Written by Emily Boardman, partner at Boardman, Hawkins & Osborne LLP
If you are an early permanence carer, are you a foster carer or a prospective adopter?
Before the placement formally becomes an adoptive placement, you are a foster carer. After that, a prospective adopter. This distinction represents a very significant difference in your rights and the proceedings that relate to the child.
Pre-adoption placement, the law is broadly care proceedings law (the court process used by children’s services to permanently remove a child from their family), and once the placement becomes an adoptive placement, the law is broadly adoption law.
Care Proceedings
Of course, there is law that applies to care cases, but in general, the processes are pretty flexible. Different local authorities and courts can follow subtly different processes and use different terminology, and timeframes are, in practice, a fairly fluid concept.
For example, the law says that care proceedings should conclude within six months, but in practice, there are areas of England and Wales, and types of cases, that never meet that deadline. Part of the reason cases take longer is that the family courts are overwhelmed at the moment, and so are the professionals dealing with these cases.
This can be especially frustrating when you are a foster carer, and you are on the outside of the court case.
The local authority (LA) can apply for an Emergency Protection Order (EPO), which is a short-term order, or an Interim Care Order (ICO), which can last for as long as the court process lasts, with the intention of removing children and placing them in foster care.
What happens in care proceedings?
The purpose of care proceedings is to assess the birth family and present evidence so that a Judge can decide whether child grows up in their birth family, or not.
The LA, the parents and the child are all legally represented and have access to all the relevant paperwork. Foster carers are not party to the proceedings or legally represented and have no entitlement to the evidence filed.
Depending on the concerns about the parents, there will be various assessments of them – certainly a parenting assessment, sometimes a psychological or psychiatric assessment, and sometimes hair strand testing to test for drug and alcohol use.
The LA is required to assess other ‘connected persons’ to care for the child. Usually, these are family members, but sometimes friends.
If there are allegations of physical or sexual abuse, there will also be experts involved to advise on the injuries, and this can cause a very significant delay because there are too few experts who do this kind of work for family courts.
While these assessments are ongoing, the child will have contact (or family time) with his/her parents. Sometimes also with siblings or extended family. In general, it is 2-3 times a week, supervised by children’s services, in a contact or family centre. There are cases where newborn babies have contact five times a week, and there are cases where contact reduces if birth parents do not turn up regularly.
How many hearings will there be? Well, unfortunately, that is not predictable either. At least three, but in some cases, there will be a lot more.
At the end of the care proceedings, the LA must decide what final orders it seeks. If the plan is for adoption, the LA will seek a final Care Order and a Placement Order.
When will the LA plan for Early Permanence?
LAs will look for early permanence only in certain circumstances – for newborn or young babies, for children whose parents have had other children removed recently, and if they have local approved early permanence (EP) carers available.
Why? The ideal scenario is that a child does not have to move carer to achieve permeance at the end of the proceedings so the LA is prioritising EP for those children who are not already attached to a carer after birth (newborn babies) or when they feel most confident that the child will not return to the birth family (in other words, families who have been assessed negatively recently).
Contact
The reason that I think there should be particular care taken with EP carers is that if the child remains with you as adopters, you will then want to ensure your details are not known to the birth family, and the time to think about that is right from the beginning.
Contact is a time when you can come face to face with the birth family, and arrangements must be in place to ensure they are not given your full names, occupation, address, location and so on, by mistake.
Some birth families do present a risk to carers, and in some scenarios, they might wish to know where their child is living. Things to think about are:
- Can they follow you home from contact (or ask someone else to), or can you easily build in a detour after every contact?
- Do you travel to contact in your own car, in which case they would learn your registration number, or do you use a taxi?
- Perhaps choose to use a different name with staff at the contact centre, so your identity is a bit more protected.
- Think very carefully and take advice before giving birth families your mobile number or email address.
It is essential that you are thinking about this before contact starts.
Appeals
In theory, any decision made by a Judge can be appealed, but usually it is the final decision that is appealed in practice.
An appeal should be lodged with the appeal court within 21 days of the final decision, and for that reason, it is good practice not to turn an EP placement into an adoptive placement until that time has passed.
