Leave to oppose an Adoption Order following Care Proceedings

At the conclusion of Care Proceedings, a Judge may make Final Care and Placement Orders in respect of the child or children.

The Care Order gives the Local Authority parental responsibility for the child (alongside the parents and other holders of parental responsibility) and allows them to take the child into the care of the Local Authority.

The Placement Order gives the Local Authority the ability to place the child for adoption and to place the child with a suitable prospective adoptive family.

When a child who is subject to a Placement Order is placed with a prospective adoptive family, the prospective adopters may (after waiting a period of 10 weeks following the child being placed with them) apply for an Adoption Order in respect of the child. An Adoption Order creates new legal relations between the child and the adoptive parents and severs all legal ties between birth parents and the child. An Adoption Order is final and cannot be reversed.

What can birth parents do?

Parents or those who have parental responsibility, and who have had a change in circumstances, can apply under Section 47(7) Adoption and Children Act 2002 for leave to oppose the making of an Adoption Order. Parents or those who have parental responsibility cannot automatically oppose the making of an Adoption Order. Instead, they must first get ‘leave’ (permission) of the Court to do this.

Parents will receive an adoption application notifying them that the prospective adopters are applying for an Adoption Order to be made. The Court will also send a notice of hearing, which will tell parents that the application made by the prospective adopters will be considered at a hearing, inviting parents to attend if they wish to oppose the making of the Adoption Order.

At this stage, parents can instruct a solicitor to represent them in the adoption proceedings. All parents and holders of parental responsibility are entitled to legal aid to oppose the making of an Adoption Order.

The initial hearing is usually very quick and will be a chance for parents to simply confirm they seek permission from the Court to oppose. The Court will then list the matter for a hearing to consider this further.

The Legal Test

When the Court considers whether to grant leave, it should consider the 2-stage process established in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616:-

• Has there been a change of circumstances “of a sufficient nature and degree”? And, if so,

• Should the Court then exercise its discretion to permit opposition to the adoption application?

Has there been a change of circumstances “of a sufficient nature and degree”?

To get permission to oppose the making of an Adoption Order in respect of their children, parents need to demonstrate that they have made sufficient and sustained changes to their circumstances.

The case of Re P sets out that the change in circumstances does not have to be “significant” but needs to be of a nature and degree sufficient to open the door to a consideration of whether leave to oppose should be given.

The change of circumstances must be something that is at least part of the reasoning behind the child having been placed for adoption in the first place. For example, if parents had struggled with alcohol or drug misuse during Care Proceedings, they will need to show that, since the Care and Placement Orders were made, they have stopped using drugs and/or alcohol. Other examples of changes could be:

• Leaving a domestically abusive relationship and engaging with domestic abuse work;
• Securing appropriate housing;
• Engaging with mental health support;.
• Attending parenting courses

It is important to show that these are not “recent” changes and that these changes have been sustained over a period of time.

Should the Court then exercise its discretion to permit opposition to the adoption application?

With regard to the second stage of the test, the child’s welfare throughout their life is paramount.

In deciding whether to grant parents permission to oppose the making of an Adoption Order, the Judge will need to refer to, and consider, the welfare test set out in Section 47(5) ACA 2002:

• (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 (c. 41)) 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 other person in relation to whom the court or agency considers the relationship 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.

If the Judge is satisfied that both parts of the test have been met, they may grant permission for parents to oppose the making of an Adoption Order.

If leave is granted, further assessments may be considered by the Court and carried out. A Children’s Guardian may also be appointed for the child or children.

If leave is not granted, then the Court will list a Final Hearing no less 21 days following this, to consider granting the Adoption Order.

Legal Aid for Adoption Proceedings

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023, means that those making an application for leave to oppose after 1 March 2023 are able to access non-means and non-merits tested legal aid.

If you receive notice that an Adoption Order has been applied for in respect of your child, you should contact a solicitor as soon as possible.

Support

Our dedicated Child Care Team offers legal advice to parents and family members involved in this area of law. Should you require any assistance, please contact our Child Care Team on 01935 424581.

This blog was co-authored by Abbie Duncan and Kirby Mullis.