2. Considering and deciding whether a child should be placed for adoption This part of the guidance explains the duties of an adoption agency where the agency is considering adoption for a child. Application of AAR 11 to 17
3
Child’s case record
4
Counselling and informing the child
5
Counselling and informing the child’s family and others
6
Information about the child
11
Information about the child’s family
12
Child’s permanence report
12
The adoption panel
16
Agency decision
16
Consent to placement
19
Considering and deciding whether a child should be placed for adoption outside the British Islands
Adoption and Children Act 2002
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Guidance: Chapter 2
1
In this chapter: AAR –
means the Adoption Agencies Regulations 2005.
AIR –
means the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005.
ARR –
means the Restriction on the Preparation of Adoption Reports Regulations 2005.
FER –
means the Adoptions with a Foreign Element Regulations 2005.
ISR –
means the Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005. Specific regulation references appear as AAR 14.4, for example, which refers to Adoption Agencies Regulation 14, paragraph 4. In this chapter, references to “an intercountry adoption” mean the adoption of a child by a prospective adopter resident outside the British Islands, including an adoption under the Convention.
Acronyms and terms are set out in the Glossary. TIMESCALES 1
2
The following timescales should generally be adhered to during this part of the adoption process, unless the agency considers that in a particular case complying with a timescale would not be in the child’s interests – the paramount consideration must always be the welfare of the child. Where the agency is unable to comply with a timescale or decides not to, it should record the reasons on the child’s case record. ●
the child’s need for a permanent home should be addressed and a permanence plan made at the four month review
●
the adoption panel should receive all necessary information from the agency within six weeks of the completion of the child’s permanence report
●
the adoption panel’s recommendation on whether the child should be placed for adoption should be made within two months of a review where adoption has been identified as the permanence plan
●
the agency’s decision on whether the child should be placed for adoption should be taken within seven working days of the adoption panel’s recommendation
●
if their whereabouts are known, the child’s parent or guardian should be informed orally of the agency’s decision within two working days and written confirmation should be sent to them within five working days.
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Guidance: Chapter 2
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The agency should monitor its performance against these timescales and make this information available in its annual report.
APPLICATION OF AAR 11 TO 17 3
Where the agency is a VAA, it will be considering the needs of a child that has been relinquished for adoption or is about to be relinquished for adoption.
4
Where a child is looked after by a local authority, it will be considering the needs of a child that is about to be relinquished for adoption or that is ‘looked after’, either because the child is being voluntarily accommodated, is the subject of an interim care order under the 1989 Act, or care proceedings have been initiated. An appropriate permanence plan should be identified no later than at the second statutory review – the four month review1. This review should consider all the options for best meeting the child’s welfare, including the child’s needs for permanence.
5
These options may include:
6
7
●
returning the child to the parent, with support where necessary
●
long term placement with the child’s wider family
●
long term placement with foster carers
●
residential placement until independence
●
placement for adoption.
As part of the statutory review, the child’s social worker should2 ascertain and record the views of the following people about the options for achieving permanence for the child: ●
the child, where he or she is of sufficient age and understanding
●
the child’s parent
●
anyone else with parental responsibility for the child
●
and any other relevant person, such as a relative, carer or CAFCASS children’s guardian where care proceedings have been initiated.
The social worker should explain the options for the child’s permanence and how these could help to meet the child’s current and future needs, and, if adoption is an option, also explain the general implications and procedures relating to adoption. The social
1
Under the Reviewing Children’s Cases Regulations 1991.
2
Under section 22(4) of the 1989 Act and regulation 5 of the Arrangements for the Placement of Children, Regulations 1991.
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worker should also provide the parent with written information about the implications of the different permanence options. 8
Where the first or second review decides that adoption is the preferred option for permanence, an adoption plan is to be commenced and the information on the care plan should be transferred to the adoption plan. It is at this point that AAR 11 provides that AAR 12 to 17 apply, as the agency is clearly considering adoption for the child.
