Published: Wed, 07 Mar 2018
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or LawTeacher.net This Chapter was last updated on 2 August 2000
An adoption order made by an “authorised court” (that is, a Family Proceedings Court, a County Court or the High Court) transfers a child from one family to another by vesting parental responsibility for the child in the adopter(s) and terminating the parental responsibility (if it still exists) of the child’s birth parents or the local authority. Thereafter, the child is treated for nearly all legal purposes as if he or she had been born as the legitimate child of the adopter’s or adopters’ marriage and not as the child of anyone else. A child may even acquire a new nationality through adoption, but cannot generally inherit a peerage or other title of honour, and remains within the prohibited degrees of kinship to members of his birth family.The relevant law is contained largely in the Adoption Act 1976.
Re A (Adoption: placement)  1 WLR 229, Anthony Lincoln J
A representative of a US adoption agency brought a child to England (with the approval of the Salvadorian courts) for adoption by a British couple. The judge held the “placement” did not occur until the child was handed over on British soil, and was consequently illegal under s.11 of the Act, but exercised the power of the High Court under s.29 to authorise this placement retrospectively and referred back to the County Court the question whether an adoption order should in fact be made.
Re an Adoption application  1 FLR 341, Times 31/10/91, Hollings J
A prospective adopter H went to El Salvador to pick up a baby whose adoption had been arranged by an American agency and approved by the Salvadorian authorities, and returned with it to his wife W in the UK. H was at that time under investigation for fraud, for which he was subsequently convicted and imprisoned, being released after 18 months. When H and W applied to adopt, the local authority objected because of H’s background, the unlawful placement, and public policy considerations. The judge noted these objections and criticised H’s conduct, but said the child’s welfare must come first. The child was now well settled with H and W, and he therefore exercised his discretion to authorise the placement and make an adoption order.
Re ZHH (Adoption application)  Fam Law 537, Booth J
An unmarried mother arranged for her child to be taken in by a personal friend, with a view to adoption. The judge said this was technically an unlawful placement, but exercised her discretion to authorise it retrospectively and made an adoption order.
Re C (Adoption application)  Fam Law 538, Booth J
An elderly couple H and W wanted to adopt but knew they would not be approved by any agency because of their age. They made a private arrangement with a pregnant woman M and agreed that H should pass himself off as the child’s natural father. They made various payments to M, some of them probably illegal under the Adoption Act 1976, but by the time of the adoption proceedings M (who had originally consented) was having second thoughts. The judge said this was clearly an illegal placement and that she would have refused the adoption order had not H and W withdrawn their application during the course of the hearing.
Re AW (Adoption application)  Fam Law 539, Bracewell J
An elderly couple PP arranged for a pregnant woman X to give birth in Germany and then bring it home to England for adoption by PP. The whole matter was shrouded in secrecy, the child’s existence being concealed from doctors and social workers in the hope that by the time it was discovered the adoption would be almost a fait accompli. In subsequent adoption proceedings, the judge said there had been a clear violation of the Act. She refused an adoption order in view of PP’s deceitful conduct, their health, the state of their marriage, and H’s alcoholism, but (giving first place to the welfare of the child) made an interim order for two years with regular checks by the local authority.
Re W (Adoption)  Fam Law 41, Douglas Brown J
A child from El Salvador was received for adoption by an English couple, the wife collecting the child abroad and bringing it back to her husband in the UK. The judge said that a “placement” can occur even when one prospective adopter hands the child to the other, and if this takes place in the UK then s.11 of the Act applies. In the particular circumstances, however, the best interests of the child clearly required that the adoption proceed in spite of the illegal placement.
It is also a criminal offence under s.57 of the Act for any person to seek, offer, give or receive any payment or other reward in connection with the adoption of a child, except where the payment is made to cover certain specified expenses reasonably incurred. Where payment has been made in contravention of this section, the court will normally refuse to make an adoption order.
Eligibility for adoption
Only a child under 18, who is not (and has never been) married, is eligible for adoption, but the fact that the child may previously have been adopted is no bar.
Re R (Care proceedings: teenage mother) (2000) Times 19/7/00, Bracewell J
A 13-year-old girl already in foster care gave birth to a baby, and the local authority sought to take the baby into care too. The judge said that in such cases it is not appropriate to concentrate exclusively on the welfare of the child/mother – the welfare of the baby must also be a consideration. Each case will turn on its own facts: in the instant case, the baby as well as the child/mother would be cared for by the foster-parents.
Although an order can be made only with respect to a child under 18, a benefit which may accrue after that age can be taken into account.
