdrawn; however any purported withdrawal will be ineffective if it occurs after an adoption application has been made.7

1 ACA 2002, s 19(1). For placement with consent generally, see [258].2 A Local Authority v GC and Others [2008] EWHC 2555 (Fam), [209] 1 FCR 127, [2009]

1 FLR 299. For position regarding consent to adoption for baby under six weeks, see ACA 2002, s 52(3) and [88]; for placing a baby under six weeks, see [261].

3 ACA 2002, s 19(5).4 Ibid, s 52(5).5 Z v Kent CC (Revocation of Placement Order: Failure to Assess Mother’s Capacity and

Grandparents) [2018] EWFC B65, [2019] 1 FCR 830.6 ACA 2002, s 19(2).7 Ibid, s 52(4); form required for withdrawal, Form A106.

Advance consent to adoption

A parent or guardian who consents to the child being placed for adoption by an adoption agency under ACA 2002, s 19 may, at the same or any subsequent time, consent to the making of a future adoption order.1 Advance consent to adoption may be to adoption by named prospective adopters (if any) who are identified in the relevant s 19 consent to placement for adoption, or may be consent to adoption by any prospective adopters who may be chosen by the agency.2

Advance consent to adoption may be withdrawn;3 however any purported withdrawal will be ineffective if it occurs after an adoption application has been made.4

Any consent given by a mother is ineffective if given less than six weeks after the child’s birth.5 ACA 2002, s 20 is subject to the general provisions regarding parental consent in s 52.6

1 ACA 2002, s 20(1); for advance consent generally, see [265].2 Ibid, s 20(2).3 Ibid, s 20(3); form required for withdrawal, Form A106.4 Ibid, s 52(4).5 Ibid, s 52(3). A Local Authority v GC and Others [2008] EWHC 2555 (Fam), [2009] 1 FCR

127, [2009] 1 FLR 299. For consent to placement prior to six weeks of age, see [83].6 ACA 2002, s 20(6).

Consent to making of adoption order

Before the consent of a parent or guardian can be accepted by the court, the court must be satisfied that the parent or guardian, with full understanding of what is involved,

[85]– [87]

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consents unconditionally to the making of an adoption order, whether or not he knows the identity of the applicants.1

In an adoption application (rather than where advance consent is given), the consent must be to the specific application which has been made (even if the parent is unaware of the identity of the adopter).2 Any consent given by a mother is ineffective if given less than six weeks after the child’s birth.3 In a wholly exceptional case, an adoption order may be set aside on appeal on the ground that the parent’s consent had been founded upon a basic mistake.4

The consent must be unconditional; however, if the parent or guardian (or other relative/significant person) expresses wishes and feelings about upbringing of the child, the adoption agency must have regard to those matters when coming to any decision relating to the adoption of the child.5 Further, in placing the child for adoption, an agency in Wales (but not in England from 25 July 2014) must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.6

1 ACA 2002, s 52(5).2 ACA 2002, ss 47(2)(a), 52(5); see also PD5A, Form A104.3 ACA 2002, s 52(3). A Local Authority v GC and Others [2008] EWHC 2555 (Fam), [2009]

1 FCR 127, [2009] 1 FLR 299. For consent to placement prior to six weeks of age, see [83].4 Re M (Minors) (Adoption) [1990] 1 FCR 785, [1991] 1 FLR 458; Re A (Adoption: Agreement:

Procedure) [2001] 2 FCR 174, [2001] 2 FLR 455.5 ACA 2002, s 1(1) and (4)(f)(iii). For the form and proof of consent, see [89].6 Ibid, s 1(5); repealed in England from 25 July 2014: CFA 2014, s 3.

Form and proof of consent

The parent’s or guardian’s consent to placement or to adoption (including advance consent) must be given in the form prescribed by the rules or a form to the like effect.1 The relevant statutory forms are:

– Form A100: Consent to the placement of my child for adoption with any prospective adopters chosen by the Adoption Agency;

– Form A101: Consent to the placement of my child for adoption with identified prospective adopters;

– Form A102: Consent to the placement of my child for adoption with identified prospective adopter(s) and, if the placement breaks down, with any prospective adopter(s) chosen by the adoption agency;

– Form A103: Advance Consent to Adoption Section 20 of the Adoption and Children Act 2002;

– Form A104: Consent to Adoption;– Form A105: Consent to the making of an Order under Section 84 of the

Adoption and Children Act 2002;– Form A106: Withdrawal of Consent Sections 19 and 20 of the Adoption and

Children Act 2002.