CHILD’S CASE RECORD: AAR 12 9
10
4
AAR 12 stipulates that the agency set up a case record for the child and place on it: ●
the information and reports obtained by the agency under Part 3 of the AAR
●
the child’s permanence report
●
the minutes of the adoption panel under AAR 18, its recommendation and the reasons for its recommendation and any advice given by the panel to the agency
●
the agency’s decision and notification under AAR 19
●
consent to placement for adoption under section 19 of the Act (placing children with parental consent), if applicable
●
consent to the making of a future adoption order under section 20 of the Act (advance consent to adoption), if applicable
●
form or notice withdrawing consent under section 19 or 20 of the Act or notice under section 20(4)(a)1 or (b)2 of the Act, if applicable
●
a copy of any placement order in respect of the child, if applicable
●
and any other documents or information obtained by the agency which it considers should be included in the case record.
If the agency has on the child’s case record a notice given under section 20(4)(a) or (b)3 of the Act4 and is informed by a court that it has received an application for an adoption order, AAR 12.2 requires the agency to send a copy of the notice to the court. Where the court is aware of the existence of such a notice it will determine whether or not the parent or guardian is to be a party to the court proceedings.
1
Statement of wish not to be informed of any application for an adoption order.
2
Withdrawal of statement of wish not to be informed of any application for an adoption order.
3
Where the agency receives a notice under section 20(4)(b) after an application for an adoption order has been made, the agency is required by the Family Procedure (Adoption) Rules 2005 to immediately file the notice with the court.
4
Where the parent or guardian gives advance consent to the making of an adoption order, they may at the same time or subsequently – through a notice given in writing to the agency – state that they do not wish to be informed of any application for an adoption order, or withdraw such a statement.
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Where the child is looked after by a local authority, or provided with accommodation by a VAA1, the agency should: ●
obtain any information it needs under Part 3 of the AAR from the records maintained on the child under the 1989 Act
●
and place that information on the case record provided for by AAR 12.
COUNSELLING AND INFORMING THE CHILD: AAR 13 12
13
AAR 13 requires the agency – so far as is reasonably practicable – to: ●
provide a counselling service for the child
●
explain to the child in an appropriate manner the procedures for and the legal implications of adoption
●
provide the child with appropriate written information about the above matters as relevant
●
and ascertain the child’s wishes and feelings regarding: ●
the possibility of placement for adoption with a new family and his adoption
●
his religious and cultural upbringing
●
and contact with his parent or guardian or other relative or with any other person the agency considers relevant.
Counselling should help a child – subject to age, background and development – to understand over time what adoption would mean for him or her now and in the longer term. The child should be helped to understand why the agency considers they should not stay with their own family or short term current carer and why adoption is the preferred option for their permanence. He or she also needs to know about the implications adoption may have for contact with their parent, other family members and others.
14
1
English may not be the first language for some children, while others may have communication or learning impairments. In such cases, it is essential that the counselling is either provided by or assisted by someone who can communicate effectively with the child and who has the necessary understanding of what adoption will mean for the child. Counselling also needs to be given in a way that is sensitive to the child’s religious beliefs or other values and in an environment where the child is
Under section 59(1) of the 1989 Act (provision of accommodation by voluntary organisations).
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able to talk and ask questions in a way that enables him or her to gain an understanding of their situation. 15
The agency should provide appropriate written information, for example the Children’s Guide, about the process of adoption and adoption itself. This may help the child to reflect on what he or she has been told.
16
In seeking the child’s views, the agency should be wary of giving the child the impression that he or she is being asked to bear the weight of the decision that needs to be made about their adoption. The child should be helped to understand that their wishes and feelings will be listened to and taken into account. The child’s views should be recorded. Where the agency is unable to ascertain the child’s views, the reasons for this should be recorded on the child’s case record.
17
AAR 13 also makes it clear that the duty to counsel and inform the child does not apply if the agency is satisfied that another agency has fulfilled these requirements.
18
In cases where another adoption agency has already carried out some of the duties set out in AAR 13, the agency should take this into account in continuing the child’s counselling and should involve the child’s former social worker, as appropriate. The agency may consider that it is in the child’s interests for certain members of their family to play a part in his or her counselling. Whatever the involvement of others, the agency remains responsible for ensuring that the counselling meets the child’s needs as they develop over time and is given in a way that is sensitive and appropriate to his or her background, age and understanding.
COUNSELLING AND INFORMING THE CHILD’S FAMILY AND OTHERS: AAR 14 19
20
6
AAR 14 requires the agency to: ●
provide a counselling service for the parent or guardian of the child
●
ascertain the wishes and feelings of the parent or guardian of the child and of any other person the agency considers relevant.
