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Who May Adopt?

Document Cited authorities 21 Cited in Related
AuthorNasreen Pearce/Richard Budworth
Pages5-12

Chapter 2


Who May Adopt?

PEOPLE WHO MAY ADOPT

2.1 An application to adopt a child may be made by: (a) a couple; or (b) a sole person, provided the required statutory conditions in each case are satisfied. These conditions relate to the age, domicile and residence of the applicants/applicant.

A COUPLE

Definition of ‘a couple’

2.2 ACA 2002, s 144(4) defines ‘a couple’ to mean:

(a) a married couple – this includes single sex married couples; or
(b) two people who are civil partners of each other; or
(c) two people (whether of different sex or the same sex) living as partners in an enduring family relationship.

2.3 The reference to couple does not include two people one of whom is the other’s parent, grandparent, sister, brother, aunt or uncle (ACA 2002, s 144(5)). These relationships may be of full or half-blood, or in the case of an adopted person, such of those relationships as would exist but for the adoption, and include the relationship of a child with his adoptive or former adoptive parents, but do not include any other adoptive relationships (ACA 2002, s 144(6)).

Marriage or civil partnership

2.4 The Adoption Application Form A58 requires documentary evidence of the marriage or civil partnership to be filed with the application. The ACA 2002 is silent on whether a couple whose marriage is polygamous or potentially polygamous would qualify. Case law suggests that applicants whose marriage is

6 Adoption Law: A Practical Guide

polygamous or potentially polygamous are likely to be regarded as a ‘married couple’ (Din (Imam) v National Assistance Board [1967] 2 QB 213; Alhaji Mohamed v Knott [1969] 1 QB 1). The court is empowered to make a declaration concerning the validity of marriage which was entered into under a law which permits polygamy (Matrimonial Causes Act 1973, s 47).

2.5 The court may make an adoption order in favour of a married couple, notwithstanding the fact that the couple separated after the application was made, if the court finds that it is in the best interests of the child to do so (Re CC (Adoption Application: Separated Applicants) [2013] EWHC 4815 (Fam)) or where the couple are not in a sexual relationship (Re X (A Child: Foreign Surrogacy) [2018] EWFC 15, a case for a parental order under ACA 2002, s 54(2)(a), but the same principle will be applied in adoption cases).

Enduring family relationships

2.6 The ACA 2002 does not define ‘enduring family relationships’. Nor does it set a minimum period for which the relationship should have continued. Human Fertilisation and Embryology Act 2008 (HFEA 2008), s 54(2)(c) also requires partners to be in an ‘enduring family relationship’ with no statutory definition. Therefore, decisions made in applications for a parental order are, by analogy, relevant in applications for an adoption order when the issue relates to the nature and extent of the applicants’ relationship. Since the objective of the legislation is the child’s welfare throughout his life, it will be for the court to determine on the facts whether the applicants’ relationship is sufficiently stable to provide for the child in the long term. In Re T & M (Adoption) [2010] EWHC 964 (Fam), Hedley J stated (at [16]) that:

Clearly the crucial words are ‘living as partners in an enduring family relationship.’ These words are no doubt chosen so as not to require the residence of both in the same property. That is not surprising as historically many a parent has had to work abroad whilst the family remained at home without in any way imperilling an enduring family relationship. Nor is that unusual today with people having to move jobs often at short notice. What is required is: first an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention. That is clearly a question of fact and degree in each case.

2.7 The two women in the case were found to be living in a committed and exclusive relationship and shared the care of the child in question, and therefore were entitled to make a joint application for an adoption order (at [16]–[17]). In P and B v Z [2016] EWHC 1594 (Fam)...

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