1 ACA 2002, s 52(7); FPR 2010, r 14.10(1) and (2).

In England and Wales any consent form must be witnessed by a Cafcass officer or, where the child is ordinarily resident in Wales, by a Welsh family proceedings officer.1 In Scotland it should be witnessed by a Justice of the Peace or a Sheriff, and in Northern Ireland by a Justice of the Peace.2

Outside the United Kingdom, the form should be witnessed by a person who is authorised by law in the place where the document is signed to administer an oath for any judicial or legal purpose, a British Consular Officer, a notary public, or, if the person

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executing the document is serving in the regular armed forces of the Crown, an officer holding a commission in any of those forces.2

1 See notes on relevant statutory form.2 FPR 2010, r 14.10; AAR 2005, reg 20A.

Intercountry adoptions: consent

The provisions set out above apply equally to non-Convention adoption applications relating to a child who has come from another country. The consent of his parent or guardian will either have to be proved or dispensed with before an adoption order may be made. Potential problems at the final hearing can be avoided if the evidence of consent has been obtained in accordance with the rules at the time of the original placement, which will normally have taken place abroad.1

In Re G (Foreign Adoption: Consent),2 Johnson J held that agreement given by a mother to an adoption in Paraguay did not satisfy the requirements for consent to an English adoption order. It is a mandatory requirement for the natural mother to be made a respondent and to be served, unless service has been dispensed with. In the event, the court directed the Official Solicitor to ask the British Consul to ask the mother for her views upon the English adoption application. In Re A (Adoption of a Russian Child),3 Charles J expressed the view that he would not rule out the possibility that consent to a foreign adoption order is sufficient for valid consent for the purposes of an English adoption order.

In Re C (Foreign Adoption: Natural Mother’s Consent: Service)4 Bodey J went further and accepted that a consent given to an adoption in Papua New Guinea some years earlier sufficed as consent for an English court.

1 For a full review of the practice relating to intercountry adoptions, see [751]. For Convention adoptions, see [700].

2 [1995] 2 FLR 534.3 [2000] 1 FCR 673, [2000] 1 FLR 539 at 543.4 [2006] 1 FLR 318.

The effect of giving consent

PLACEMENT FOR ADOPTION OR ADVANCE CONSENT TO ADOPTION

Where a child is placed for adoption with parental consent, the birth parents can validly withdraw their consent to placement and/or advance consent to adoption at any time before an application for an adoption order is made.1 If consent to placement is withdrawn before an application has been issued, statutory provision is made for the removal and return of the child.2

Where consent to a placement, or advance consent to adoption, has not been withdrawn prior the issue of an adoption application, the birth parent may only oppose the making of an adoption order with the leave of the court, and the court may only give leave if there has been a change of circumstances.3

1 ACA 2002, 52(4).2 Ibid, ss 30–41; for ‘removal of child’, see [360].3 Ibid, s 47(5) and (7); for leave to oppose adoption, see [446]. For consequences of consent to

placement for adoption, see [268].

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7 DISPENSING WITH PARENTAL CONSENT

Grounds for dispensing with parental consent

A court may dispense with the consent of a parent or guardian to adoption or to a placement order on one or both of two possible grounds,1 namely that:

(1) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent (see [101]);

(2) the welfare of the child requires the consent to be dispensed with (see [103]).

1 ACA 2002, s 52(1).

Cannot be found or lacks capacity to give consent

CANNOT BE FOUND

Consent to the making of a placement order or an adoption order may be dispensed with on the ground that the parent or guardian cannot be found or lacks capacity to give consent.1

In order to satisfy this ground, the applicant must show that every reasonable effort has been made to try and contact the parent. Inquiries should be thorough and should include attempts to contact the extended family of the ‘missing parent’ where the relevant addresses are known. Writing to the last known address, advertising and making inquiries of the Post Office have been accepted as reasonable.2 Other possible avenues include the Department of Works and Pensions, the Council Tax Register, the Passport Office and the housing authority.

Where consent is dispensed with on this ground alone, and the parent later comes forward to contest the matter, the order may be set aside and a retrial ordered on the merits of the case and the question of parental consent.3 In Re B (An Infant),4 the adoption order was set aside because, although the address of the child’s mother was known to the applicants, they failed to serve her with notice of the proceedings.