During the counselling of the parent or guardian, the agency is required – so far as is reasonably practicable – to explain and provide them with written information about: ●
the procedures for placement for adoption and adoption
●
the legal implications of: ●
giving consent to placement for adoption under section 19 of the Act
●
giving consent to the making of a future adoption order under section 20 of the Act
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Guidance: Chapter 2
CONSIDERING AND DECIDING WHETHER A CHILD SHOULD BE PLACED FOR ADOPTION
Setting up the child’s case record AAR 12
Providing counselling and information, and ascertaining the wishes and feelings of the child AAR 13
Requirement to obtain information about the child AAR 15 and Parts 1 & 2 Schedule 1
Providing counselling and information, and ascertaining the wishes and feelings of the child’s parent or guardian and others AAR 14
Requirement to obtain information about the child’s family AAR 16 and Parts 3 & 4 Schedule 1
Preparing the child’s permanence report AAR 17 and Parts 1 and 3 Schedule 1
Adoption panel considers the case, makes recommendations and gives advice AAR 18
Agency decision maker’s role and written notification of the agency’s decision to the child’s parent or guardian AAR 19
Requesting CAFCASS to appoint an officer of the service where the child’s parent or guardian is prepared to consent under s19, or s19 and s20 and provision of information AAR 20 and Schedule 2
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21
a placement order
●
and the legal implications of adoption.
In establishing the wishes and feelings of the parent, guardian or any other person the agency considers relevant, the agency is required – so far as is reasonably practicable – to ascertain their views about: ●
the child
●
placement of the child for adoption and his adoption, including any wishes and feelings about the child’s religious and cultural upbringing
●
contact with the child if the agency is authorised to place the child for adoption or the child is adopted.
22
AAR 14 also makes it clear that the duty to counsel and ascertain the views of the parent, guardian or any other person the agency considers relevant does not apply if the agency is satisfied that another agency has fulfilled the requirements set out in AAR 14.
23
As well as explaining the matters set out in AAR 14, the agency needs to be clear about why it considers the child should not be returned to the parent or guardian and should be placed for adoption. The consequences of the adoption process for parental responsibility, for contact with the child and how this will change if the agency is given authority to place the child for adoption should also be made clear. As well as providing the parent or guardian with an oral explanation of these issues, the agency should provide them with clearly written explanations initially and whenever they seek this information later in the adoption process.
24
Part of the agency’s counselling should explain that the 1989 Act contact obligations would be replaced by the contact arrangements provided for under the Act and by the AAR where it obtains authority to place the child. The agency should also explain the right that the parent or guardian and others have to apply for a contact order under section 26(2) and 26(3) of the Act.
25
It is essential that the agency provides the parent or guardian with opportunities to discuss matters fully. It should offer the services of an independent support worker: someone who can provide advice and support and is either from another agency or, at least, not a member of the team of social workers who are responsible for the child’s case.1
1
8
●
National Minimum Standard 7.4, which applies to local authorities.
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The agency should encourage the parent or guardian to consult their own solicitor as soon as possible, particularly where they are not prepared to accept that adoption is the preferred option for their child.
27
Where the parent refuses to consider the proposal of adoption for the child, they may decide to decline counselling from the agency. In such cases, the agency should offer to arrange counselling through another agency. The agency should take all reasonable steps to ensure the parent or guardian is provided with the opportunity to receive counselling.
28
Where counselling is refused, the agency should record this, together with a record of its actions, on the child’s case record. The agency should also write to the parent’s or guardian’s solicitor and independent support worker to ensure that they are aware of the situation and are able to receive essential information about the legal implications of the adoption process and the rights of the parent or guardian.
29
In some cases the parent or guardian may in time accept that it is in the child’s interests for him or her to be placed for adoption and they may then be prepared to receive some counselling. The agency should, wherever practicable, maintain contact with the parent or guardian throughout the adoption process, through their solicitor if necessary, and should be ready to provide counselling to the parent or guardian, even where they have previously refused to accept counselling. Where the agency is able to maintain contact with the child’s parent it is more likely to be aware of whether they intend to attend the adoption order hearing.
30
The parent’s counselling should be sensitive to their ethnic origins and religious beliefs. English may not be their first language, so the agency should ensure that the parent’s counselling is either provided by or assisted by a person who can communicate effectively with them.
