Written by Emily Boardman, partner at Boardman, Hawkins & Osborne LLP
Part One: Pre-Placement
As a prospective adopter, it is, without a doubt, a scary prospect that something could go wrong on the journey to becoming a parent. However, we also know that adopters do not want to adopt children who could be with their birth family, and it is, therefore, essential that every application birth families make is dealt with properly and quickly by the Courts.
The court order that permits a Local Authority to place a child for adoption is called a Placement Order. It is this order that a birth parent must overturn (revoke) before a child is placed with prospective adopters to stop the placement proceeding.
If you find yourself in the situation of having been linked or matched with a child, and then an application to revoke the placement order is made, it will slow everything down considerably and may be a source of great worry for you. This article sets out an overview of the process.
The application for leave to apply to revoke the placement order
In order to revoke a Placement Order, a birth parent must first show a Judge there is a change in circumstances (theirs or the child’s) and that their application should be considered. This first step is called the leave process – they are asking for leave (permission) to make the application.
Applications for leave are not particularly unusual, but most do not succeed. I know this from my firm’s practice and guidance given by The Court of Appeal.
It is relatively easy to show a change of circumstance; some examples could be a period of abstinence from drugs and/or alcohol, a new relationship that is healthy, supportive, and not violent, a period of therapy, or having another child who remains in their parents’ care.
It is harder to persuade a court that the child’s welfare demands that the application for leave is allowed or that the prospects of success are high.
Remember that if leave is given, it does not mean that the application to revoke the Placement Order will succeed. But it does mean further delay while the Court considers the main application to revoke.
The application to revoke the placement order
Most birth parents do not get this far, but if they do, they must persuade the court that the placement order should be revoked, which is a very different legal test from the leave application.
At this stage, the Court must exclusively consider the child’s welfare, and the Judge must carefully balance the positives and negatives of each option. The child’s welfare is the most important consideration, and whilst there is a presumption in favour of a child maintaining a connection to her birth parent(s), it does not outweigh everything else.
Most fundamentally, the court will look at the needs of the child, and this is where birth parents generally fail in these applications. A child will not be returned to a birth parent, even one who has made ‘transformational change’, if that move is unlikely to work for that child and would not give that particular child what they need.
Court of Appeal cases
In a case that went to the Court of Appeal in 2020, the birth mother had made ‘transformational change’ (so succeeded in being granted leave) but did not succeed in her application to revoke the Placement Order because the children’s welfare needs were for a permanent placement rather than the untested possibility of a successful return to their birth family. The Court said:
“By reason of their damaged experience in early life, the children need more than merely coping parenting….”
“The problem for these children is not what their mother can offer them now, but what they need now as a result of what they endured in the past.”
In 2023, another Court of Appeal case dealing with an application to revoke the placement order acknowledged the progress made by the birth mother, but the court refused her application and noted that:
“…time has not stood still for [the children] either and they now urgently require a permanent home.”
In practice, we hear from a lot of birth parents who wish to make these applications, but very, very few who meet the criteria to do so.
Right to Appeal
If leave is refused or the main application is refused, a birth parent has the right to appeal that decision. They have 21 days within which to do so.
It is my view that Local Authorities should not start introductions or proceed with a placement until those 21 days have elapsed.
Practical implications
Once a birth parent has sent in the paperwork to seek leave, the Local Authority cannot place the child with prospective adopters. Introductions would be stopped, a move to place would stop, progress would feel very limited, as though it has ground to a halt.
By that point, there is little that a Local Authority can do to speed things up other than inform the court that a placement was imminent and ask that decisions be made as quickly as possible.
(This is not the place to bemoan the state of the family court at the moment, but just to note, in passing, that ‘as quickly as possible’ may not feel quick at all.)
It is also worth noting that prospective adopters in these situations have no legal right to information about the process that is going on, which may feel very frustrating.
What could be done earlier to avoid these applications and delays?
My view is that Local authorities need to be in a better position to place children with adopters quickly after the court makes a placement order.
In the case that went to the Court of Appeal in 2020, the delays were horrendous. Some of the delay would appear to have been at the hands of the Local Authority, and some because of unavoidable issues, but in the end the final hearing of the birth mother’s application (and appeal) was two years after the original placement orders were made. The delay for the prospective adopters must have been agonising.
This was an unusually long delay, but prospective adopters do need to be aware of what these applications may mean for them and the children they wish to adopt.
A final thought on legal delays in the adoption process
It is my experience that birth families making these applications are desperate. They are not usually taking steps to simply delay or frustrate a placement; they want their children back and want to be able to show the children and their families that they have done everything they could to get them back.
Where they have really changed and the child’s welfare demands it, they should return to their birth families, but this is really very rare. If the processes work as they should, these applications are dismissed swiftly when they are without merit.
Prospective adopters do not usually need legal advice in these circumstances and they should be well supported by their agency or the Local Authority.
In some cases, however, Local Authorities are funding legal advice for prospective adopters so that they understand the process that is going on. In other cases, I have clients who do not feel well supported by the Local Authority, and they wish to take their own advice.
Next month’s article will look at applications made by birth parents during the adoption proceedings to oppose the making of the adoption order.
Head to the adoption section to read interviews and articles about the process.
