This page explains the legal process of non-agency adoption which involves placements that have not been arranged by a local authority or registered adoption agency. It explains who can adopt a child, what is process in order to apply for non-agency adoption and post-adoption contact.
Why are children adopted and what is the effect of an adoption order?
Children may be adopted because they are unable to be raised by their own birth parents and it is deemed to be in their best interests to provide them with a permanent new family. When a child is adopted, the parental responsibility of their biological parents, as well as any other person who holds parental responsibility will end.
This can be found in Adoption and Children Act 2002, section 46 (2)(a).
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 (S.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 (S.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.
(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) An adoption order may be made on the application of one person who has attained the age of 21 years and is married if the court is satisfied that:
- the person’s spouse cannot be found,
- the spouses have separated and are living apart, and the separation is likely to be permanent, or
- the person’s spouse is by reason of ill-health, whether physical or mental, incapable of making an application for an adoption order.
In the majority of cases, the child must have had his home with the prospective adopter for a minimum duration of time.
S.42 of the Adoption and Children Act 2002 outlines the residence requirements and these are as follows:
- Step-parent adoption: The child must have had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application.
- Local authority foster parents: The child must have had his 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 his 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 fulfill 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. Section 42, sub-section 5, Adoption and Children Act 2002.
Notice of intention to apply
Section 44 of the Adoption and Children Act 2002 discusses the requirement to provide ‘notice of intention to adopt’ to the local authority.
An applicant for non-agency adoption must notify the local authority for the area in which they live of their intention to apply for an adoption order. The notification must be given not more than two years, or less than three months, before the date on which the application for the adoption order is made.
On receipt of the notice, the local authority is required to ‘investigate’ the matter with a view to preparing a report to the court. Local authorities need to have procedures in place for responding to notices of intention, and allocating a suitably qualified social worker to deal with the case.
If the leave of the court is required because an applicant does not satisfy the ‘residence requirement’, the leave of the court must be obtained first before providing the ‘notice of intention to adopt’ to the local authority.
The local authority has an opportunity to discuss with the proposed adopters their hopes and expectations of adoption and to offer them advice and information. It will be important to ensure that the child, if of sufficient age and understanding, is aware of what is proposed and is given an opportunity to express a view.
The application and court process
An application for a non-agency adoption order is made on form A58 which is available online or from the local family court.
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, sub-section 1 Adoption and Children Act 2002.
Do children remain in contact with their birth family?
Adoption can involve continuing contact between the birth parents and the adoptive family, either through direct (face to face, telephone) or indirect (confidential letterbox) contact. Direct contact is less common, although children who have siblings living elsewhere may be supported to remain in direct contact with their siblings. The most common form of contact is confidential letterbox contact, where an exchange of information once or twice a year takes place between the birth family and the adoptive family, with the communication handled by the confidential letterbox service so that addresses are not shared. Decisions about contact must always be considered when a child is adopted.
Post-adoption contact can be found in Section 51A Adoption and Children Act 2002.
It may be the case that the court on their own initiative make an order under S51A during the process of the adoption order being granted. 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.
An application for step-parent adoption can be made by the partner of a child’s parent. If the applicant is not married to 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. Section 46, sub-section (3b) Adoption and Children Act 2002.
If an application for step-parent adoption is successful, the adoptive parent will obtain parental responsibility for the child which will be akin to that of a biological parent. The partner of the adoptive parent, i.e. the parent of the child, will retain parental responsibility. It is however important to realise that the making of an adoption order has the effect of terminating the parental responsibility of the other biological birth parent and therefore they will be deprived of their legal relationship with the child.
An application for adoption will usually be unsuccessful 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. Where the non-resident birth parent holds parental responsibility, their consent will be required to the making of an adoption order, unless the court dispenses with consent on one of the statutory grounds. Even where such consent is not required, the writer of the report will need to make every reasonable attempt to ascertain their views and wishes concerning the proposed adoption, and to gather information about them for inclusion in the report. The views and wishes of members of the wider family are also likely to be relevant, and the social worker will need to consider whom it will be necessary to approach.
Application by local authority foster carers
If a local authority foster carer has a looked-after child placed with them through a local authority or independent fostering agency and the local authority responsible for the child supports the plan for adoption, they should be willing to assess and approve the foster carer as an adopter. This would be recognised as an ‘agency adoption’.
If a foster carer does not have the support of the local authority responsible for the child, a foster carer can make a ‘non-agency’ application if the residence requirement has been satisfied.
Application by relatives or private foster carers
A close relative or private foster carer can make an application for non-agency adoption if the child has had his 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.
This is likely to cover situations such as adoption by relatives who already hold parental responsibility through a special guardianship order, residence order or child arrangements order.