Re N (Adoption)  1 FLR 58, Bush J
A black child N of Nigerian ancestry was placed with white foster-parents PP, and when N was 3£ PP applied for an adoption order. N’s father F (then living in the USA) opposed the application and sought custody. The judge said the concept of adoption was unknown in F’s culture and would cause him great shame; on the other hand, N was well settled with PP. He therefore refused adoption but continued the care order in favour of PP, with access rights for F. Obiter, any general doctrine that black children should never be placed with white foster-parents is ill-founded.
Re P  1 FLR 96, CA
A mixed-race child P had been with white foster-parents AA for some 18 months and was well settled there. The local authority, in pursuance of their ethnic policy, sought to remove P from AA and place him with black or mixed-race foster-parents. The judge made an order accordingly and AA appealed. The Court of Appeal affirmed the judge’s order: he was entitled to take into account the advantages of an ethnically similar family as well as the disadvantages of movement, and it could not be said that his decision was “plainly wrong”.
Some recent decisions have stressed the importance of the natural family.
Re L (Care proceedings: wardship)  1 FLR 29, Judge Willis
A girl L was taken into care after suffering unexplained injuries, and the local authority took the view that she should be placed for adoption. L’s grandparents (who were not implicated in any suspected abuse)were willing and able to care for L, and opposed the adoption. The judge said adoption should be considered only as a last resort when no one in the natural extended family is available and suitable to care for the child. Parentage is not always perfect, but parentage in the family is preferable to the unknown risks of adoption: a child has a right to be brought up by her own genetic family wherever possible, unless there are strong, cogent and positive reasons for denying that right. He therefore discharged the care order and ordered L to be handed over to her grandparents within six weeks.
Re K (Wardship: adoption)  1 FLR 57, CA
A woman W became pregnant unexpectedly at a time of great stress in her marriage, and handed over her baby K to a childless couple CC when it was six weeks old. Shortly afterwards she regretted her decision and sought the return of the child; the Court of Appeal unanimously decided that adoption would not be in the child’s best interests. CC were relatively old – they would both be well over 60 by the time K reached adulthood – and their ethnic, linguistic and religious background was different from W’s. Crucially, said Butler-Sloss LJ, W genuinely wanted her child back and had cared properly for her other children: it would not be in K’s interests to deprive her of the chance to grow up with her natural family.
Re O (Custody: adoption)  1 FLR 77, CA
O’s mother M, who was married to a man other than O’s natural father F, handed O over to an adoption society who placed him with foster-parents PP with a view to adoption. F applied for custody of O, and M appealed unsucessfully against the judge’s decision to make such an order. Butler-Sloss LJ said where a mother for any reason is unable to look after a child, and the child’s natural father wishes to take parental responsibility, he should be given first consideration as the long-term carer. Only where the father is considered unfit, so that the child’s moral or physical health would be endangered, should other options outside the family be considered.
In deciding whether to make an adoption order, the court relies heavily on a report from the adoption agency but can (and if parental consent is to be dispensed with, must) appoint a litigation friend (formerly a guardian ad litem, commonly an independent social worker or probation officer, but possibly the Official Solicitor in High Court proceedings) to represent the child’s interests. No adoption order may be made unless the court is satisfied that the adoption agency (or the local authority, in the case of a private adoption by relatives) has had sufficient opportunities to see the child with the prospective adopters in their “home environment”.
Re H, Re G (Adoption: disclosure) (2001) Times 5/1/01, Butler-Sloss P
In conjoined cases, the judge said that although there was no statutory requirement to consult a natural father without parental responsibility before making an adoption order, it would generally be appropriate to do so (in the child’s interests) where there had been a “family relationship”. H had been part of a family unit with the father, and she would formally request (but not order) the mother to identify the father so that he could express a view. G, on the other hand, had never had a meaningful relationship with the father, so there was no reason for him to be consulted.
The child’s consent is not required, though s.6 of the Act requires the court to give due regard to the child’s wishes, having regard to his age and understanding. A government working group recommended in 1992 that no child under 12 should be made the subject of an adoption order without his agreement (unless he was incapable of giving it), but this recommendation has not yet become law. Under s.16(4), the mother’s consent to adoption given before the child is six weeks old is ineffective, but with that exception consent can be given at any time before the hearing. Consent must be still present at the date of the hearing, however, and a parent or guardian has the right to withdraw his consent at any time, even at the hearing itself.