It has been held that a parent who is resident in a ‘totalitarian country’, and for whom an attempt to try and make contact might result in danger, can properly satisfy this ground and also be said to be ‘incapable of giving consent’ (the phrase used prior to MCA 2005).5 Where making or seeking to make contact with a natural mother could lead to proceedings in the foreign jurisdiction against the applicants for adoption, this ground is made out.6

1 ACA 2002, s 52(1)(a).2 Re F (R) (An Infant) [1969] 3 All ER 1101; Re T (A Minor) (Adoption Order: Leave to Appeal)

[1995] 3 FCR 299, [1996] Fam Law 684; Re S (Adoption) [1999] 2 FLR 374 (Scottish case); West Sussex County Council v Alma [2016] EWHC 2009 (Fam), [2017] 1 FLR 1383.

3 Re F (R) (An Infant) [1969] 3 All ER 1101; Re T (A Minor) (Adoption Order: Leave to Appeal) [1995] 3 FCR 299, [1996] Fam Law 684; Re S (Adoption) [1999] 2 FLR 374 (Scottish case).

4 [1958] 1 QB 12.5 Re R (Adoption) [1966] 3 All ER 613.6 Re A (Adoption of a Russian Child) [2000] 1 FCR 673, [2000] 1 FLR 539.

LACKS CAPACITY TO GIVE CONSENT

To satisfy this ground, a parent or guardian must be shown to lack capacity to give consent by reference to the meaning of that phrase in the Mental Capacity Act 2005.1 The incapacity may relate to the parent’s or guardian’s mental or physical condition or circumstances at the date of the decision. The court must be satisfied that the parent has

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not indicated a view on the adoption and is incapable of agreeing to it. Thus, a parent with a severe physical or mental illness or a parent in a ‘totalitarian state’2 who, even if they wanted to agree to the adoption, could not do so, would come within this provision.

Where it is necessary to determine whether a parent has the necessary mental capacity to consent to adoption, the appropriate test is that contained in the Mental Capacity Act 2005; the same test applies even where the parent is still a child and consideration is given to Gillick competence.3 The test deliberately mirrors that for dispensing with consent due to lack of capacity.4 A mother may be competent to consent to accommodation under CA 1989, s 20 but that did not mean that she was also competent to consent to adoption.3

In order to have sufficient competence to consent to adoption a parent should be able to demonstrate sufficient understanding of the salient facts around adoption and should understand the essential nature and quality of the transaction; there was no need for understanding of peripheral matters.3

A parent in the proceedings who is a ‘protected party’ must have a litigation friend to conduct the proceedings on his behalf.5 A ‘protected party’ means a party, or an intended party, who lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct proceedings.6

1 For Mental Capacity Act 2005 definition of ‘lacks capacity’, see B[1383A].2 Re R (Adoption) [1966] 3 All ER 613.3 Re S (A Child) (Child Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2018] 1 FCR

74, [2018] 2 FLR 111.4 For dispensing with consent for lack of capacity, see [102].5 FPR 2010, r 15.2; for representation of a protected party, see C[1055].6 Ibid, r 2.3.

Child’s welfare requires consent to be dispensed with

Consent to the making of a placement order or an adoption order may be dispensed with on the ground that the welfare of the child requires the consent to be dispensed with.1 The ‘welfare’ ground is an innovation brought in by ACA 2002 and replaces five alternative grounds for dispensation contained in AA 1976, s 16(2), including that of the parent ‘withholding his consent unreasonably’.

1 ACA 2002, s 52(1)(b).

Despite the fact that welfare is brought expressly into the test for dispensing with consent, the consent issue remains separate from the welfare issue, thus the question under s 52(1) is not ‘does the child’s welfare require a placement/adoption order’, it is ‘does the child’s welfare require that the parental consent be dispensed with’.

While in Re S (Adoption Order or Special Guardianship Order)1 the Court of Appeal considered that ‘at first blush it would appear likely to be the case that once the court has reached the conclusion that adoption is in the best interests of the child, it will follow that his or her welfare will require the court to dispense with parental consent to adoption’, the court expressly declined to express a concluded view on the issue.

1 [2007] EWCA Civ 54, [2007] 1 FCR 271, [2007] 1 FLR 819.

