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Home > Online Reference > Family Law > Family Bench Book > Index |
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9. Adoptions |
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9.1 Introduction An adoption order is an order giving parental responsibility for a child to the adopters, made on their application by an authorised court.
You cannot afford to make a mistake. It is almost the only order which cannot be undone. 9.1.1 Jurisdiction
9.2 Application for a Freeing Order Section 18: On the making of an order under this section, parent al responsibility for the child is given to the adoption agency, either an Adoption Society or a Local Authority. 9.2.1 Originating Process Applications to free for adoption are to be made in the forms set out in Schedule 1 to the Adoption Rules 1984 (referred to hereafter as 'the Rule(s)'). There are side notes to the forms which contain information often not available elsewhere. Court staff should have job cards which assist them in making sure that the forms are correctly completed and that all the necessary documents have been filed. They may need help and should be encouraged to ask for it. 9.2.2 Documents to be filed by applicants The originating application (Form 1 in Schedule 1) and the documents referred to in it Schedule 1, Form 1, are as follows:
Adoption applications may be commenced in the following county or magistrates courts:
The clerk receiving the Application should check that all the necessary enclosures are there, but it is good practice for the judge to check these and, in particular the Statement of Facts and also authorise the next steps. In particular, the Schedule 2 Report should be carefully checked to see that all the matters specified are included. Some agencies use Schedule 2 as a pro forma, others, less helpfully, set out the matters in narrative form. It is important that the court and the guardian ad litem/reporting officer have all the information in order to make properly informed decisions. It should also be remembered that the information in the Report may be of great value to an adopted person in the future. An important matter often omitted is the summary by the Agency's medical adviser (paragraph 7(a)). A statement by the social worker preparing the report is not sufficient. Other important matters which should be included are proposals for contact direct or indirect with birth parents and siblings and whether there is a Life Story Book. British Agencies for Adopting and Fostering (BAAF)1# produce a useful leaflet, Practice Note 31 and The University of Wales Institute publish A Guide for Report Writers.2# Occasionally, it will be clear from the report that one of the parties lacks legal capacity, usually because a parent is not 18 or has a mental illness. In this case, a guardian ad litem should be appointed on the application of the applicants under CPR. There is a practice of appointing the adoption guardian ad litem as this guardian. This is not appropriate. 9.3 Next steps Rule 4(2) sets out the respondents and Rule 4(3) gives the court power to direct that other people or bodies be made parties. It is useful at this stage, having read the Schedule 2 Report, to consider if there should be such a direction. In particular, if a father without parental responsibility has played any part in the child's life or, indeed, has had anything other than a fleeting relationship with the mother, he should perhaps be made a party. It should be said that there are decisions of the Court which say that this is not necessary: see Re L (A Minor) (Adoption Application) [1991] 1 FCR 297 and Re H and Re G [2001], The Times 5 January. Rules 5 and 6 says that 'the proper officer' shall appoint the reporting officer or guardian ad litem but this is normally done on the direction of the judge. Note that Rule 6(2) gives the court power to appoint a guardian ad litem even where the parents are agreeing to the adoption if there are special circumstances and the welfare of the child requires it, in which case the order making the appointment should set out the special circumstances. Rule 9(1) provides that the proper officer shall give notice of the hearing which in the prescribed Form A3 includes the date 'as soon as practicable after the originating process has 1 BAAF: Skyline House, 200 Union Street, London SE1 0LX 2 Faculty of Cummunity Health Sciences: Western Avenue, Cardiff, Wales CF5 2YB been filed'. The major problem that arises from this Rule is that if a date is fixed and notice given to all the parties it is almost certain that delays of one sort or another will arise and the hearing will have to be adjourned thereby causing great distress to the applicants and more particularly the child if he or she is old enough to know what is happening. It is probably therefore best to leave the fixing of a hearing date until the reports of the Reporting Officer/Guardian ad litem have been filed and checked by the Judge. 9.4 Application for Adoption 9.4.1 Originating Process Applications for adoption are to be made in the forms set out in Schedule 1 to the Adoption Rules 1984 (referred to hereafter as 'the Rule(s)'. There are side notes to the forms which contain information often not available elsewhere. 9.4.2 Documents to be filed by applicants
Adoption applications may be commenced in the following county or magistrates courts:
