Legal Update: Fall in adoption placement orders

Coram Children's Legal Centre
Thursday, May 4, 2017

A decline in the number of adoption placement orders has been linked to a fall in the number of potential adopters being recruited.

A recent briefing published by the Adoption Leadership Board (ALB) raised concerns that the slump in adoption placement orders in recent years has led to a "substantial contraction" of adopter recruitment by councils and voluntary adoption agencies. In raising its concerns, the board highlighted that this fall is typically seen as a response to the Supreme Court judgment (Re B (A Child) [2013] UKSC 33) followed by the Court of Appeal judgment Re B-S (Re B-S (Children) [2013] EWCA Civ 1146).

In the case Re B-S, social workers were criticised for not providing enough evidence that alternatives for adoption had been considered. The court held that "interventions in the family court may be appropriate, but the aim should be to reunite the family when the circumstances enable that" and that cutting off contact between the child and their family "is only justified by the overriding necessity of the interest of the child".

Considering adoption

Whether an adoption is undertaken via an adoption agency or by making an application direct to court after giving notice to the local authority, the final part of the process is the court hearing to consider the application for an adoption order. Children's services or the adoption agency will be required to file their assessment to the court. This assessment will be about the prospective adopter(s) and their suitability to adopt and the child, their views and a background of the case.

The court will hold a first directions hearing at which a number of issues will be considered with a view to ensuring the case is properly prepared for a final hearing. If the parent is opposed to the making of an adoption order there will be a final hearing over whether or not the parent's consent to adoption should be dispensed with.

In making its decision, the court must consider the child's welfare throughout their life. To determine this, they will consider the seven criteria set out in the Welfare Checklist under section 1(3) Children Act 1989:

  • The ascertainable wishes and feelings of the child concerned
  • The child's physical, emotional and educational needs
  • The likely effect on the child if circumstances changed as a result of the court's decision
  • The child's age, sex, background and any other characteristics which will be relevant to the court's decision
  • Any harm the child has suffered or may be at risk of suffering
  • Capability of the child's parents (or any other person the courts find relevant) at meeting the child's needs
  • The powers available to the court in the given proceedings

The court must also consider all other orders available, such as a special guardianship order, and must not make an order for adoption unless to do so would be better for the child than not.

After Re B-S

In a subsequent case, Sir Justice Munby emphasised that "Re B-S was not intended to change and has not changed the law" and that "where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders". The test remains the best interests of the child throughout their life. Re B-S does not require "that every conceivable option has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case". The court is only required to consider options that are "realistically possible".

Despite this, the ALB's report suggests that uncertainty about adoption when making plans for children remains. Furthermore, it suggests that the "level of geographical variability in the number of children in care with plans for adoption" shows a "continuing level of inconsistency in planning and decision making across different areas of the country".

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Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com

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