Re L (Adoption: parental agreement)  1 FLR 400, Anthony Lincoln J
Foster-parents AA applied to adopt a 12-year-old girl L who had been living with them for four years, but L’s mother M withheld her consent. There was evidence before the court that M suffered a mental disorder within the meaning of the Mental Health Act 1983, and was incapable of understanding the meaning and implications of adoption. The judge said incapacity is irrelevant where a parent refuses to consent – it applies only where the validity of such consent is questioned – but decided M was withholding her consent unreasonably and that such consent could therefore be dispensed with.
A parent may sometimes quite reasonably refuse to agree to a child’s adoption, but the court may decide that refusal is unreasonable and that his consent can be dispensed with. The court must not substitute its own view for that of the parent, however, and refusal will only be regarded as unreasonable if no reasonable parent would have refused to consent in the circumstances.
Re El-G (Wardship and adoption) (1982) 4 FLR 589, CA
Over a period of several years M (who had left her husband) was frequently in hospital. As a result her children (aged 7 and 5 at the beginning) were sometimes looked after by their grandmother, but were also taken into care and returned several times over, becoming emotionally disturbed as a result of this disruption. The local authority eventually placed the children for adoption, but M withheld her consent. Wood J found as fact that the children had been with their mother for only five weeks in the previous four years, and determined that M was withholding her consent unreasonably. The Court of Appeal dismissed M’s appeal: the judge had been right to consider the likelihood of yet another breakdown in M’s health, and a reasonable parent would have taken this into account.
Re H & W (Adoption: parental agreement) (1983) 4 FLR 614, CA
In conjoined appeals, H’s natural mother appealed against the judge’s decision that her consent to his adoption could be dispensed with and W’s foster-parents appealed against the judge’s refusal to dispense with the consent of his natural mother. Allowing the first appeal and dismissing the second, the Court of Appeal said increasing emphasis had been placed on the child’s welfare, but there had to be a limit to this. Natural parents may reasonably withhold consent even when those responsible for the child’s welfare reasonably believe his best interests require adoption. Parental defects in the past (abusive behaviour in H’s case, and alcoholism depression and crime in W’s) carry little weight in the decision of the hypothetical reasonable parent unless that history is likely to influence the future.
Re V (Adoption: consent)  1 All ER 752, CA
A young woman M had a child V; when her marriage broke up she went to live with a married couple AA, and when she remarried two years later she left V with AA for the time being. AA subsequently applied to adopt V, now aged 3, but M refused her consent. The judge decided V’s welfare was best served by adoption; M’s refusal was consequently unreasonable and her consent could be dispensed with. M appealed successfully to the Court of Appeal, who said the judge had apparently given no consideration to M’s reasons for refusal, such as her hope to reunite her family and the possible advantages to V of growing up with his younger sisters. The adoption order would therefore be quashed and an order substituted giving custody to AA with regular access to M.
Re E (Adoption)  1 FLR 126, CA
A young woman M who had herself suffered serious abuse as a child gave birth to a daughter E. E suffered non-accidental injuries and was taken into care, but M remained devoted to E and visited her frequently. When the local authority applied for E to be freed for adoption, M refused her consent but the judge said M’s refusal was unreasonable and decided her consent could be dispensed with. Allowing M’s appeal, the Court of Appeal said the first question for the judge is whether adoption would be for the child’s welfare. The second and quite separate question is whether a parent is unreasonably withholding consent, and in that decision the child’s welfare is not the first consideration. The judge had fallen into the trap of substituting his own view for that of the hypothetical reasonable parent: M’s refusal to consent might have been wrong or mistaken, but it was not unreasonable.
However, the child’s welfare is relevant to the extent that a reasonable parent would have this in mind in making his decision.
Re L (1962) 106 SJ 611, CA
An unmarried mother M handed over her baby to foster-parents AA; she was reluctant to agree to adoption and vacillated for some 18 months, but eventually (when her new husband refused to take in the child) consented to adoption subject to certain conditions. The judge said M’s unconditional consent could be dispensed with, and M appealed. Dismissing the appeal, Lord Denning MR said M had had to make a difficult choice between her child and her husband; but a reasonable mother would have put the child’s security first.
Re P (Adoption: parental agreement)  FLR 635, CA
A mother M put her daughter P into care and provisionally agreed to her being placed with AA for adoption. M subsequently retracted her consent, then gave it again, then (prior to a formal adoption hearing) retracted it again. The judge found M’s refusal of consent was unreasonable and decided her consent could be dispensed with. Affirming the adoption order, the Court of Appeal said M’s changes of mind over an agonizing decision were not conclusive evidence of unreasonableness, but they were a factor to be considered, and (on the particular facts) M’s refusal was unreasonable. But Griffiths LJ said obiter that the reasonable parent would give only little weight to the better material circumstances of AA: affluence and happiness are by no means synonymous.