NB: In these circumstances the court cannot make an order until the child is at least 12 months old and has had his or her home with the applicants for 12 months. This does not prevent the application being made. In the case of a placement by an agency or a step parent adoption, the child must be at least 19 weeks old and have had its home with the applicants for at least 13 weeks, again at the time the order is made. 9.4.3 Next steps Rule 16 imposes a duty on the proper officer to seek directions from the judge if either a previous application for adoption has been refused or it is thought the court has no jurisdiction. This is a very rare occurrence and normally directions are not sought immediately on the filing of the application. If, however, the court receives an application to adopt a child from abroad it is sensible for a judge to see it straightaway Ð see 9.6 below. Rules 17 and 18 provide for the appointment by the proper officer of a Reporting Officer or Guardian ad litem 'as soon as practicable after the originating process has been filed'. It is usually best to delay such appointment until after the Schedule 2 Report has been filed since Reporting Officers and Guardians are usually unwilling to start their work until they have seen that Report and the judge may need to appoint a Guardian ad litem even where the parent(s) agree if there are special circumstances and the welfare of the child requires it. In this case, the order should set out the special circumstances. Rule 21(1) provides that the proper officer shall list the matter for hearing and give notice of the hearing, which in the prescribed form includes the date, 'as soon as practicable after the originating process has been filed'. The major problem that arises from this Rule is that if a date is fixed and notice given to all the parties it is almost certain that delays of one sort or another will arise and the hearing will have to be adjourned thereby causing great distress to the applicants and more particularly the child if he or she is old enough to know what is happening. It is probably therefore best to leave the fixing of a hearing date until the reports of the Reporting Officer/Guardian ad litem have been filed and checked by the Judge. On the other hand, if a date is not given the preparation of the Schedule 2 may be delayed, which may be the reason for Rule 21(4) which says that where section 22 applies (see below) the matter should be listed within three months of the applicants' having given notice to the local authority. Having said all this, it seems now to be almost general practice that a date is not given until all the reports have been filed and the judge has made sure that everything is in order. Familyman has a standard letter which is sent to the Adoption Agency or Local Authority, setting out the time limit for the lodging of the report. Rule 22 provides for either the placing agency or, where the child has not been placed by an agency, the local authority to which the applicants are required by section 22 to give notice, within six weeks of their receipt of the notice of hearing to file a report in writing covering all matters specified by Schedule 2 of the Rules. Generally, if the local Authority are the placing agency there is no delay with the time taken to file the Report, but problems do arise where the local authority is required to prepare a report under section 22 following notification by the applicants, usually as step parents. Local authorities do not regard such work as having the same priority as child protection. It is necessary to keep the preparation of Reports under supervision and if necessary involve the senior management of the local authority social services department. There is also a tendency for student social workers to be asked to do the work, since it is considered that step parent adoptions do not require skill or experience. This is, of course, not the case and again it may be necessary to involve senior management. Where the adoption application follows a freeing order the Schedule 2 Report must be brought up to date. The Schedule 2 Report should be carefully checked to see that all the matters specified are included. Some agencies use Schedule 2 as a pro forma others, less helpfully, set out the matters in narrative form. It is important that the court and the guardian ad litem/reporting officer have all the information in order to make properly informed decisions. It should also be remembered that the information in the Report may be of great value to an adopted person in the future. An important matter often omitted is the summary by the Agency' medical adviser (paragraph 7(a)). A statement by the social worker preparing the report is not sufficient. Other matters which should be included are proposals for contact direct or indirect with birth parents and siblings and whether there is a Life Story Book. British Agencies for Adopting and Fostering (BAAF)#3 produce a useful leaflet, Practice Note 31 and The University of Wales Institute publish A Guide for Report Writers. 