31
The wishes and feelings of the child’s parent, guardian or others should be recorded on the child’s case record as this information will be needed for inclusion in the child’s permanence report and will need to be taken into account during the matching process. This would include: ●
where the parent or guardian is willing to consent to the child being placed for adoption and whether their consent would relate to identified adopters or would be general consent to placement with any prospective adopters chosen by the agency
●
where the parent or guardian rejects the agency’s adoption proposal for the child and suggests alternative care arrangements.
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32
The agency should explain to the parent or guardian the reasons why it will need to ask them for information about themselves and the child, including health information. The agency should make it clear that this is intended to ensure the agency is able to anticipate and provide for the child’s needs now and in the future when he or she is placed for adoption.
33
The agency should explain that it will safeguard this information, but that it will need to be shared with others, such as the adoption panel, with prospective adopters where the child is placed and with the court. The parent or guardian should also be told how information may be disclosed under either the ISR1 or the AIR2 when the child becomes an adult.
34
The agency should also ask the child’s parent if they wish to deposit information with the agency for it to pass to the adopted person, should they request it when they are an adult.
35
Where a pregnant woman approaches the agency and indicates that her intention is to relinquish the child for adoption, Annex B provides additional guidance for the agency on the steps it should take.
36
Where the father of the child does not have parental responsibility for the child and the father’s identity is known to the agency – and the agency is satisfied it is appropriate to do so – AAR 14.4 requires that the agency provide him with a counselling service and ascertain his wishes and feelings.
37
The counselling should – so far as is reasonably practicable – explain to him and provide him with written information about:
38
10
●
the procedures for placement for adoption and adoption
●
and the legal implications of adoption.
In establishing the wishes and feelings of the father, the agency is required – so far as is reasonably practicable – to ascertain his views about: ●
the child
●
placement of the child for adoption and his adoption, including any wishes and feelings about the child’s religious and cultural upbringing
●
contact with the child if the agency is authorised to place the child for adoption or the child is adopted.
1
Chapter 10 provides guidance for cases where the adoption order is made before the date on which the Act commences.
2
Chapter 11 provides guidance for cases where the adoption order is made on or after the date on which the Act commences.
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Guidance: Chapter 2
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40
AAR 14.4 also requires that the agency ascertain so far as possible whether the father without parental responsibility: ●
intends to apply for parental responsibility for the child under section 4 of the 1989 Act (acquisition of parental responsibility by father)
●
or intends to apply for: ●
a residence order or
●
a contact order under section 8 of the 1989 Act (residence, contact and other orders with respect to children)
●
or, where the child is subject to a care order, an order under section 34 of the 1989 Act (parental contact etc. with children in care).
Annex B provides further guidance on counselling and informing the father without parental responsibility for the child.
INFORMATION ABOUT THE CHILD: AAR 15 41
AAR 15 requires the agency to obtain information about the child, including health information. It stipulates that – as far as reasonably practicable – the agency obtain the information specified in Part 1, Schedule 1, of the AAR.
42
AAR 15.2 and 15.3 require the agency to make arrangements for health examinations of the child and to obtain reports, provided the child does not refuse to take part in the examinations where he or she has sufficient understanding to make an informed decision1.
43
AAR 15.2 stipulates that – unless the agency has received advice from the medical adviser that this is unnecessary – the agency: ●
arrange for the child to be examined by a registered medical practitioner
●
and obtain from that doctor a written report – “the child’s health report” – about the child’s health. This report is to include information about any treatment the child is receiving, any need for health care and the matters specified in Part 2, Schedule 1, of the AAR. The latter are a neo-natal report and a full health history of the child2. Part 2, Schedule 1, of the AAR should be referred to for the full details.
1
When a child under the age of 16 has the capacity and understanding to take decisions about their own treatment, they are also entitled to decide whether personal information may be passed on and generally to have their confidence respected. Case law has established that where such a child is under 16 but has sufficient understanding in relation to the proposed treatment to give, or withhold, consent, then such consent or refusal to give consent should be respected.
2
The Data Protection Act 1998 will apply and consent from those with parental responsibility will be required.
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44
The agency’s medical adviser may advise that it is not necessary for the agency to arrange an examination and for a report to be written where it already has a report that provides the information set out under AAR 15.2. In such cases, the medical adviser will need to consider whether the child’s existing health report is recent enough to provide an accurate picture of the child’s health.
45
AAR 15.3 stipulates that the agency arrange other medical examinations and obtain reports as recommended by the agency’s medical adviser.
