Placement for Adoption and Placement Orders
| Author | Nasreen Pearce/Richard Budworth |
| Pages | 19-57 |
Chapter 4
Placement for Adoption and Placement Orders
INTRODUCTION
4.1 ACA 2002, ss 18–41 set out the provisions which apply to the placement of a child for adoption by an adoption agency. The objective is to ensure that issues leading up to an adoption order are dealt with at an early stage, providing greater certainty, a smoother route to placement with the prospective adopter(s) and a non-adversarial adoption hearing. The parent(s) must be involved before it is decided to place the child for adoption by either giving their consent or being given the opportunity of challenging the proposals during the court process for the application for a placement order, i.e. an order made by a court authorising a local authority to place a child for adoption with any prospective adopter(s) chosen by the authority (ACA 2002, s 21(1)).
4.2 The statutory provisions are supplemented by those set out in the Adoption Agencies Regulations 2005 (SI 2005/389) (AAR 2005). The regulations set out the procedures that must be followed by the local authority or other adoption agency when deciding whether a child should be placed for adoption.
BY WHOM AND WHEN MAY A CHILD BE PLACED FOR ADOPTION?
4.3 ACA 2002, s 18(1) provides that an adoption agency (see below) may place a child for adoption with prospective adopter(s), or where it has placed a child with any person (whether under the ACA 2002 or not), leave the child with them as prospective adopter(s), except where the child is less than six weeks old (ACA 2002, s 18(1); see below). It may, however, only do so provided it is satisfied that the child ought to be placed for adoption (ACA 2002, s 18(2)). Any reference to placing a child for adoption by an agency and to a child who is placed for adoption by an agency is to be interpreted accordingly (ACA 2002, s 18(5)).
20 Adoption Law: A Practical Guide
An adoption agency is defined as a local authority or registered adoption society (ACA 2002, s 1(2)).
4.4 A child who is placed or authorised to be placed for adoption by a local authority is a ‘looked after’ child (ACA 2002, s 18(3)), and therefore the local authority will be responsible for the child as required under the ChA 1989 until an adoption order is made.
4.5 An adoption agency may place the child for adoption with prospective adopter(s) either with the consent of each parent or guardian of the child or pursuant to a placement order. The local authority, however, is not prevented from placing a child with foster carer(s) who are also registered as local authority foster carer(s) and prospective adopter(s). Furthermore, pursuant to the amendments made to the ChA 1989 by the Children and Families Act 2014, where a local authority is considering adoption but has not yet obtained a placement order, it is now required to consider placing the child with local authority foster carer(s) who are also prospective adopter(s) (ChA 1989, s 22C). The local authority is also permitted to place the child with approved adopter(s) who are not yet approved as local authority foster carer(s) (see Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), reg 25A, and Care Planning, Placement and Case Review (Wales) Regulations 2015 (SI 2015/1818) (W 261), reg 28).
4.6 In such cases the local authority is authorised to grant temporary approval if it is satisfied that the placement is the most appropriate placement for, and it is in the best interests of the child but provided that it has:
(a) assessed the suitability of that person to care for the child as a foster carer; and
(b) considered that in all the circumstances and taking into account the services to be provided by the local authority, the proposed arrangements will safeguard and promote the child’s welfare and meet the child’s needs as set out in the care plan (Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), reg 25).
4.7 Where a child is placed on a temporary basis with prospective adopter(s) as foster carer(s), the local authority must inform the birth parents, including a father without parental responsibility, of the placement and the legal implications of the placement (AAR 2005, reg 14). AAR 2005, reg 14(3) provides that where the local authority is aware of the identity of a father without parental responsibility and it considers that it is appropriate to do so, it should contact the father and take steps to explain the legal process for placement and adoption of the child and its legal implications to him. The adoption agency is also required
to ascertain his wishes and feelings about the child being placed for adoption and being adopted and his future contact with the child. It should also inform him of his right to apply for parental responsibility and for a care arrangement order under the ChA 1989. If the adoption agency has any doubts about the appropriateness of contacting the father without parental responsibility, an application should be made to the court for directions (see FPR 2010, Pt 14).
