Law and Adoption

Section 47(7) of the Adoption and Children Act 2002 states that the court cannot give leave to oppose an Application for an adoption order unless it is satisfied that there has been a change in circumstances since the placement order was made. 

Therefore, a two stage process must be undertaken: 

• First, there is the factual condition precedent of a change of circumstances. 

• Second, there is a judicial evaluation as to whether, in light of such change of circumstances, and all the other relevant facts, the application should be allowed to proceed. This two stage test was established in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616.

The burden is on a birth parent Applicant to show: 

• First, that there have been changes in his/her circumstances since the Placement Order was made

• Second that he/she has solid prospects, having regard to the paramount consideration of promoting the child’s welfare throughout their life, of successfully opposing the adoption application.

It was common ground in the Family Courts that, in order to be granted permission to oppose the adoption order, the Applicant has to show that there had been relevant and material changes to him/her circumstances. Those changes do not have to be significant, but had to be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit a parent to oppose the Adoption Proceedings.

The first stage test:

a) There has been a sufficient change in circumstances ‘of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation.

b) The test should not be set too high, because parents should not be discouraged from bettering

themselves or from seeking to prevent the adoption of their children by the imposition of a test that

is unachievable.

c) Change does not have to be recent

d) Change does not need to be significant

e) Change does not have to be change in the parent – it can be change in the life of the child, or in the life of the child’s carers

f) The change should be ‘unexpected’, so changes that were clearly either foreseen, or which were foreseeable at the time of the original order, cannot qualify

g) Whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the court hearing the application; if there is no change in circumstances, the application fails.

Second stage test:

a) The child's welfare is the paramount consideration and the court must consider all the circumstances of the case, including whether the proposed application has ‘a real prospect of success' and the child's welfare.

b) The prospects of success must have “solidity”.

Section 1 (4) of the Adoption and Children Act 2002 for the welfare checklist says "The court or adoption agency must have regard to the following matters":

a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

b) the child’s particular needs,

c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,

f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including: 

(i) the likelihood of any such relationship continuing and the value to the child of its doing so, 

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, 

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

When the Court considers the welfare checklist it may also consider how long the child has been with prospective adoptive parent(s), whether there is a bond, and whether separation would affect the child. Often, children are placed with their prospective adopters before an actual adoption order is made.