46
The agency will need to obtain the consent of the child’s parents (or one of them) for any examinations if they retain sole parental responsibility for the child.
INFORMATION ABOUT THE CHILD’S FAMILY: AAR 16 47
AAR 16 requires the agency to acquire information about the child’s family, including health information. It stipulates that – as far as reasonably practicable – the agency obtain the information specified in Part 3, Schedule 1, of the AAR.
48
The agency is also required to obtain – so far as is reasonably practicable – health information about the child’s family, which is specified in Part 4, Schedule 1, of the AAR. This broadly covers a health history1 and details of any present illness, and any hereditary disease or disorder, for each of the child’s parents, brothers and sisters. Annex B provides information about accessing health information.
CHILD’S PERMANENCE REPORT: AAR 17 AND FER 38 49
AAR 17 requires the agency to prepare a written report – “the child’s permanence report” – for the adoption panel where it considers in the light of all the information obtained under AAR 12 to 16 that adoption is the preferred option for the child’s permanence. ARR 3 sets out the qualifications and experience necessary for a person to prepare this report2.
50
12
The report is to include: ●
the information about the child and his family as specified in Parts 1 and 3 of Schedule 1 of the AAR
●
a summary, written by the agency’s medical adviser, of the state of the child’s health, his health history and any need for health care which might arise in the future
1
If an adult is not capable of giving consent to disclose information from their health records, the health professional concerned must make a decision whether or not to disclose in the patient’s best interests.
2
See the guidance about ‘adoption reports’ in chapter 1.
Adoption and Children Act 2002
Guidance: Chapter 2
●
●
the wishes and feelings of the child regarding: ●
the possibility of placement for adoption with a new family and his adoption
●
his religious and cultural upbringing
●
contact with his parent or guardian or other relative or with any other person the agency considers relevant.
the wishes and feelings of the child’s parent or guardian, and where AAR 14.4 applies, his father1, and any other person the agency considers relevant, regarding: ●
the child
●
placement of the child for adoption and his adoption, including any wishes and feelings about the child’s religious and cultural upbringing. Where alternatives to adoption have been suggested, these views should also be included
●
contact with the child if the agency is authorised to place the child for adoption or the child is adopted
●
the agency’s views about the child’s need for contact with his parent or guardian or other relative or with any other person the agency considers relevant and the arrangements the agency proposes to make for allowing any person contact with the child. The agency should have regard to its duties on contact as set out in the guidance for AAR 46
●
an assessment of the child’s emotional and behavioural development and any related needs
●
an assessment of the parenting capacity of the child’s parent or guardian and, where AAR 14.4 applies, his father
●
a chronology of the decisions and actions taken by the agency in the child’s case
●
an analysis of the options2 for the future care of the child which have been considered by the agency and why placement for adoption is considered the preferred option
●
and any other information which the agency considers relevant.
1
Where the father of the child does not have parental responsibility for the child and the father’s identity is known to the agency – and the agency is satisfied it is appropriate to do so – AAR 14.4 stipulates that the agency provide him with a counselling service and ascertain his wishes and feelings.
2
(a) returning the child to the parent, with support where necessary; (b) long term placement with the child’s wider family; (c) long term placement with foster carers; (d) residential placement until independence; (e) placement for adoption.
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51
The agency should provide the child’s parents with a copy of the child’s permanence report or with those parts of the report that relate to the parent, where the agency considers the latter appropriate. The agency may also provide the child with a copy of the report, or parts of the report, where he or she is of sufficient age and understanding and the agency considers it appropriate.
52
14
AAR 17.2 requires the agency to send to the adoption panel: ●
the child’s permanence report
●
the child’s health report and any other reports referred to in AAR 15
●
and the information relating to the health of each of the child’s natural parents.
53
The agency should inform the panel whether the child’s parents have seen the child’s permanence report, or parts of that report, and pass to the panel any views the parents have expressed on the report.
54
Where the adoption panel requests other relevant information, AAR 17.3 requires the agency to obtain it, so far as is reasonably practicable, and send it to the panel. This might, for example, include information from specialists in education or child and adolescent mental health.
