Consent to Adoption and Applying for a Placement Order

An adoption agency can only place a child for adoption if it is authorised to do so. The agency is authorised to place the child if:

• Each parent with Parental Responsibility or guardian of the child has consented to the child being placed for adoption, and has not subsequently withdrawn their consent;
• The child is under 6 weeks old and the agency has the written agreement of the parents;
• The local authority has obtained a Placement Order.

When the agency has been authorised to place a child for adoption, whether by consent or by obtaining a Placement Order, the child's case must be reviewed in accordance with the Adoption and Children Act 2002, rather than the Children Act 1989. The first review under the ACA2002 must be carried out within 3 months of the authorisation being obtained, i.e. the date the parent signed consent, or the placement order was made.

Consent must be given on "the consent to placement form" (a prescribed form) and a CAFCASS Officer must witness the parent signing the form. The CAFCASS Officer must ensure that the consent is properly given and that the parent understands the implications of signing the form;

The parents or guardian may consent to the child being placed with specific prospective adopters, or with prospective adopters chosen later by the adoption agency. Specific adopters do not have to be identified by name on the consent form. Instead an agency reference number could be used to preserve anonymity;

Under section 20 of the ACA 2002, consent may be given in advance of any application being made, to the making of an adoption order. This can be given at the same time as consent is given to the placement of the child, or at any time subsequently. CAFCASS have similar responsibilities to those outlined above, and the consent can be given, as above, in relation to specific or unknown prospective adopters. When advance consent to adoption has been given, the parent or guardian has the option of electing not to be notified of the final adoption order hearing;

Consent to placement for adoption, or advance consent to the making of an adoption order and statement declining to be notified of the final hearing, can be withdrawn at any time up until an application for an adoption order has been lodged by the prospective adopters. The agency would no longer be permitted to place the child for adoption, and would have to arrange for the return of any child placed with prospective adopters, unless the local authority already has a Care Order and/or has applied for a Placement Order;

Withdrawal of consent to placement or advance consent to the making of an adoption order is ineffective once an application for an adoption order has been lodged. In these circumstances a parent or guardian can only oppose the making of an order with the leave of the court. The court can only grant leave if it is satisfied that there has been a change in circumstances of the parent or guardian since consent was given;

It is not possible for a parent or guardian to consent formally to a baby under the age of 6 weeks being placed for adoption, or to give advance consent to the granting of an adoption order. However an agency is permitted to place a baby under six weeks with prospective adoptive parents if the parents or guardian have voluntarily relinquished the child and have given their written agreement to the placement. The placement may be with specific prospective adopters identified in the agreement, or the agreement may allow the child to be placed with any prospective adopter chosen by the agency. The parent or guardian can withdraw their agreement at any time. The agency must seek the consent of the parent or guardian to place the baby for adoption when the baby becomes six weeks old.

Placement Orders authorise a local authority to place a child for adoption with any prospective adopter(s) chosen by the authority. A local authority must apply for a Placement Order before placing a child for adoption if consent to place the child is not forthcoming from the child's parents or guardian. A Placement Order must be applied for if Care Proceedings are in progress and the local authority decides that a child should be placed for adoption. However if a child is already the subject of a Care Order prior to the a decision being made that s/he should be placed for adoption, the child can either be placed with the consent of the parents or guardian, or the local authority can apply for a Placement Order.

When a Placement Order has been made, a parent or guardian is not able to oppose any adoption application subsequently made by prospective adopters without the leave of the court. The court can only grant leave if it is satisfied that there has been a change in circumstances of the parent or guardian since the Placement Order was made.

A Placement Order can only be made if one of the following apply:

• The child is already subject to a Care Order;
• The threshold criteria for making a Care Order are met;
• The child has no parent or guardian;

In considering any application for a Placement Order the child's welfare will be the paramount consideration, and the court must apply the welfare checklist set out in section 1 of the ACA2002. The order can only be made if:

• The child's parent or guardian consents;
• The child has no parent or guardian;
• The consent of the parent or guardian should be dispensed with; and
• The court considers making a Placement Order is better for the child than not doing so;

A Placement Order continues in force until:

• It is revoked;
• An adoption order is made;
• The child marries;
• The child attains the age of 18 years;

A Placement Order cancels any Child Arrangements Order or Supervision Order in existence at the time the order was made. It supersedes any existing Care Order, but does not cancel it. A Placement Order can be made at the same time as a Care Order, but the Care Order will not become effective unless the Placement Order is revoked. Applications cannot be made for other orders such as Child Arrangements Orders, supervision, child assessment, prohibited steps, or specific issues orders when a Placement Order is in place, although a court may grant leave to apply for a Child Arrangements Order or Special Guardianship Order at the same time as granting leave to oppose an Adoption Order. A Placement Order can be varied (transferred) to another local authority on the joint application of both authorities.

Placement Orders can be revoked on the application of the local authority or the child at any time. Other people may apply for revocation only with the court's leave, and only if the child has not been placed with prospective adopters. The court may only grant leave if there has been a change in circumstances since the Placement Order was made. A Placement Order may be revoked by a court at the same time as deciding not to make an Adoption Order. Whilst an application for revocation is pending a child who has not already been placed, must not be placed for adoption without the leave of the court.

When consent to place a child for adoption has been given, or a Placement Order is in place, the agency is authorised to place the child for adoption. The agency shares Parental Responsibility for the child with the parent prior to the child being placed with prospective adopters, and with the prospective adopters and parents after the child has been placed for adoption. However the agency may determine the extent to which both the parents and prospective adopter's exercise of Parental Responsibility should be restricted.