Paramount consideration

In contrast to the approach to dispensation with parental consent under AA 1976, ACA 2002, s 1(7) makes it plain that the child’s welfare will be the paramount consideration

[103]–[104]

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in determining the issue of dispensing with parental consent. The welfare checklist at ACA 2002, s 1(4) must be applied in determining the consent issue.1

The court must have regard to each element of the welfare checklist. The factors that may indicate that adoption is in the child’s best interests, must be balanced against those that may point away from adoption, for example s 1(4)(c) (likely effect of ceasing to be a member of the original family) or s 1(4)(f) (relationship with relatives and others).

In Re B-S (Children) (Adoption: Leave to Oppose)2 the Court of Appeal gave guidance as to the proper approach to adoption in all ‘non-consensual’ cases, ie cases where the court is asked to dispense with a parent’s consent under ACA 2002, s 52(1)(b). The court expressed ‘serious concerns and misgivings’ about the way in which courts have been approaching such applications. In many cases the reasoning contained in social work documents and in judgments is ‘inadequate’. Munby P reviewed the authorities on the ‘fundamental principles’ applicable to adoption cases, reminding courts that the UK is unusual within Europe in permitting non-consensual adoption. He referred to the views of the ECtHR as expressed in YC v United Kingdom,3 that ‘family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing’. As the Supreme Court emphasised in Re B,4 the local authority, the guardian and the court must each give real consideration to each of the possible options for the child. This will involve a weighing of the pros and cons of each outcome and an analysis of the competing arguments in relation to each. In particular, it is essential that the court take into account and deal explicitly with the negatives, as well as the positives, of a placement away from the child’s family.

The law in England and Wales permitted non-consensual adoption is not incompatible with the requirements of the ECHR.5

1 For adoption welfare checklist, see [16].2 [2013] EWCA Civ 1146, [2013] 3 FCR 481, [2014] 1 FLR 1035; see also W (Care

Proceedings: Function of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 1 FCR 260, [2014] 2 FLR 431. For full consideration of Re B-S and subsequent case-law see [20].

3 (2012) 55 EHRR 967, [2013] 2 FCR 36.4 [2013] UKSC 33, [2013] 2 FCR 525, [2013] 2 FLR 1075.5 Re CB (A Child) (Placement Order: Brussels II Regulation) (Central Authority of the

Republic of Latvia intervening) [2015] EWCA Civ 888, [2016] 1 FLR 1286.

‘REQUIRES’

In Re P (Placement Orders: Parental Consent)1 the Court of Appeal gave guidance upon the interpretation of the word ‘requires’ in ACA 2002, s 52(1)(b). Having reviewed the issue in the context of ECHR jurisprudence, where adoption is a measure that should only be applied in exceptional circumstances and can only be justified if it is motivated by an overriding requirement pertaining to the child’s best interests,2 Wall LJ (giving the judgment of the court) said:

‘This is the context in which the critical word “requires” is used in section 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective “requires” does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.

What is also important to appreciate is the statutory context in which the word “requires” is here being used, for, like all words, it will take its colour from the

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particular context. Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child’s welfare “requires” adoption as opposed to something short of adoption. A child’s circumstances may “require” statutory intervention, perhaps may even “require” the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily “require” that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is “required” is adoption.

In our judgment, however, this does not mean that there is some enhanced welfare test to be applied in cases of adoption, in contrast to what [counsel] called



a simple welfare test. The difference, and it is an important, indeed vital,difference, is simply that between section 1 of the 1989 Act and section 1 of the2002 Act.

In the first place, section 1(2) of the 2002 Act, in contrast to section 1(1) of the1989 Act, requires a judge considering dispensing with parental consent inaccordance with section 52(1)(b) to focus on the child’s welfare “throughout hislife”. This emphasises that adoption, unlike other forms of order made under the1989 Act, is something with lifelong implications. In other words, a judgeexercising his powers under section 52(1)(b) has to be satisfied that the child’swelfare now, throughout the rest of his childhood, into adulthood and indeedthroughout his life, requires that he or she be adopted. Secondly, and reinforcingthis point, it is important to bear in mind the more extensive “welfare checklist” tobe found in section 1(4) of the 2002 Act as compared with the “welfare checklist”’in section 1(3) of the 1989 Act; in particular, the provisions of section 1(4)(c) –which specifically directs attention to the consequences for the child “throughouthis life” – and section 1(4)(f). This all feeds into the ultimate question undersection 52(1)(b): does the child’s welfare throughout his life require adoption asopposed to something short of adoption?’