Re B (Adoption: parental agreement)  2 FLR 383, CA
A boy B, now 11, had been living with foster-parents PP for seven years, and PP applied to adopt him. B’s natural mother M accepted that he should continue to live with PP, but refused to consent to adoption because she did not wish to lose her right to contact with him. The Court of Appeal said M’s consent could be dispensed with: a reasonable parent would take account of the advantages conferred by the security of adoption, B’s own strong desire to be adopted, and the likelihood that M’s contact would continue even after adoption, clearly outweighing any possible disadvantages.
Agreement can also be dispensed with if the parent has persistently failed to discharge his responsibilities towards the child, or has persistently or seriously neglected or mistreated the child. These provisions are little used in practice, and have proved legally quite straightforward in the rare instances in which it has been necessary to apply them.
Re P  3 All ER 789, Pennycuick J
A married woman W gave up her illegitimate son P soon after his birth, and the local authority placed him with foster parents with a view to his ultimate adoption. Thereafter, W did not visit P at all regularly in his foster home (even though he was only a fe miles away), nor support him financially, nor enquire about his health, nor have him live with her when that became possible. The judge said W’s consent to P’s adoption could be dispensed with: she was in serious breach of both her natural moral duty to show affection and care for and interest in her son, and her legal duty to maintain him financially.
Re D  3 All ER 1001, DC
A married couple H and W had two daughters DD; when they were about five, H left home to live with another woman. H did not maintain DD financially; he sent them birthday and Christmas presents and saw them about ten times during the first year of separation, but did not see them at all in the second year. Following divorce, W remarried and (with her new partner) subsequently sought to adopt DD. On appeal from the judge, the Divisional Court said H’s consent could not be dispensed with: his conduct fell far short of “persistent failure to discharge his obligations”. “Persistent” meant more or less “permanent”, and H had at least tried to trace DD after they moved away.
Re F(T)  1 WLR 192, CA
F’s father H was convicted of the manslaughter of his wife W (F’s mother) by reason of diminished responsibility, and was committed to a secure hospital. W’s parents, who were looking after F, handed her over to AA with a view to adoption. H refused to consent to the adoption and supported a counter-application by H’s brother and sister-in-law BB. The judge made a care order in favour of BB as F’s nearest blood relatives, and AA appealed. Allowing their appeal and ordering that F be returned to AA, the Court of Appeal said F needed to be protected from her father and his side of the family, and should not be left with them.
Freeing For Adoption
Section 18 of the 1976 Act allows the court on the application of an adoption agency (but no-one else) to make a “freeing order” declaring that the child is free for adoption and vesting parental responsibility in the agency. Such an order normally requires the consent of each parent or guardian of the child, though where a child is presently in the care of the local authority, the authority can apply for parental consent to be dispensed with on the same grounds as above. The mother’s consent is ineffective if given within six weeks of the child’s birth; and the court must satisfy itself (where appropriate) that the unmarried father (whose consent is not required unless he has parental responsibility) does not intend to apply for a parental responsibility or residence order, or that any such application would probably be refused. The court must also ensure that (so far as practicable) each parent or guardian has been given the opportunity of making a declaration that (s)he prefers not to be involved in future questions relating to the child’s adoption and is content to leave them to be determined by the court. In the absence of such a declaration, the adoption agency has a duty under s.19 to report progress to the parent after twelve months, and the parent has a right under s.20 to seek the revocation of the freeing order after that time if there has been no significant progress.
Under s.27(1) of the 1976 Act, a parent or guardian who has agreed to the child’s being adopted (whether or not a freeing order has been obtained) cannot lawfully remove the child from the home of the person with whom he is now living, except with the express leave of the court. Similarly, while an application for a freeing order is pending and the child is in the care of the adoption agency making the application, s.27(2) provides that no parent or guardian may remove the child from his current home without leave.
Re G (Adoption: freeing order)  2 FLR 202, HL
A boy B was freed for adoption and placed as a boarder at a special school for disturbed children. After a year no adoption was in sight and B’s mother M applied to revoke the freeing order, accepting that B would remain at the school and offering to consent to a care order if the freeing order were revoked. The judge refused revocation and the Court of Appeal said the court would have had no jurisdiction to attach conditions of the sort suggested, but the House of Lords disagreed. The Adoption Act 1976 operates alongside the Children Act 1989, said Lord Browne-Wilkinson, and the court can make a revocation order conditional on other orders.