Placing children with parental consent
4.8 An adoption agency is authorised to place a child for adoption where each parent or guardian who has parental responsibility for the child has consented to the child being placed for adoption with the prospective adopter(s) identified in the consent, or with any prospective adopter(s) who may be chosen by the agency and has not withdrawn the consent (ACA 2002, s 19(1)). The child will continue to be so placed notwithstanding that the parent’s/parents’ consent is subsequently withdrawn (ACA 2002, ss 19(4) and 52(5)). Where it is not clear whether parental consent to the placement has been given, the local authority may apply to the court for clarification (A Local Authority v GC [2008] EWHC 2555 (Fam), [2009] 1 FLR 299).
4.9 However, an adoption agency may not place a child for adoption unless it is satisfied that adoption is in the best interests of the child and account has been taken of any recommendation made by the adoption panel, as required by AAR 2005, reg 33. Additionally, once the decision is taken to place the child for adoption, the adoption agency must notify the decision, in writing, to each of the following persons:
(a) the parent(s) or guardian of the child;
(b) the father of the child (where this is appropriate) where AAR 2005, reg 14(3) applies (see para 4.7).
4.10 Where the child is of sufficient age and understanding, consideration must also be given to explain the decision to the child.
4.11 It should be noted, however, that the consensual route to placement does not apply where care proceedings are pending or where a care order has been made but the appropriate local authority has not been authorised to place the child for adoption. In such cases the appropriate local authority must apply for a placement order if it is satisfied that the child ought to be placed for adoption (ACA 2002, s 19(3)).
22 Adoption Law: A Practical Guide
CHILD UNDER SIX WEEKS OLD
4.12 An adoption agency may place a child who is less than six weeks old for adoption with the voluntary agreement of the parent(s) given in writing (AAR 2005, reg 35(4)). Such a placement, however, is not an authorised placement within the provisions of the ACA 2002. It follows that the parents continue to have parental responsibility for the child.
4.13 Before placement of such a child, however, the process set out under AAR 2005, Pt 5 must be complied with. Once the child reaches the age of six weeks, the adoption agency must either obtain the formal consent of the parent(s) to continue the placement or the local authority must apply for a placement order (A Local Authority v GC [2008] EWHC 2555 (Fam)). Although a child under six weeks old may be placed for adoption, consent to the making of an adoption order, given by the mother, is ineffective if given less than six weeks after the child’s birth (ACA 2002, s 52(3)).
CONSENT
Meaning of consent
4.14 ‘Consent’ means ‘consent given unconditionally and with full understanding of what is involved, but a person may consent to adoption without knowing the identity of the person in whose favour the order will be made’ (ACA 2002, s 52(5)). As set out in ACA 2002, s 19(2), consent may be:
(a) specific to identified adopters or to the adoption agency in Form A101; or
(b) general, i.e. to adoption by any prospective adopter(s) who may be chosen by the adoption agency in Form A100; or
(c) combined, i.e. consent to placement with specified prospective adopter(s), or with any other prospective adopter(s) who may be chosen by the adoption agency if the child is removed from, or returned by, the identified prospective adopter(s) in Form A102.
Advance consent for the child to be adopted
4.15 ACA 2002, s 20 provides that a parent or guardian who consents to the child being placed for adoption may give advance consent to a child being adopted in the future:
(a) at the same time as consent for placement for adoption;
(b) at any subsequent time;
in relation to:
(i) prospective adopter(s) who are identified;
(ii) to adoption by any prospective adopter(s) who may be chosen by the adoption agency or the local authority (ACA 2002, s 20(2)).
4.16 Advance consent to adoption should be given using Form A103. Where one parent has given consent for placement for adoption and at a later date the other parent acquires parental responsibility, the other parent is treated as having given consent at the same time as that given by the first parent (ACA 2002, s 52(9) and (10)). Advance consent may be withdrawn provided it is withdrawn before an application for an adoption order has been made (ACA 2002, s 20(4); and see para 4.21). A parent who gives advance consent to the making of an adoption order may, at the same time or at any subsequent time, give notice to the adoption agency stating that he does not want to be informed of any application for an adoption order. The notice will have effect from the time it is received by the adoption...
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