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PANEL RECOMMENDATIONS AND AGENCY DECISION AS TO WHETHER THE CHILD SHOULD BE PLACED FOR ADOPTION
Adoption panel to consider the case of each child referred to it by the agency AAR 18.1
Panel must take into account reports and any other information passed to it in accordance with AAR 17 AAR 18.2.a
Panel must obtain legal advice about the case AAR 18.2.c
Panel may request the agency obtain any other relevant information AAR 18.2.b
Where the panel makes a recommendation that the child should be placed for adoption, it must consider and may give advice on contact arrangements and, if the agency is a local authority, whether an application should be made for a placement order AAR 18.3
No panel member shall take part in any decision about whether the child should be placed for adoption AAR 19.2
Agency must take into account the recommendation of the adoption panel in coming to a decision about whether the child should be placed for adoption AAR 19.1
Agency must notify the child’s parent or guardian of its decision AAR 19.3
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THE ADOPTION PANEL: AAR 18 55
Where the agency refers a child’s case to the adoption panel, AAR 18 requires the panel to consider whether the child should be placed for adoption and to make a recommendation.
56
AAR 18.2 stipulates that in considering what recommendation to make the adoption panel must have regard to the duties imposed on the agency under section 1(2), (4), (5) and (6) of the Act (considerations applying to the exercise of powers in relation to the adoption of a child) and: ●
must consider and take into account the reports and any other information passed to it in accordance with AAR 17
●
may request the agency to obtain any other relevant information which the panel considers necessary
●
and must obtain legal advice in relation to the case.
57
Advice to the panel may be given orally and in writing. As well as legal advice, the panel may wish to call for advice from social workers with particular expertise, such as in intercountry adoption or from specialists in education or child and adolescent mental health.
58
Where the panel makes a recommendation to the agency that the child should be placed for adoption, AAR 18.3 stipulates that it must consider and may at the same time give advice to the agency about: ●
the arrangements which the agency proposes to make for allowing any person contact with the child
●
and, where the agency is a local authority, whether an application should be made by the authority for a placement order.
AGENCY DECISION: AAR 19 59
16
When the agency receives the recommendation of the adoption panel as to whether the child should be placed for adoption, AAR 19 applies. This requires the agency to take into account the recommendation of the panel in deciding whether the child should be placed for adoption. Before reaching the decision, the agency decision maker should consider the minutes of the panel meeting and the reports submitted to the panel that considered the child’s case. In reading the minutes of the meeting, he or she should have particular regard to the panel’s reasons for making the recommendation and any particular concerns that are recorded in the minutes.
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The agency decision maker’s decision and the reasons for that decision should be recorded on the child’s case record, as required by AAR 22. Where the decision maker is minded not to accept the adoption panel’s recommendation, he or she should discuss this with another senior person in the agency who is not a member of the panel. The outcome of that discussion should also be recorded on the child’s case record.
61
AAR 19.2 prohibits any member of the panel from taking part in the agency’s decision. It is essential that the fundamental decision about whether a child should be placed for adoption is objective and impartial, and should be taken by the agency decision maker, a senior person in the agency who is not a member of the panel that submitted the recommendation.
62
The agency is required by AAR 19.3 to notify in writing the parent or guardian of its decision, if their whereabouts are known to the agency. Where the father of the child does not have parental responsibility for the child and his identity and whereabouts are known to the agency – and the agency considers it appropriate – it is also required to notify him in writing of its decision.
63
Unless an application has been made for a care order and has not been disposed of by the court1, 2 the agency should now seek to ascertain whether the parent or guardian is prepared to consent to:
64
●
placement of the child for adoption under section 19 of the Act with prospective adopters identified in the consent, or with any prospective adopters who may be chosen by the agency
●
or placement of the child for adoption under section 19 of the Act, as above, and to the making of a future adoption order under section 20 of the Act.
If the parent or guardian is prepared to give consent, the agency should inform them in writing that: ●
they may withdraw their consent but that withdrawal of consent is ineffective if withdrawn after an application for an adoption order has been made3, 4
●
and where the parent or guardian gives consent under section 20 of the Act, they may at the same time or subsequently – through a notice5 given in writing to the agency:
1
In such a case, the local authority has a duty under the Act to apply to the court for a placement order as the authority is now satisfied that the child should be placed for adoption: section 22(2)(a) of the Act.
2
Annex A provides information about care orders and placement orders.
3
Section 52(4) of the Act.
4
AAR 38 sets out the agency’s duties where consent is subsequently withdrawn and the withdrawal is effective.
5
Section 20(4) of the Act. “Notice” means a notice in writing (see section 14(4)(1)).