Re J (Adoption: freeing order) (2000) Times 26/5/00, Black J
A child J, now 8, had been placed in foster care and a freeing order made with a view to adoption. Circumstances had now changed, and it was intended that J should remain in long-term foster care but not be adopted. The local authority therefore applied for the freeing order to be revoked within twelve months of its having been made. The judge said this was within the inherent jurisdiction of the court: the Act made provision for an order to be revoked on the application of the natural parent, but did not exclude the exercise of the court’s inherent jurisdiction.
Adoption proceedings are family proceedings within the meaning of the Children Act 1989, and the court may therefore make a s.8 order (discussed further in the third part of the chapter) in preference to a freeing order, where this is more appropriate.
Re U (Application to free for adoption)  2 FLR 992, CA
A three-year-old child U was taken into care after suffering non-accidental injuries, and the local authority sought an order freeing U for adoption. The judge refused such an order, and instead made a residence order in favour of U’s grandparents. The local authority appealed on the grounds that s.18 of the 1976 Act was mandatory, requiring the court to make a freeing order (subject to the usual consent requirements) once an adoption agency had determined adoption to be in the child’s best interests. The appeal failed: Balcombe LJ said s.18 must be read subject to s.6: the court itself had still to consider the child’s welfare and was not obliged to make a freeing order where it felt such an order would not be in the child’s best interests.
The freeing procedure has not been used extensively, and various suggestions have been made for its improvement. Where it has been used, difficulties have sometimes arisen over the court’s power to dispense with parental consent where this is unreasonably withheld: reasonableness is hard to assess in circumstances where there has been no specific placement.
Re E (Adoption: parental agreement)  2 FLR 397, CA
EE were the children of a young couple of limited intelligence, and the local authority (which had taken them into care) sought to place them for adoption. EE’s mother M applied for an access order, and (when the local authority applied for a freeing order) withheld her consent. The judge found as fact that although adoption would be in EE’s best interests, M’s refusal to consent was within the broad band of decisions that could be regarded as reasonable. The Court of Appeal agreed, and said it was relevant that the local authority’s pre-emptive application for a freeing order had deprived M of the chance to demonstrate the possible advantages of continued access.
Re F (Adoption: freeing order) (2000) Times 6/7/00, CA
Four children were taken into care, their mother being incapable of caring properly for them and their father having been accused of sexual abuse against an older sister. The local authority proposed that three of them (aged 10, 8 and 5) should remain in long-term care, preferably together, but that the two-year-old F should be freed for adoption. The father withheld his consent, and the judge said that although in his view adoption would be in F’s best interests, a reasonable parent might take a different view. The Court of Appeal differed, and said the father’s consent could be dispensed with: the “reasonable parent” in a case such as this would be one who regarded the interests of the child as paramount.
The Range of Orders
The court has a range of orders available to it in adoption cases. Most obviously, it may make an adoption order; this may contain such terms and conditions as the court thinks fit, subject to the limitation that it cannot give adoptive parents any greater rights than natural parents would have.
Re W (Adoption: custodianship)  Fam Law 64, CA
An illegitimate child W lived with her mother M and her grandparents GG, the latter having care and control. GG applied to adopt W and M consented, but the judge refused to make an order, saying it would confuse W if her grandparents were to be her legal parents as well, and continued the custody order. On appeal, Glidewell LJ said the judge had not considered the advantages of adoption; in the instant case these outweighed the disadvantages and the order should be made.
A fourth possibility is that the court may decide to make no order. In that event a child placed for adoption by a local authority or other adoption agency must be returned to them within seven days; if the proposed adoption was a private one (e.g. by close relatives) the status quo continues unless the court makes some other order. Under s.28 of the 1976 Act, however, once the child has lived with the prospective adopter(s) for at least five years, no one may remove him while the application is pending, except by statutory authority or with the leave of the court.
The Child’s Right to Know
An adopted child is legally the child of his adoptive parents and not of his birth parents, but it is almost universally agreed that such a child should be told he is adopted, as soon as he is of an appropriate age and understanding. It is less clear what (if anything) the child should be told about his birth parents: in many cases the adoptive parents may know little or nothing about them. A child under 18 has no legal right to any information about his birth parents, although if he is contemplating marriage he is entitled to be told by the Registrar-General whether there is any evidence that he and his proposed spouse may be within the prohibited degrees of relationship. Once he becomes an adult, however, s.51 of the Adoption Act 1976 entitles him to obtain a copy of his original birth certificate, showing the name of his natural mother and (sometimes) father. On applying for this certificate he will first be offered counselling services, but (unless he was adopted before 1976) he is not obliged to take advantage of these. He may also apply to the court for the name of the agency which arranged the placement, and that of the local authority which supervised it. However, the statutory right to this information may be denied in some circumstances.
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