Adoption (non-agency)

This page explains the legal process of non-agency adoption, which involves placements not arranged by a local authority or a registered adoption agency. It explains who can adopt a child, the application process for non-agency adoption, and post-adoption contact.

What is non-agency adoption?

Non-agency adoption is the name given to adoption applications which involve a child who has not been placed with the prospective adopter by an adoption agency.

The principal categories of non-agency adoption are:

• Step-parent adoption (application by the partner of the parent of a child)
• Applications by local authority foster carers
• Applications by relatives of the child

Who can adopt a child?

Adoption by a couple (Section 50 Adoption and Children Act 2002): 

(1) An Adoption Order may be made on the application of a couple where both of them have attained the age of 21 years.

(2) An Adoption Order may be made on the application of a couple where:

• one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and
• the other has attained the age of 21 years. 

Adoption by one person (Section 51 Adoption and Children Act 2002):

(1) An Adoption Order may be made on the application of one person who has attained the age of 21 years and is not married/in a civil partnership.

(2) An Adoption Order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted.

(3 and 3A) An Adoption Order may be made on the application of one person who has attained the age of 21 years and is married/in a civil partnership if the court is satisfied that:

• the person’s spouse/civil partner cannot be found,
• the spouses/civil partners have separated and are living apart, and the separation is likely to be permanent, or
• the person’s spouse/civil partner is by reason of ill-health, whether physical or mental, incapable of making an application for an Adoption Order.

Residence requirements

In the majority of cases, the child must have had their home with the prospective adopter for a minimum duration of time before the application can be made.

Section 42 Adoption and Children Act 2002 outlines the residence requirements as follows:

• Step-parent adoption: The child must have had their home with the applicant(s) at all times during the period of six months preceding the application.
• Local Authority foster parents: The child must have had their home with the applicants at all times during the period of one year preceding the application.
• In any other case: The child must have had their home with the applicant, or in the case of an application by a couple, with one or both of them, for not less than three years (whether continuous or not) during the period of five years preceding the application.

If a prospective adopter does not meet the residence requirement that applies to their situation, they can still apply to court, but they must first obtain the court's permission. Section 42(5) Adoption and Children Act 2002.

Notice of intention to apply

Section 44 Adoption and Children Act 2002 discusses the requirement to provide 'notice of intention to adopt' to the local authority. 

You must notify the local authority for the area in which they live of your intention to apply for an adoption order for non-agency adoption. The notification must be given no more than two years, and no less than three months, before the date on which the Adoption Order application is filed.

The local authority is required to 'investigate' the matter upon receipt of the notice in order to prepare a report for the court. Local authorities must have procedures in place for responding to notices of intention and assigning a suitably qualified social worker to the case.

If the leave of the court is required because an applicant does not meet the 'residence requirement,' the leave must be obtained before providing the 'notice of intention to adopt' to the local authority.

The local authority has the opportunity to discuss your adoption hopes and expectations with you, as well as to offer advice and information. It will be critical to ensure that the child, if of sufficient age and understanding, is aware of the proposal and has the opportunity to express his or her opinion.

Separate interviews with the birth parent and proposed adopter are recommended in case of any safeguarding issues or undue pressure. Although a formal health report is not required in step-partner adoptions, it should be determined whether there are significant health issues that could affect the application.

The application and court process

An application for a non-agency Adoption Order is made on A58 form which is available online or from the local family court.

There is a fee of £201. If you are low-income and/or in receipt of certain benefits, you may be eligible for a fee exemption/reduction by submitting an EX160. The EX160A has further details on the fee exemption. 

The respondents will be each person with parental responsibility for the child (unless they have given notice stating that they do not wish to be informed), any person who is named in a Child Arrangements Order as a person with whom the child is to have contact or spend time with, and the child in rare cases.

The court will initially convene a first directions hearing where a number of issues will be considered with a view to ensuring the case is prepared for a final hearing.

If one parent or both parents oppose the making of an Adoption Order, the principle issue to be determined at the final hearing is likely to be whether their consent should be dispensed with.

The court cannot dispense with the consent of any parent or guardian of a child to the making of an Adoption Order in respect of the child unless the court is satisfied that:

• the parent or guardian cannot be found or is incapable of giving consent, or
• the welfare of the child requires the consent to be dispensed with. Section 52(1) Adoption and Children Act 2002. 

Do children remain in contact with their birth family?

Adoption can include ongoing contact between the birth parents and the adoptive family, either directly (face to face, by phone) or indirectly (via a confidential letterbox). Direct contact is less common, but children with siblings who live elsewhere may be encouraged to maintain direct contact with their siblings.

The most common form of contact is confidential letterbox contact, which involves an exchange of information between the birth family and the adoptive family once or twice a year, with communication handled by the confidential letterbox service so that addresses are not shared. 

Post-adoption contact can be found in Section 51A Adoption and Children Act 2002.

During the process of granting the Adoption Order, the court may make an order under S51A on its own initiative. If this does not happen, an application can be made on an A53 form in order to apply for contact or prohibit contact. Unless it is the child or the adoptive parent applying, leave of the court is required first via a C2 form. There is a fee of £201. If you are low-income and/or in receipt of certain benefits, you may be eligible for a fee exemption/reduction by submitting an EX160. The EX160A has further details on the fee exemption.

Step-parent adoption

An application for step-parent adoption can be made by the partner of a child’s parent. If the applicant is not married to/in a civil partnership with the child’s parent, they will have to demonstrate that they are living together in a lasting relationship.

The step-parent can make the application as a sole applicant. There is no requirement to apply jointly with the parent of the child, as per Section 46(3)(b) Adoption and Children Act 2002. 

If a step-parent adoption application is approved, the adoptive parent will have parental responsibility for the child, akin to that of a biological parent. The adoptive parent's partner, i.e. the child's parent, will retain parental responsibility.

Please keep in mind that if an Adoption Order is issued, the other biological parent's parental responsibility will be terminated, depriving them of their legal relationship with the child.

Adoption applications are typically denied if the non-resident parent is actively involved in the child's life and does not pose a serious risk of harm to the child.

If the non-resident birth parent has parental responsibility, their consent is required before an Adoption Order can be made, unless the court waives consent on one of the statutory grounds. Even if such consent is not required, the report's author must make every reasonable effort to ascertain their views and wishes regarding the proposed adoption, as well as gather information about them for inclusion in the report. The views and wishes of members of the extended family are also likely to be relevant, and the social worker must consider whom to approach.

Application by local authority foster carers

If a local authority foster carer has a looked-after child placed with them by a local authority or an independent fostering agency, and the local authority responsible for the child supports the adoption plan, the local authority responsible for the child should be willing to assess and approve the foster carer as an adopter. This would be considered an "agency adoption."

If a foster carer does not have the support of the local authority responsible for the child, the foster carer can apply as a 'non-agency' applicant if the residence requirement is met.

Application by relatives or private foster carers 

A close relative or private foster carer may apply for non-agency adoption if the child has lived with the applicant or, in the case of a couple, with one or both of them for at least three years (whether continuous or not) in the five years preceding the application.

If a prospective adopter does not fulfil the residence requirement which applies to their circumstances, it is still possible to make an application to court but the leave of the court is required first. See Section 42(5) Adoption and Children Act 2002.

This is likely to cover situations such as adoption by relatives who already hold parental responsibility through a Special Guardianship Order, Residence Order (prior to 22nd April 2014) or Child Arrangements Order.