Applying to adopt without the local authority’s support

Written by Emily Boardman, partner at Boardman, Hawkins & Osborne LLP

The majority of prospective adopters make their application to adopt through the normal ‘agency’ route – they are approved as adopters, matched with a child, the child is placed with them, the local authority (LA) supports them in making an application to adopt that child, and the LA (on the whole) manages the process on their behalf.

There is another route to adoption, which is less common and far more complicated – the ‘non-agency’ route.

I will not be able to cover all possible scenarios in this article, so it is more that I wish to flag up the complexities of being a ‘non-agency’ applicant for adoption and clarify when you should seek advice and representation.

By way of an example, Re J, K and L was a case in which I represented the applicants. They were foster carers who wished to adopt three children who had been in their care for many years. The case was ultimately unsuccessful because the court felt the applicants were not the best placement for the children long-term, due to difficulties within the placement that were very particular to that case. Despite that, the case sets out some of the challenges that non-agency applicants will face.

The procedure

Non-agency applicants are usually step-parents or foster carers, and the child must have lived with them for a prescribed time (it varies depending on which category you fit into) before they are allowed to even make the application to adopt. In some circumstances, the court can shorten that time requirement, but that too requires an application to the court.

Applicants must give their own local authority notice of their intention to adopt at least three months before making the application. This must be done in writing, which triggers the LA’s obligation to assess the applicant(s). It’s important to make sure you are sending that notice (which can just be an email) to the right place, so it’s a good idea to check that.

The LA must see the child in the placement and prepare a report on the suitability of the applicant to adopt a child (often referred to as an Annex A report). Bear in mind this applies to step-parents as well as foster carers. The report is sent to the court, not to the applicants (although they should see the part that applies to them).

It’s also important to remember that birth parents are automatically respondents to these applications and can oppose them.

Applying to adopt without the local authority’s support: Seeking legal advice

The real difficulties arise where the Annex A report is not positive, or where the LA says they do not support the making of the adoption order, even when the report is positive.

At that point, it is very important to take legal advice because these proceedings can be very tricky.

For example, if you challenge the conclusions of the Annex A report (without seeing it), we need to get the report for you to read, put together evidence to refute the conclusions, and consider whether someone independent should prepare another assessment.

We will need to ensure that the LA cannot remove the children from your care in the meantime (if you are a foster carer) by asking for their formal agreement not to or applying for an injunction to prevent them from being able to.

The evidence we need to gather will depend on the reasons why the LA are opposing the adoption, for example, do they think the children should not be adopted at all, or should they be adopted by someone else? Do they have concerns about your care of the children or your ability to support the children’s relationship with their birth family? Do they think an alternative order would provide sufficient protection for the children in your care? All of these scenarios require a different response.

These proceedings can be difficult, time-consuming, and expensive, and it is essential that you speak to a solicitor who really understands adoption law.

If you’d like legal advice about this topic, head to our website to find out how I can help.