The decision in Re P (Placement Orders: Parental Consent) has been endorsed by theSupreme Court in ANS v ML (Scotland),3 which considered the Adoption and Children(Scotland) Act 2007, s 31(3)(d), which is in identical terms to ACA 2005, s 52(1)(b).The Supreme Court held that for an outcome to be ‘required’ meant that it was‘necessary’, that is that ‘there is an overriding requirement that the adoption proceedfor the sake of the child’s welfare’; on such an interpretation the statutory provision iscompatible with the ECHR.

1 [2008] EWCA Civ 535, [2008] 2 FLR 625; applied in Re Q (Adoption) [2011] EWCA Civ1610, [2012] 1 FLR 1228.

2 Johansen v Norway (1996) 23 EHRR 33.3 [2012] UKSC 30, 2013 SC (UKSC) 20.

In Re B (A Child)1 the Supreme Court emphasised that the need for proportionalitywhen applied to a court determining whether or not to sanction the placement of achild for adoption meant that such a course should only be approved ‘as a last resort –when all else fails’ and where ‘the court must be satisfied that there is no practical wayof the authorities (or others) providing the requisite assistance and support’ (perLord Neuberger at paragraphs 104 and 105) and when ‘nothing else will do’ (perBaroness Hale at paragraphs 145, 198 and 214). Baroness Hale state (paragraph 198):

‘Nevertheless, it is quite clear that the test for severing the relationship betweenparent and child is very strict: only in exceptional circumstances and wheremotivated by overriding requirements pertaining to the child’s welfare, in short,where nothing else will do. In many cases, and particularly where the feared harmhas not yet materialised and may never do so, it will be necessary to explore andattempt alternative solutions. As was said in Re C and B2 at paragraph 34:

“Intervention in the family may be appropriate, but the aim should be toreunite the family when the circumstances enable that, and the effort should bedevoted towards that end. Cutting off all contact and the relationship betweenthe child or children and their family is only justified by the overridingnecessity of the interests of the child.”’

It is to be stressed that the test as drawn by the Supreme Court of ‘nothing else will do’is related to the overriding requirements of the child’s welfare.3



[109]–[110]

Where a court is satisfied that adoption will only meet the child’s needs in certainspecific circumstances then, in the light of the legal structure in which the court has nojurisdiction to dictate the choice of placement and a placement order (under ACA2002, s 21(2)) authorises placement with any adopters chosen by the local authority, itwill not be possible for the court to hold that, in those circumstances, the child’swelfare ‘requires’ adoption and that ‘nothing else will do’.4 Whilst the absence of aplacement order may in some respects restrict the ability of a local authority to identifyprospective adopters, it does not prevent them from doing so; if adopters are identified,then a fresh, targeted, application for a placement order may be made.

In Re M (A Child: Long-Term Fostering),5 the Court of Appeal stressed that theneed to sanction adoption only if nothing else will do must be interpreted with acareful eye to the realities of a child’s life. Delay is one factor, but only one of manyfactors; a useful starting point is consideration of the welfare checklist in ACA 2002,s 1(4). What has to be determined is not simply whether any other course is possible,but whether there is another course which is possible and in the child’s interests.5

Where the threshold criteria under CA 1989, s 31 have been established by ‘not …a very large margin’ it is unlikely that the court will be prepared to sanction a plan foradoption.6

1 [2013] UKSC 33, [2013] 2 FLR 1075.2 [2001] 1 FLR 611.3 Re M-H (Placement Order: Correct Test to Dispense with Consent) [2014] EWCA Civ 1396,

[2015] 2 FLR 357.4 Re A (Placement Order: Imposition of Conditions on Adoption) [2013] EWCA Civ 1611,

[2014] 2 FLR 351.5 Re M (A Child: Long-Term Fostering) [2014] EWCA Civ 1406, [2015] 2 FLR 197.6 Re B and G (Children) (No 3) [2015] EWFC 27.

JUDGED AT THE DATE OF THE HEARING

On the basis of earlier authorities, it seems that the question of whether a child’swelfare requires that the parent’s consent be dispensed with is to be judged at the dateof the hearing.1 If an appeal is heard, the proper date is the date of the appeal courthearing.2

1 Lord Denning MR in Re L (An Infant) (1962) 106 Sol Jo 611, as approved in Re W (AnInfant) [1971] 2 All ER 49; Re L (A Minor) (Adoption: Statutory Criteria) [1990] 1 FLR 305.