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●
state that they do not wish to be informed of any application for an adoption order
●
or withdraw such a statement.
Baby placements where the child is relinquished for adoption 65
Where the child is less than six weeks old at the time the agency makes its decision, the agency should follow the steps set out in AAR 19.3. It should not, however, seek to obtain consent to placement for adoption or to adoption: section 52(3) of the Act makes it clear that any consent given by the mother to the making of an adoption order is ineffective if given when the child is aged under six weeks.
66
In such a case, unless an application has been made for a care order and has not been determined by the court, the agency should seek to ascertain whether the parent or guardian is prepared to agree to the baby being placed for adoption either with prospective adopters identified in any agreement or with any prospective adopters who may be chosen by the agency. If the parent or guardian is prepared to make such an agreement, they should be asked to sign the agreement form set out in Annex B. The agency should place the signed agreement form on the child’s case record.
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The agency should provide additional counselling for the parent or guardian where it is seeking to obtain their signed agreement to the placement for adoption of their child aged under six weeks of age. The agency should make it clear orally and in writing that: ●
18
the parent or guardian retains full parental responsibility until ●
they give their consent under section 19 of the Act, after the child reaches the age of six weeks
●
a placement order is made
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or an adoption order is made
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the parent or guardian may only have contact with the child by agreement with the agency or by order of the court
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if the parent or guardian asks for the child to be returned, the child must be returned by the agency unless any of the following orders are applied for or made in relation to the child: ●
an emergency protection order or a care order under the 1989 Act
●
a placement order or an adoption order under Act
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after the child is six weeks old, the agency will seek to arrange for them to give their formal consent to the child being placed for adoption.
The agency should try to maintain contact with the child’s parent and ascertain when the child reaches the age of six weeks whether they are prepared to consent to: ●
placement of the child for adoption under section 19 of the Act with prospective adopters identified in the consent, or with any prospective adopters who may be chosen by the agency
●
or placement of the child for adoption under section 19 of the Act, as above, and to the making of a future adoption order under section 20 of the Act.
CONSENT TO PLACEMENT: AAR 20 69
AAR 20 applies where the parent or guardian of the child is prepared to consent to: ●
placement of the child for adoption under section 19 of the Act
●
or placement of the child for adoption under section 19 of the Act and to the making of a future adoption order under section 20 of the Act.
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The parent or guardian may consent to the child being placed with specified prospective adopters1, or with any adopters chosen by the agency. In England, consent to placement – the signing of a prescribed form – must be witnessed by an officer from the Children and Family Court Advisory and Support Service (CAFCASS) to ensure that it is properly given, and that the parents fully understand its implications.
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Where the child is ordinarily resident in Wales, consent to placement must be witnessed by a Welsh family proceedings officer, appointed by the National Assembly for Wales. Where the parent lives in Wales but the child lives in England, consent to placement must be witnessed by a CAFCASS officer.
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AAR 20 requires the agency to request that CAFCASS appoint an officer, or to request that the National Assembly for Wales appoint a Welsh family proceedings officer, to witness the parent’s or guardian’s consent to placement for adoption, or to consent to placement for adoption and to advance consent to adoption. AAR 20 also stipulates that the agency send with that request the information specified in Schedule 2.
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In making the request for a CAFCASS officer to witness consent, the agency should write to the CAFCASS office that is nearest to the parents’ or guardian’s address.
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Specific adopters do not have to be identified by name, so that where appropriate their anonymity may be safeguarded. For example, they could be identified as adopters with a particular reference number and their family and home could be described in general terms to give the parent an impression of the family with whom their child may be placed.
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For consent to be effective, a CAFCASS officer will need to be satisfied that the parent or guardian fully understands the consequences of giving consent and that they are willing to do so unconditionally1. The CAFCASS officer will then need to witness the formal signing by the parent or guardian of the consent to placement form, a prescribed form, sign the form himself or herself and then notify the agency in writing, including the consent form with the notification. The CAFCASS officer is to keep a copy of the original form.
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When there is an application for an adoption order to the court, it should be accompanied by the original consent form, signed and witnessed. The agency will need to ensure that prospective adopter is aware of this requirement. A copy of the consent form will not be acceptable to the court and the agency should ensure it safeguards the original form, arranging for it to be delivered by hand or sent by recorded delivery.