4# Occasionally, it will be clear from the report that one of the parties lacks legal capacity, usually because a parent is not 18 or has a mental illness. In this case a guardian ad litem should be appointed on the application of the applicants under CPR. There is a practice of appointing the adoption guardian ad litem as this guardian. This is not appropriate. Once the Schedule 2 Report has been read it is necessary to consider whether a direction should be made to make other persons or bodies parties to the proceedings in accordance with Rule 15(3). Rule 15(2) sets out the persons and bodies who are automatically respondents and normally the only person who has to be considered is the father without parental responsibility. It may be thought that any birth father who has had anything more than a fleeting relationship with the mother should be made a respondent. It should be said that there are reported decisions which do not appear to agree with this proposition.5# Sometimes the mother refuses to identify the father. Such refusals should be carefully considered and, if necessary, the person who prepared the Schedule 2 Report should be asked for further information. In step parent adoptions, care should be taken to make sure that the child knows that the applicant, other than the actual parent, is not his or her father. If the child is too young then assurances should have been sought by the writer of the Schedule 2 Report that he or she will be told. It may be thought that section 6 imposing a duty on the court to give first consideration to the welfare of the child, would prevent the making of an adoption order in these circumstances, but there is no authority on this. If, as is likely, this is the first time that the judge has seen the adoption applications then they should be checked to make sure that sections 11, 13, 14 and 15 have been complied with. Section 11 deals with illegal placements. It still happens that a child is placed by a person, not an agency, with someone who is not a 'relative' as defined by section 72(1) of the Act. If this happens it is best to transfer direct to the High Court. Section 13 deals with the age of the child and the time that the child has spent with the applicants at the time the order is made, not at the time of the application. Section 14 deals with the status of married couples applying for adoption and section 15 deals similarly with the status of adoption by one party. If a couple is not married, then only one of them can adopt but the other can apply for a residence order. It is also sensible to make sure that the Statement of Facts is in order. Where the child has been freed for adoption it is just as well to ask for the freeing file to make sure that no orders or promises for contact have been made. Rules 17 and 18 provide for the appointment of a reporting officer or guardian ad litem. Although this is the duty of the proper officer it seems to be general practice that this is done by the judge after considering the contents of the Schedule 2 Report. Rule 18(2) gives the (3)
BAAF: Skyline House, 200 Union Street, London SE1 0LX 9.5 Steps before the hearing in freeing and adoption applications Once the reports have been received from the reporting officer or guardian ad litem the file should be seen preferably by the judge who will be hearing the application. 9.5.1 The reporting officer will normally produce a short report confirming that the person or persons agreeing have fully understood what they are doing and that the agreement is unconditional (section 16(1)(b)(i)). The duties of a reporting officer are set out in Rules 5 and 17. It is sensible to make sure that all the duties have been performed. It is possible that the agreement is given on the understanding that there will be some form of contact. Such understanding may well not amount to a condition, although there appears to be no direct authority on this. The issue of contact is dealt with at 9.10 below. Apart from this, it is as well to check that the report raises no other issues which need resolving before the hearing, for example, an unwillingness to tell a child about his or her real parents. This sort of matter should have been dealt with in the Schedule 2 Report, but if this has been prepared by an inexperienced social worker, such matters may be picked up by the reporting officer who being appointed from the Panel#6 of guardians and reporting officers, will always be both skilled and experienced. Not infrequently, a reporting officer will discover that a parent whose agreement it has been assumed will be given when faced with signing the Agreement Form, refuses to do so. In the case of an adoption application, if the placement has been made by an agency it is preferable for that agency to be contacted rather than notifying the applicants direct, since the news is far better coming from the agency social worker than by way of a letter from the court. It will, of course, be necessary in these circumstances for the applicants to amend their application to ask the court to dispense with the agreement of the parent and file a Statement of Facts. If, as is often the case, the applicants have been acting in person they should be advised to seek competent legal advice. If an agency has placed the child then such advice should be arranged by it. 9.5.2 The guardian ad litem's report will require careful study. The duties of a guardian are set out in some detail in Rules 6 and 18 and it is sensible to make sure that the guardian has performed all such duties. It will almost always raise issues that require resolution. Apart from contact, a guardian will sometimes find a parent whom the applicants will have said in the Statement of Facts cannot be found. Again it is best in the case of an adoption application that if the child has been placed by an agency, that agency should be told rather than the applicants. If it is a step parent application, such a discovery will tend to throw doubt on the good faith of the applicants. If the issues raised are anything other than straightforward then an appointment for directions should be ordered. The guardian's report should also say whether or not in his or her opinion the child should be present at the hearing Ð see Rules 6(6)(b) and 18(6)(b). (6) section 41(7) of the Children Act 1989 The Schedule 2 Report and the reports of the reporting officer and guardian ad litem are confidential to the court and will not have been sent to the parties like a