Adoption

What an Adoption Order Does

An adoption order is made by the family court under section 46 of the Adoption and Children Act 2002. It gives parental responsibility for the child to the adopters and extinguishes the parental responsibility of everyone else, any order under the Children Act 1989 and any future duty to pay maintenance for the child. From the date of the order the child is treated in law as if born to the adopters, and the order is permanent. Our parental responsibility page explains what it covers.

Before making the order the court must consider whether there should be arrangements for anyone to have contact with the child. The child must be under 18 when the application is made, and no order can be made once the person has turned 19 or for anyone who is or has been married or in a civil partnership.

This page covers adopting a child already in England and Wales where you are not the child's step-parent. Step-parent adoption and international adoption have their own pages, and a child born through surrogacy usually needs a parental order instead, unless neither intended parent is genetically related to the child.

Who Can Apply to Adopt

Under section 49 a couple or one person may apply. A couple means a married couple, civil partners, or two people of either sex living as partners in an enduring family relationship, but not two people where one is the other's parent, grandparent, sister, brother, aunt or uncle. Both must be 21 or over, unless one of them is the child's mother or father, who may be 18 if the other is 21. GOV.UK confirms there is no upper age limit.

One person may apply at 21 or over if not married or in a civil partnership, or as the partner of the child's parent. A married applicant or civil partner may apply alone only where their spouse or civil partner cannot be found, is permanently separated from them, or is incapable of applying through ill-health, and a parent applying alone must show that the other parent is dead or cannot be found, that there is no other parent, or some other reason, which the court records.

At least one applicant must be domiciled in a part of the British Islands, or the applicants must have been habitually resident there for at least a year ending with the date of the application. Where a child or an applicant needs permission to stay, our family immigration solicitors advise alongside the family application.

Living Together Before You Apply

Section 42 sets the period the child must have had their home with you before you can apply: ten weeks where an adoption agency placed the child with you, the placement was under a High Court order or you are the child's parent; six months where you are the partner of a parent; one year where you are the child's local authority foster parents; and otherwise, which covers relatives and other carers, three years, continuous or not, within the last five. In the last two situations the court can give leave to apply earlier. The court must also be satisfied that the agency, or the local authority for your area, has had sufficient opportunities to see the child with you at home.

Where no agency placed the child, section 44 requires you to give your local authority notice of intention to adopt, not more than two years and not less than three months before the application, and the court cannot make the order without it. The authority then investigates and reports to the court on your suitability; where an agency placed the child, the agency reports instead. A carer who has not yet met the one year or three year condition cannot give the notice until the court has given leave to apply.

Consent of the Birth Parents

Under section 47, where the child has a parent or guardian the order cannot be made unless each of them consents, gave advance consent under section 20 and does not oppose, or has their consent dispensed with; or the child was placed by an agency, with each parent's consent or under a placement order, and no parent or guardian opposes. A parent who consented, or whose child was placed under a placement order, needs the court's leave to oppose, and leave cannot be given unless circumstances have changed since then.

Parent here means a parent with parental responsibility, so a father is asked to consent only if he has it; GOV.UK notes that a father not married to the mother and not on the birth certificate can apply for it. Consent must be given unconditionally and with full understanding of what is involved. A mother's consent given less than six weeks after the birth is ineffective, and once the application has been made a withdrawal of consent to placement, or of advance consent, has no effect.

Section 52 lets the court dispense with consent only where the parent or guardian cannot be found or lacks capacity within the meaning of the Mental Capacity Act 2005, or where the child's welfare requires it. The child's welfare throughout their life is paramount in every adoption decision, and the court must make no order unless doing so is better for the child than not. Where a child is subject to a care order or a placement order the local authority's application is dealt with in care proceedings. RakLAW does not offer legal aid and is privately funded, and legal aid comes from a firm that holds a legal aid contract. It is not means tested for a parent in care proceedings, nor for a parent, or a person with parental responsibility, who opposes a placement order or an adoption order.

How the Adoption Process Works

The route depends on whether an agency places the child with you or the child already lives with you. In outline:

1. Approval. You approach a local council or voluntary adoption agency, attend preparation classes and social worker assessment visits, and provide a police check, three referees and a medical. The report goes to an independent adoption panel and the agency decides; a refusal can be challenged through the agency or the Independent Review Mechanism.
2. Placement or notice. An agency may place a child only with each parent's consent under section 19 or under a placement order, unless the child is under six weeks old. Where the child already lives with you, you give the local authority notice of intention to adopt instead.
3. The living together period under section 42, during which the agency or local authority sees you with the child at home.
4. The application. You apply to the family court on form A58, or online for a post-placement adoption, where a local authority placed the child with you under a placement order. The court fee and the ways to pay are on the GOV.UK adoption court order page, and people with little savings and a low income or certain benefits may qualify for help with court fees.
5. Issue and directions. Under Part 14 of the Family Procedure Rules the court considers whether it is proper to hear the application, fixes a first directions hearing within four weeks of issue unless it directs otherwise, appoints a reporting officer or children's guardian where needed, and serves each parent with parental responsibility unless they have asked not to be told. The agency or local authority files its confidential report and the reporting officer witnesses any consent.
6. The final hearing. The rules expect the applicant and the child to attend unless the court directs otherwise. If the conditions in the Act are met, the court makes the order and the General Register Office issues an adoption certificate in place of the birth certificate.

When Legal Advice Is Especially Important

Advice matters most where:

• a birth parent opposes, cannot be found or may lack capacity to consent
• the child's father is not on the birth certificate and it is unclear whether his consent is needed
• you are a relative or foster carer who has not yet met the one year or three year condition
• a parent whose child was placed under a placement order wants to argue that circumstances have changed, or a parent opposes an adoption order, where legal aid is not means tested but is not something we offer
• you are a parent applying alone, or a married applicant or civil partner who is separated
• the child, a parent or an applicant lives abroad or needs permission to stay in the UK
• a special guardianship order or a child arrangements order might meet the child's needs without ending the birth parents' status
• someone proposes a private arrangement outside an adoption agency, where section 92 lifts only part of the restriction for the child's parents, relatives, guardians or a parent's partner

How RakLAW Solicitors Can Help

Our family solicitors at 42 Shad Thames in Southwark, a short walk from Tower Bridge, advise on adoption as part of our adoption, surrogacy and fertility work. We start with a free 15-minute consultation, check the conditions in the Act against your facts, and say honestly whether an adoption order or another order would serve the child better.

We then prepare any notice to the local authority, the application and the statement in support, and represent you at the directions and final hearings. For birth parents we explain what consent involves and how leave to oppose is sought. RakLAW does not offer legal aid; our charges are on our fees for family law page.