Problems and delays
What else causes delays or problems in care proceedings? Sadly, many things, but I want to highlight a few.
Family members should be put forward to be assessed at the beginning of the case, but if a family member comes forward later, it is still common that Judges allow more time to assess them. There are good reasons for this, but it can be frustrating for EP carers if care proceedings have to be extended for this reason.
At any point during care proceedings, the birth family can apply to the court for the child to return home, or to a positively assessed family member. This is not a decision that is only made at the end of the proceedings.
Does the length of time the child has spent with you factor into the decision-making at the final hearing?
No. The Judge is deciding whether it is safe for the child to grow up in their birth family. At this stage, they are not weighing up whether the child would be better off with you.
What if you think the court has got it wrong?
It doesn’t matter. That may sound harsh, but your point of view is probably borne out of attachment to the child and the information being given to you by children’s services. You must remember that you do not have the full picture, but the Judge does. This is often the most significant challenge for EP carers.
What if the LA is recommending the child return home, and you want the child to stay with you – should you apply to join the court proceedings so you can put your case to the Judge?
In brief, no. There is clear guidance on this particular circumstance, and foster carers are advised not to join the proceedings.
When does EP become an adoptive placement?
After care proceedings have ended and the LA has got care and placement orders (and they have not been appealed successfully), then, and only then, the process begins to turn the placement with you into an adoptive placement.
The LA must take you to matching panel and get approval of the decision by the agency decision maker before the change in legal status. You then become a prospective adopter, and you finally have parental responsibility (PR) for the child (but remember the birth parents and LA also have PR until an adoption order is made).
Hopefully, things will now start to speed up.
Adoption orders
After 10 weeks, you can apply for an adoption order. You should do this in conjunction with the LA and your supervising social worker. The LA should send the application off to the court for you, and it will be sent to the court that dealt with the care proceedings. Sometimes this is local to you, and sometimes it is not.
There are some scenarios in which the LA recommends waiting longer than 10 weeks to make the application. You should discuss these with your supervising social worker.
Most courts now deal with adoption applications on paper to start with (in other words, without a hearing). The court will direct the LA to assess your suitability to adopt the child and send it to the Judge.
The court will also tell the birth parents that you have applied to adopt the child (without providing details about you), and they can ask the court for permission to oppose the making of the order.
Usually, the LA deals with the application on behalf of the adopters, and you may never need to go to a court hearing.
Once the adoption order is made, you can attend a celebration event, and you can choose which court that will be in. If the court that dealt with the care proceedings is some distance from you, you can choose a local court to have your celebration event in.
What can go wrong in adoption applications?
I have written pervious articles about what can go wrong in adoption applications, so I am not going to focus on that here, other than to talk about post-adoption contact.
Post adoption contact
The most common form of post-adoption contact is letterbox contact – an exchange of letters, usually once or twice a year, sent securely through the LA or the regional adoption agency that covers the area. Sometimes these include photos, gifts and cards.
However, there is a shift towards the family court encouraging professionals to think more seriously about direct contact for all children, if it is safe to do so, and it is an application that birth families can make.
Direct contact is still more likely to be appropriate for older children who remember their birth families or siblings, and less likely for babies, but we may start to see that changing.
When you might need a lawyer
If you don’t agree with the LA plans at any stage, or the LA stops supporting you as the long-term carer for the child, you should initially talk to your supervising social worker. They will help you decide if you need legal advice. If you want to take legal advice at this stage, the LA will probably not pay for it.
However, if the birth family apply for permission to oppose the adoption order or apply for post-adoption contact, I would expect the LA to fund some initial legal advice for you. If the birth family are granted permission to oppose the adoption order, the LA may pay for you to be represented by lawyers in court.
Legal fees are expensive, and adopters always have something better to spend their money on.
Some LAs say that you have to choose one of their ‘approved’ solicitors in order for them to fund legal advice. That is not right, and you are entitled to choose your own lawyer. Always get advice from a family lawyer who knows about adoption (not all family lawyers do).
Most adoption lawyers, including my firm, cover the whole country and offer appointments via Teams.
Head to the adoption section to read more articles about the legal process.