Court Welfare Officer's report Ð see Rules 5(8) and 6(11). Rule 53 sets out in some detail the powers of the court to disclose any part of the report. It is also necessary to look at the decision of the House of Lords in Re D (Adoption Reports: Confidentiality) [1995] 2 F.L.R. 687. If the application is legally difficult and possibly involves other applications under the Children Act in which the guardian has not been formally appointed, the guardian may want legal representation. A legal fiction has been created by which the guardian is made a party thus enabling legal aid to be granted. This should only be done where there are genuine legal difficulties. Where there are applications for contact, or for the discharge of a care order, a guardian will normally be appointed under section 41 of the Children Act. If such an application is made after an application for freeing or adoption has been made, then, a directions hearing should be ordered at which the adoption guardian should be appointed as the Children Act guardian and orders made as to the disclosure, if appropriate, of reports filed in the adoption proceedings. It would seem wrong to order such disclosure until the judge has seen the reports and judicial discretion can be properly exercised. In most cases the applications should all be heard by the same judge at the same time, but this and the order in which the applications are heard will depend on the circumstances. 9.6 The hearing Notice of the hearing is given on Form A8, initially without an actual date (see 9.4.3 above) but when a date is fixed, then notice is given to all parties in contested cases, but in uncontested cases the practice has arisen in many courts of not notifying anyone other than the applicants. This is arguably wrong as a matter of law, since someone who has agreed to an adoption has the right to change his or her mind at any time up to the making of the order. Form A8 is used in a serial number adoption, a form of notification which gives the respondent the option of attending and being heard on giving notice to the court by a fixed date. 9.6.1 Uncontested hearings Uncontested freeing applications are straightforward but remember subsections (6) and (7) of section 18 of the Act:
Uncontested adoption hearings are important, very happy, if somewhat daunting, occasions for the applicants and the child or children. However straightforward the case may seem to the judge, the applicants will have been worried that something could go wrong. How the judge deals with them is a personal matter. Some judges will be robed if this is what the applicants want. Some judges will ignore the statutory prohibition on photographs. Some courts and some agencies provide certificates for the judge to sign on the day. Some judges feel that it is helpful to spell out what adoption means, others will assume, hopefully correctly, that the applicants have already been told. It may be thought useful to tell applicants what happens next. The court, apart from sending a copy of the order to the applicants, will send a further copy to the General Register Office at Birkdale, Southport which then sends the adoption certificate to the new parents within a couple of months. At holiday times when the new certificates are needed for passports, requests can be made for speedier treatment. The child must, of course, be present Ð see Rule 23(4). 9.6.2 Contested hearings If the applicants in an adoption application have asked for a serial number under Rule 14 to keep their identity confidential, then arrangements will have to be made beforehand for the applicants and the birth parents to be kept apart Ð see Rule 23(3). Equally, the birth parents or their representatives are entitled to ask the applicants questions, both in relation to the general welfare matters relating to the child dealt with in section 6 and, possibly the allegations set out in the Statement of Facts. This used to be done by having separate hearings, the first dealing with application to dispense with agreement at which the applicants were not present, followed then if such application was successful, by a hearing at which the adoption order could be made. This practice was disapproved of by the Court of Appeal in two decisions Re K (A Minor) (Adoption: Procedure) [1986] 1 F.L.R. 295 and Re LS (A Minor) (Adoption: Procedure) [1986] 1 F.L.R. 302. A Family Hearing Centre at which all such applications must be heard, should be able to provide equipment which would enable the applicants to be in one room or court, and the birth parents in the other. Care must also be taken that the parties do not meet in the court precincts. If application has not already been made the parties, representatives may well ask to see the guardian's repor t- see 9.4.2 above. There is a danger that negotiations may take place at the court door as a result of which applicants are persuaded to agree some form of contact in return for the birth parents' agreeing to the adoption. Contact is something which must be carefully negotiated and explained over a period of time in order to prevent misunderstandings and further applications to the court - see 9.10 below. If the birth parents do agree to the adoption at the court door, then the guardian who must be present (Rules 6(10) and 18(7)) should be asked to act as Reporting Officer, such agreement need not be in writing - see Re LW [1991] 1 FCR 867. The court will normally hear the evidence of the applicants first - be they the adoption agency or the proposed adopters, followed by the evidence of the birth parents. Apart from the parties, the guardian should be asked if he or she wants to ask the