The degree to which the Parental Responsibility of the child's parents, guardian or prospective adopter(s) should be restricted must be considered by the adoption panel when considering a proposed placement of a child with prospective adopters, and they may provide advice to the agency on this matter when making their recommendation.

Regulation 45 of the Adoption Agency Regulations 2005 removes the local authority's duties to ascertain the wishes and feelings of the parent and take them into account when coming to any decision about the child. The duty to keep the child's parents informed of the child's address is also removed, (as is the parent(s)'s duty to keep the local authority informed of their address.) The agency will therefore need to decide to what extent it will involve the parent in any decisions which are made about the child, taking account of any advice given by the adoption panel. The parent(s) / guardian should be notified in writing of the decision, which should be reviewed as and when this is appropriate.

Regulation 45 creates a new duty to ascertain the wishes and feelings of any prospective adopter the child may be placed with, and to take them into account when coming to any decision about the child. The adoption Placement Plan must include information about whether, and how the prospective adopter(s)' Parental Responsibility will be restricted. This should be decided, in consultation with the prospective adopters and the child (if of sufficient age and understanding, taking account of any advice given by the adoption panel).

If an adoption agency is authorised to place a child for adoption, any order in relation contact made under the Children Act 1989 ceases to have any effect, and the local authority's duty under the Act to promote contact ceases to apply. However Section 26 of ACA2002 is applicable and allows a court to make an order for contact on the application of:

• The child or agency;
• A parent, guardian or relative;
• Any person who immediately prior to the local authority obtaining authorisation to place the child for adoption had:
  • A Contact Order under the 1989 Children Act;
  • A Child Arrangements Order;
  • The care of the child by an order made by the high court;
  • Any person who has the court's leave.

In making a contact order under s26 ACA2002 the presumption of continuing contact between the child and his family - which is applicable in relation to orders made under the Children Act 1989 - does not apply.

The court must consider the proposals for contact arrangements made by the local authority, and the views of all parties when making a Placement Order. The court may make a Contact Order under Section 26 on its own initiative when making a Placement Order if no application for an order has been made.

A Contact Order under s26 remains in force whilst the local authority is authorised to place the child for adoption or while the child is placed for adoption. It may be varied or revoked on the application of the child, the local authority or anyone named in the order.

A local authority may suspend the contact arrangements specified in the order for up to seven days in an emergency if it is satisfied that this is necessary to safeguard or promote the child's welfare. The local authority must notify the person concerned, the child (if of sufficient age and understanding) and prospective adopters in writing of the decision, the date of the decision, duration and reasons for it.

There may be a departure from the terms of the contact order by agreement with the person named in the order, subject to the child (if of sufficient age and understanding) agreeing and prior consultation with any prospective adopters the child may be placed with. The local authority must notify the person concerned, the child (if of sufficient age and understanding) and prospective adopters in writing of the agreed changes.

When making an Adoption Order, or at any time afterwards, the court may (upon application or on its own initiative) make an order for contact with, or an order prohibiting contact with, the person(s) named in the order. Such orders have effect until the child’s 18th birthday, unless revoked sooner.

An order for contact requires the adopter to allow the child to visit, stay with or otherwise have contact with, the person named in the order.

The following people may be named in an order:

• Any person who (but for the child’s adoption) would be related to the child by blood (including half-blood), marriage or civil partnership;
• Any former guardian of the child;
• Any person who had Parental Responsibility for the child immediately before the making of the Adoption Order;
• Any person with whom the child has lived for a period of at least one year (this period need not be continuous, but must be within the last 5 years);
• Any person who had a previous order for contact under Children Act 1989, which order ceased to have effect upon the agency being authorised to place the child for adoption;
• Any person who had a Child Arrangements Order (previously Residence Order) immediately before the agency was authorised to place the child for adoption;
• Any person who had care of the child under the inherent jurisdiction of the High Court immediately before the agency was authorised to place the child for adoption.

The adopters or the child may apply without the leave of the court, whilst any other person, including the child’s birth parents and other birth relatives, e.g. grandparents or siblings, would need the court’s leave to apply.

In deciding whether to grant leave to apply, the court must consider:

• Any risk there might be of the proposed application disrupting the child’s life to such an extent that s/he would be harmed by it (within the meaning of the 1989 Act);
• The applicant’s connection with the child; and
• Any representations made to the court by the child and/or the adopter/prospective adopter.

Orders may contain directions about how they are to take effect, or may be made subject to such conditions as the court thinks appropriate.

The court will issue a timetable and directions with the aim of resolving the application without delay.

Applications prohibiting contact are unlikely to be necessary in the majority of cases and are only likely to be appropriate to stop unwanted, unsolicited and potentially harmful contact with the child, or to prevent such contact happening.

The circumstances in which a birth parent, relative or other person are most likely to seek the court’s leave to apply for an order for contact after adoption are where an agreement for some form of continuing contact had been made, but was not adhered to.

Application can be made to the court to vary or revoke such orders, by the child, adopter or person named in the order.

Following the agency's decision that the child should be placed for adoption, authorisation to place the child must be obtained to place the child by the child's social worker either

• Obtaining consent from the child's parent(s) or guardian; or
• Initiating an application for a placement order.

The action to be taken will depend on the circumstances of the case. In situations where the parent(s) have indicated that they will give consent, it may still be appropriate to apply for a Placement Order if grounds exist for an order and it is likely that a parent may withdraw consent at a later stage.