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The agency should keep on the child’s case record the signed consent form and any notice given to the agency that the parent or guardian does not wish to be informed of any application for an adoption order2, and any notice of withdrawal of such a statement3. See AAR 12.2.
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Where the CAFCASS officer is not satisfied that the parents wish to give their full consent, or has doubts that they fully understand its implications, or considers that they are not competent to give consent, he or she will be directed by CAFCASS guidance to notify the agency. In these circumstances consent cannot be given.
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Where formal witnessed consent is given, the agency is authorised to place the child for adoption. The agency should consider whether it can rely on the parents’ consent remaining in place. If it is a local authority, it may apply for a placement order if the conditions under section 22 of the Act are met. Annex A provides further guidance on placement orders.
CONSIDERING AND DECIDING WHETHER A CHILD SHOULD BE PLACED FOR ADOPTION OUTSIDE THE BRITISH ISLANDS 79
1
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This part of the guidance explains the additional duties of an agency where it is considering adoption for a child by a prospective adopter resident outside the British Islands under the Convention. For non-Convention cases, this part sets out additional guidance for the agency to follow. In both cases, the preceding guidance in this chapter applies together with the guidance that follows below.
Section 52(5) of the Act.
2
Section 20(4)(a) of the Act.
3
Section 20(4)(b) of the Act.
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In Convention cases, the FER apply in conjunction with the AAR in relation to the following: ●
Counselling and informing the child (FER 36 and AAR 13)
●
Counselling and informing the child’s family and others (FER 37 and AAR 14)
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Child’s permanence report (FER 38 and AAR 17)
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The adoption panel (FER 39 and AAR 18)
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Agency decision (FER 40, 41 and AAR 19)
COUNSELLING AND INFORMING THE CHILD: FER 36 81
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In Convention cases, FER 36 requires the agency – so far as is reasonably practicable – to: ●
provide a counselling service for the child
●
explain to the child in an appropriate manner the procedures for and the legal implications of intercountry adoption, including a Convention adoption.
The agency should also undertake this in non-Convention cases.
COUNSELLING AND INFORMING THE CHILD’S FAMILY AND OTHERS: FER 37 83
In a Convention case, the agency is required by FER 37 to counsel the child’s parent or guardian. The agency should explain to them – so far as is reasonably practicable – the procedures for adoption, including a Convention adoption, and the legal implications of adoption, including a Convention adoption. The agency is also to provide them with written information about these matters.
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This requirement also applies where the father of the child does not have parental responsibility for the child, the father’s identity is known to the agency and the agency is satisfied it is appropriate to counsel him and explain these matters to him.
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The agency should also undertake this in non-Convention cases.
CHILD’S PERMANENCE REPORT: FER 38 86
In a case where the agency is considering an intercountry adoption for the child, including a Convention adoption, FER 38.1 requires the agency to include in the child’s permanence report an assessment on whether an adoption by a person in a particular country is in the child’s best interests and a summary of possibilities for placing the child within the UK. This should also be included for non-Convention cases.
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In a case where the agency is considering an intercountry adoption under the Convention for the child, FER 38.2 requires the agency to also send to the adoption panel the Article 15 report, if received, and the agency’s observations on that report.
THE ADOPTION PANEL: FER 39 88
In a case where the agency is considering an intercountry adoption under the Convention for the child, FER 39 requires the panel to consider and take into account: ●
the Article 15 report, if available, and the agency’s observations on that report
●
and the assessment in the child’s permanence report on whether an adoption by a person in a particular country is in the child’s best interests, as required by FER 38.
AGENCY DECISION: FER 40 AND 41 89
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In a case where the agency is considering an intercountry adoption under the Convention and the agency decision maker decides that the child should be so placed, FER 40 requires the agency to notify the DfES1 to include the child’s details on the Convention list (see FER 41) and to send to the DfES2: ●
the name, sex and age of the child
●
the reasons why the agency considers that the child may be suitable for such an adoption
●
whether a prospective adopter has been identified and, if so, provide any relevant information about that prospective adopter
●
and any other information that the DfES may require.
Such a decision and notification does not prevent the agency from subsequently considering a domestic adoption placement or other permanence option for the child. If the agency later decides that an intercountry Convention adoption is no longer in the child’s best interests, it is required by FER 41 to notify the DfES, which will remove the child’s details from the Convention list.
1
The designated Central Authority for England.
2
Annex C provides further information.
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