2 Re S (An Infant) (Adoption: Parental Consent) [1973] 3 All ER 88.

WELFARE – SOME RELEVANT CONSIDERATIONS

Set out below are some commonly encountered factors which may have a bearing onthe question of the child’s welfare in appropriate cases. The references are no morethan brief headlines, with case citations, as in this area each individual case will turn toa great extent upon its own cocktail of facts. Cases determined prior to 2006 weredecided with respect to the earlier test of ‘unreasonably withholding consent’ and musttherefore be regarded as illustrative rather than directly authoritative on the applicationof the new ‘welfare’ ground in ACA 2002, s 52(1)(b):

– rehabilitation (see [113]);– contact (see [114]);– child’s security (see [115]);– inherent defect (see [116]);



[111]

[112]



– finances (see [117]);– race, culture and religion (see [118]);– risk of harm (see [119]);– consent given and retracted (see [120]);– wishes of the child (see [121]).

In YC v United Kingdom (Application No 4547/10),1 the ECtHR reviewed the approach to be taken to issues of adoption under the ACA 2002 and held that in identifying where a child’s best interests lie in a particular case two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child’s best interests to ensure his development in a safe and secure environment. In Uzbyakov v Russia (Application No 71160/13)2 the ECtHR set out a comprehensive account of the approach to adoption under the ECHR.

1 [2013] 2 FCR 36, [2012] 2 FLR 332.2 [2020] Fam Law 994.

REHABILITATION

The possibility or otherwise of the future rehabilitation of the child to the natural parent, or wider family, will often be the crucial consideration in a contested adoption or placement case.1 The applicant’s case must be supported by evidence directly concerned with this question, as must the parent’s case in reply. The degree of risk associated with rehabilitation and the parent’s capacity to care should be professionally assessed by the children’s guardian.2 Many of the other factors listed below are relevant because they may have a bearing upon future rehabilitation.

1 Re H; Re W (Adoption: Parental Agreement) (1983) 4 FLR 614; see also Re GB (Adoption: Parental Agreement) [1985] FLR 719 and Re D (Grant of Care Order: Refusal of Freeing Order) [2001] 1 FCR 501, [2001] 1 FLR 862, Re S (A Child) (Freeing for Adoption Order) [2001] EWCA Civ 868, [2001] 3 FCR 375, CA.

2 Re G (A Minor) (Adoption: Parental Agreement) [1990] 1 FCR 881, [1990] 2 FLR 429.

CONTACT

Contact may be relevant in a number of different respects.

(1) Where contact is continuing at the date of the hearing. It may be in the child’s interests for it to continue in the future or to provide a basis for future rehabilitation. The paramount consideration to be applied by the court hearing an application for continued contact will be the child’s welfare.1

(2) Reopening or continuing contact may upset the child’s stability.2

(3) Whilst not seeing the parent, the child may be having contact with other members of his natural family which may be beneficial and may be upset or prevented by an adoption order.3

(4) Contact may be more likely to benefit the child in some cases if it takes place away from the security of an adoptive home.4

1 CA 1989, s 1.2 Re H (Minors) (Adoption: Putative Father’s Rights) (No 3) [1991] 1 FCR 361, [1991]

2 All ER 185 at 192A.3 Re M (Minors) (Adoption: Parental Agreement) [1985] FLR 921; Re P (Adoption) (Freeing

Order) [1994] 2 FCR 1306, [1994] 2 FLR 1000.4 Re B (A Minor) (Adoption: Parental Agreement) [1990] 1 FCR 841, [1990] 2 FLR 383.

[113]

[114]


D[115] Adoption

CHILD’S SECURITY

The future stability and security of the child’s life is an important factor. Where the child is already settled with prospective adopters at the time of the hearing, it will normally be difficult for a parent to put forward a reasonable argument that the child’s home should be upset.1 In addition to maintaining the child in one particular home, adoption gives a legal security over and above that given by other forms of order.2

The period during which a child has been in a placement will be relevant; the younger the child and the longer the period, the more obvious it may be that the child’s welfare could be harmed by a change and the greater the weight this should have.3

1 Re C (A Minor) (Wardship and Adoption) (1981) 2 FLR 177; Re W (Adoption: Parental Agreement) (1982) 3 FLR 75; Re M (Adoption: Parental Agreement) [1985] FLR 664.