witnesses any questions. The court must first consider whether adoption is in the interests of the child. The tests are clearly set out in section 6. The court must then consider whether it should dispense with the agreement of the parents to the freeing or the adoption. The grounds are set out in section 16. Where the ground is that the parent cannot be found, care must be taken that all possible enquiries have been made, particularly in the case of step parent adoptions - see 9.7 below. The law relating to the most common ground - that of unreasonably withholding agreement is, as has frequently been said, artificial. It is not the function of these notes to deal with that law and judges should refer to the standard works. The leading case remains Re W [1971] A.C. 682, all subsequent decisions simply illustrate how it works in different circumstances. In the case of a freeing application, in addition, the court must be satisfied that the child is either placed or is likely to be placed for adoption - see section 18(3). The other grounds do not seem to be much used but again reference should be made to the standard books. Remember in freeing applications subsections (6) and (7) of section 18 of the Act apply - see 9.6.1. 9.7 International adoptions The simplest, but most uncommon form of international adoption, is where applications are made under section 55 of the Act by applicants not domiciled in the United Kingdom, for leave to take a child out of the United Kingdom with the intention that the child should be adopted overseas. The court can then give the applicants parental responsibility. Without leave an offence is committed under section 56. Rule 48 deals with the procedure which is quite complicated. This country is a signatory to the Hague Convention on the Adoption of Children, as are at present only Austria and Switzerland. Where children or adults are nationals or habitual residents of these countries, application can be made to the High Court under section 17 of the Act for a convention adoption order. This country also recognises adoption orders made in various countries. These countries are set out in the Adoption (Designation of Overseas Adoptions) Order 1973 which is set out in the standard books. Countries are always being added and Family Law keeps the list up to date. Note that the People's Republic of China is included not in the Schedule, but in paragraph 2(A) of the Order. The child in these cases has a right of entry and can apply for registration as a British Citizen. The most common and most difficult applications are those where the applicants have brought a child from abroad and wish to adopt him or her in this country, in order apart form the normal reasons for adoption, to give the child British Nationality so the child can stay in the country. In these cases, swift action is necessary since if the applicants have not complied with the Department of Health' Guidance, both the Home Office and the Department of Health should become involved at the earliest moment.7# The standard books contain helpful information about this - see Clarke, Hall and Morrison on Children Division 3 Adoption, paras 346 et seq. and R (A Minor) (No. 2) (Inter-Country Adoption: Practice and Procedure) [1999] 1 FCR 641. The Adoption (Inter-Country Aspects) Act 1999 has received the Royal Assent but the necessary draft regulations seem unlikely to be sent out for comment until the summer of 2000. The best practice must be to transfer any inter-country adoption about which there is the least doubt to the High Court. The latest Practice Direction dealing with such transfer is that of November 23, 1993 Ð see [1994] 1 FLR 110. The Directions seek to limit transfers to 'those cases giving rise to issues of complexity, difficulty or gravity'. The Direction goes on to say that such transfers should be made of the Court's own motion but after having given notice of the hearing to the parties, usually the applicants and the Local Authority, and to the Guardian ad litem, if appointed. Clearly if the parents of the child can be notified, they should be. 9.8 Step Parent Adoptions This is not really a separate topic, since all that has been said with regard to forms and procedure in 9.3, 9.4 and 9.5 applies. Particularly, care must be taken to make sure that the Schedule 2 Report deals properly with the child's knowledge of his or her other parent (paragraph 1(o)), give all necessary information about the other parent (paragraph 2) and why an adoption rather than a residence order is being sought (paragraph 4(e)). This latter point of residence/adoption should be fully dealt with also at paragraphs 5(a)(ii) and 7(e). Applicants' claims that the other parent cannot be found should be treated with suspicion and they should show that all possible efforts have been made to find him or her. Questions of International adoption sometimes arise, where a British national has married a foreign national and now wishes to adopt her or his child, in which case the agreement of the other foreign parent must be signed before a properly authorised person Ð see Rule 20. Any foreign court orders should be produced with a notarially witnessed translation. 