2 Re F (A Minor) (Adoption: Parental Consent) [1982] 1 WLR 102; Re B (Adoption: Father’s Objections) [1999] 3 FCR 522, [1999] 2 FLR 215.

3 Re C (Minors) (Adoption) [1991] 1 FCR 1052, [1992] 1 FLR 115 at 132 (note that the headnote to this report does not correctly summarise this point).

INHERENT DEFECT LIKELY TO PERSIST

Where there is an inherent defect which is likely to persist in the natural parent, this factor is likely to be given weight.1 However, where the parent’s unsuitability can only be related to past history, unless the past history is likely to influence the future position, it should carry little weight.2

1 Re H (Adoption: Parental Agreement) (1982) 3 FLR 386 (alcoholism); Re H, Re W (Adoption: Parental Consent) (1983) 4 FLR 614.

2 Re H, Re W (Adoption: Parental Consent) (1983) 4 FLR 614 at 624.

FINANCES

The material circumstances of the parents are relevant, but, save in exceptional circumstances, will not be the most important factor in the case.1 A child may be perfectly happy and content in humble surroundings.

1 Re P (Adoption: Parental Agreement) [1985] FLR 635.

RACE, RELIGION AND CULTURE

In some cases the child may not be of the same racial, cultural or religious background as the proposed adopters.1 The weight to be given to this factor will depend upon the whole circumstances of the case. Objection on the ground that the adopters were of a different racial background to the child and were also Jehovah’s Witnesses has been held under the old law not to be unreasonable.2 In Re N (A Minor) (Adoption),3 Bush J decided that adoption was not in the best interests of a Nigerian child who had been placed at the age of three weeks with white foster-parents; the judgment helpfully reviews the issues which occur in trans-racial applications.

Issues relating to religion are of importance, and the wishes of a natural parent must be given due regard;4 however, the court must give paramount consideration to the child’s welfare and the circumstances may dictate that the child’s welfare requires a course which does not accord with the parent’s religious wishes.5

1 See LAC 98(20) and CI(90)2.

[115]

[116]

[117]

[118]



2 Re J (A Minor) (Wardship: Adoption: Custodianship) [1987] 1 FLR 455.3 [1990] 1 FCR 241, [1990] 1 FLR 58; see also Re P (A Minor) (Adoption) [1990] 1 FCR 260,

[1990] 1 FLR 96 and Re JK (Adoption: Transracial Placement) [1990] 1 FCR 891, [1991] 2 FLR 340; for race, religion and culture, see [31]–[32].

4 ACA 2002, s 1(4)(f)(iii) and (5) (see [31]).5 Re E (An Infant) [1963] 3 All ER 874 (for a detailed description and quotation from this

authority, see A[5]); Re C (Adoption: Religious Observance) [2002] 1 FLR 1119.

RISK OF HARM

Where there is a risk of harm to the child if he were to return to, or maintain contact with, the parent then the suggestion that there should be such a return or maintenance of contact will be potentially of substantial importance. The court must take account of any harm (within the meaning of CA 1989) which the child has suffered or is at risk of suffering.1

1 ACA 2002, s 1(4)(e).

PARENT GIVING CONSENT AND THEN RETRACTING IT

A parent may withdraw a previous consent to placement or adoption at any stage up to the issuing of an application for an adoption order.1 However, the fact that a parent has in the past agreed to adoption was, under the old law, itself relevant to deciding whether his subsequent withholding of consent is unreasonable.2

Once formal consent had been given time began to run against the parent and, as time went on, it became progressively more difficult for him to show that the later withdrawal of consent was reasonable.3

1 ACA 2002, s 52(4).2 Re P (Adoption: Parental Agreement) [1985] FLR 635; Re R (A Minor) (Adoption) (No 2)

[1987] FCR 113.3 Re H (Infants) (Adoption: Parental Consent) [1977] 2 All ER 339; Re A (Adoption: Mother’s

Objections) [2000] 1 FLR 665.

WISHES OF THE CHILD

The court must have regard to the child’s ascertainable wishes and feelings regarding the decision (considered in the light of his age and understanding).1

1 ACA 2002, s 1(4)(a).

The court’s approach

When considering an application for a placement order or for an adoption order the court has the power to dispense with a parent’s or guardian’s consent to the relevant order on one of two specified grounds.1

Under the earlier law, dispensing with consent to adoption was said to involve the court in a two-stage process:

(1) Is adoption in the best interests of the child?(2) If so, is a ground or grounds for dispensation established, on the balance of

probabilities?

[119]

[120]

[121]–[125]

[126]


D[126] Adoption

These two stages were separate and had to be considered by the court in the sequence set out above.2

Despite the change wrought by ACA 2002, s 1(7), by which the question of dispensing with consent is now governed by the paramountcy of the child’s welfare, and despite one of the statutory grounds for dispensation now being based upon the child’s welfare requiring it, it seems that a two stage approach remains appropriate. The question under ACA 2002, s 52(1) will not be ‘Does the child’s welfare require a placement/adoption order?’ but will be ‘Does the child’s welfare require that parental consent be dispensed with?’

The consideration of whether parental consent should be dispensed with should be undertaken and decided at the time when making the relevant order is under consideration.3

1 ACA 2002, ss 21(3)(b), 47(2)(c), 52(1); for grounds for dispensation, see [103].2 Re D (A Minor) (Adoption: Parental Agreement) [1991] 1 FCR 615, [1991] 1 FLR 48.3 Devon County Council v B [1997] 3 FCR 333, [1997] 1 FLR 591.

Procedure for dispensing with consent

In a case where the court is asked to dispense with consent, the applicant must give notice of the request in the application form, or at any later stage file a written request setting out the reasons for the request, and must file a statement of facts setting out a summary of the history of the case and any other facts to satisfy the court of the ground(s) for dispensation.1

1 FPR 2010, r 14.9(2); for statement of facts, see [439].

8 JURISDICTION

Jurisdiction under the Brussels IIR Regulation

Issues of jurisdiction in public law care proceedings under CA 1989, Part 4 are governed by the Brussels IIR Regulation (Council Regulation (EC) No 2201/2003), which is also sometimes referred to as ‘Brussels IIA’.1 By Art 1(3)(b) of BIIR the regulation does not however apply to ‘decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption’. An important jurisdictional distinction therefore exists between proceedings for a care or supervision order under CA 1989, s 31, which are governed by BIIR, and an application for a placement for adoption order, which, as a measure ‘preparatory to adoption’, is outside BIIR.2 An application for a care order, even where the care plan is for adoption, is not part of the process of adoption and therefore will therefore always be within the scope of BIIR.2

1 For jurisdiction in relation to public law proceedings, see C[1].2 Re N (Adoption: Jurisdiction) [2016] UKSC 15, [2016] 3 FCR 394, [2016] 1 FLR 1082.

Placement for adoption and adoption proceedings: jurisdiction

The jurisdiction of a court in England and Wales to determine an application for a placement for adoption order or an adoption order is not governed by the BIIR Regulation.1

With respect to an adoption application the jurisdiction of a court in England and Wales is determined solely by reference to the domicile or habitual residence of the proposed adopter(s), provided all other conditions relating to the age of the child and

[127]–[129]

[130]–[131]

[132]–[150]



the circumstances of the adopters are satisfied.2 The English court will have jurisdiction if one of two conditions is satisfied, namely either that at least one of the couple (or the single applicant) is domiciled in a part of the British Isles or that both of the couple (or the single applicant) have been habitually resident in a part of the British Isles for at least a year prior to the date of the application.3

Where a child is habitually resident in another state the question of jurisdiction is determined in accordance with the Adoption (Inter-Country Aspects) Act 1999 and the Adoptions with a Foreign Element Regulations 2005.4

The nationality, domicile, habitual residence or presence within the jurisdiction of the natural parents are not relevant criteria for determining if the English court has jurisdiction to dispense with the natural parent’s consent to adoption.5 The applicable law for determining the issues in the case, including that of the court’s jurisdiction, will be English law.5

1 See [130].2 For ‘who can be adopted’, see [41], for ‘who can adopt’, see [51].3 ACA 2002, s 49.4 For ‘inter-country adoption’, see [751].5 Re N (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FCR 217, [2016] 1 FLR

621.

Adoption: Key Principles - BPRO€¦ · Adoption: Key Principles D[11] ‘To that the answer is always the same – and it is always a good one – adoption gives us total security

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