9.9 Applications for removal of a child placed for adoption Section 27 of the Act prevents a parent who has agreed to an adoption from removing a child from the people with whom the child is living if an application for adoption has been made to the Court, unless the parent has the leave of the Court. Similarly, if an application has been made to free a child for adoption, the child is in the care of the applicant and the parent has not agreed to the application, the leave of the Court must be obtained. The procedure is set out in Rule 47. ( 7) One can generally see whether the Guidance has been followed if the application is accompanied by a home study report prepared by the applicant's Local Authority (some Local Authorities are still very reluctant to prepare these and may have asked another agency to do this. A privately commissioned report should be treated with great suspicion). This report should have been available to the Foreign Court making the Adoption Order, a properly notarised translation of all of whose poceedings, should also have been filed with the Court. Most important of all, there should be an entry clearance for the child from the Home Office. If all this seems to be in order then it may be worth while asking for a very quick Schedule 2 Report. If the Local Authority prepared the home study report, then it should be able to update its material very quickly. One can then make a properly informed decision as to transfer to the High Court. Section 28 of the Act deals with a more common situation. If an application is made to the Court by applicants with whom the child has lived for five years, then again, the leave of the Court is required before the child can be removed. Similarly, if notice of an intention to adopt has been given to the Local Authority, there is a protection against removal before an application to adopt is made. This is a fairly superficial summary of the section and if such an application is received the section must be looked at carefully and the standard books consulted. 9.10 Applications to the Court for information Applications are made both by adopted persons and birth or biological parents. Applications by adopted persons generally come to the Court on Form CA6 from the Office for National Statistics to which an application has been made for a birth certificate. A tear-off section of the form requests the Court to send to the applicant, either an adopted person or a social worker making application on his or her behalf, the name and address of the placing agency and the name of the Local Authority to which notice of intention to adopt was made. This form is often completed by a court clerk, but unless he or she is very experienced and thorough the information may be wrong. Continuous local government reorganisation and the closing of many voluntary adoption agencies makes the task difficult. Local knowledge can usually deal with the disappearance or reappearance of local authorities and BAAF publishes a book which sets out which Local Authority holds the records of defunct agencies. This information is very important to the applicants and they are entitled to accurate information. Sometimes the Local Authority or Adoption Agency do not have the information sought and the applicant or social worker will ask to see the Court file. Rule 53(4) gives the Court discretion to allow any person to inspect any adoption document. There are mixed views about the width of this discretion. There is no recognised procedure. H.H.J. Barnett in an article in [1997] Family Law 489 takes the view that to be consistent with the procedure recognised by the Courts in applications to the Registrar General, an ex parte summons should be issued and the Court should then consider who should be made parties to such application. Others take the view that such formality is not necessary and that so long as great care is taken a judge can give out information preferably to a social worker acting as a counsellor. The position with regard to birth relatives is more difficult and the best practice may be to refer them to the Office for National Statistics to ask for inclusion on the Adoption Contact Register set up under section 51A of the Act, which enables the initiative to be taken by the adopted person. 9.11 Adoption and Contact The court has power to make a contact order under section 8 of the Children Act during adoption proceedings since adoption proceedings are included in definition of family proceedings. If the child is subject to a care order, contact to birth parents and siblings will generally have been dealt with in the care plan put forward in the care proceedings. If the adoption proceedings are taking place some time after the care proceedings, the birth parent may not only be refusing to agree to the adoption but also applying to discharge the care order and/or applying for contact. The proceedings must be heard by a care judge who should at a directions hearing appoint the adoption guardian ad litem as the guardian in the discharge/contact proceedings and direct that the applications should be heard together. It is extremely unusual to impose contact on adopters and if the adopters are agreeing to contact, then there is probably no need for an order. The standard works deal with this question in more detail. If an application for contact is made after the adoption order has been made the procedure set out in Re T (Minors) (Adopted Children: Contact) [1995] 2 F.L.R. 792 should be followed. Leave has to be sought by the birth parent for the application to be made and on the hearing of this application the judge should have available all the previous files relating to the child. The Agency who placed the child should if possible be made parties, but the adopters should not only not be made parties but also not even informed of the application. 9.12 Interim Orders The Court has power to make an interim order under section 25 of the Act which postpones the determination of the adoption application and can make a residence order for a maximum of two years.
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