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

In my last article, I dealt with applications that can be made by the birth family prior to placement with prospective adopters. Here, I deal with a birth family seeking to oppose an application for an Adoption Order.

Prospective adopters usually submit their application for an Adoption Order in consultation with both their social worker and the child’s social worker. They should be informed at that stage of the possibility that the birth family could seek leave of the court to oppose their application and how it will affect and delay the process.

Leave application

In order to oppose the making of an Adoption Order, a birth parent must first show a Judge that there is a change in circumstances (theirs or the child’s, which is of a sufficient nature or degree) 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, and most do not succeed. What I usually see is birth families, without lawyers, writing to the court to say they do not want the Adoption Order to be made. Most courts will consider this to be an application for leave to oppose, and an extra hearing will be listed so that the birth family can explain to the Judge why they should be able to oppose the application. Prospective Adopters do not usually attend that hearing, but the child’s social worker (and her lawyer) should do.

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; having another child who remains in the applicant birthparent’s care; or even in rare cases a family member who is available to care who they believe should have been assessed (if these assessments are dealt with correctly in the care proceedings this should rarely crop up).  

Child’s welfare

It is harder to persuade a court in respect of the second part of the test, i.e. that the child’s welfare demands that the application for leave is allowed, or that the prospects of successfully opposing the adoption are high (it is not necessary to establish a high prospect of success of having the child returned to the birth parents care at this stage).

Remember that if leave is given, it does not mean that the application to oppose the Adoption Order will succeed, but it does mean further delay while the Court considers the main application to oppose. The main application will be listed for a separate court hearing following a successful leave application.

The application to oppose an Adoption Order

Most birth parents do not get this far, but if they do, they must persuade the court that the Adoption Order should not be granted, which is a very different legal test from the leave application. 

At this stage, the Court must consider the child’s welfare and the Judge must carefully balance the positives and negatives of each option. The child’s welfare, including his welfare interests throughout his whole life, is the most important consideration.

When looking at welfare, it will be necessary to look at how it would affect the child to be moved from the prospective adopters back to birth family.

It is extremely rare that birth families succeed in opposing an Adoption Order. I am aware of only a handful of cases where a child was returned to his birth family at this point.  

In practice, my firm hears from a lot of birth parents who wish to make these applications, but very, very few who meet the criteria to do so.

Opposing an adoption application: 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.

Practical implications

Because these applications are often made by birth families without lawyers, the prospective adopters need to be protected from being identified by accident. They also need to ensure that if they are not present at hearings, someone is representing their interests. Usually, I would expect the placing Local Authority to be doing this, but I would encourage prospective adopters to ensure that they are having these conversations with the assistance of their own social worker.

In my previous article, I said that prospective adopters do not usually need legal advice when an application is made by a birth family before placement.

My view about an application made for leave to oppose an Adoption Order is different. Prospective adopters really should consider whether to obtain legal advice in these circumstances. The Local Authority should agree to fund some initial advice about the legal process so that prospective adopters know what to expect.

Thereafter, it may be necessary for prospective adopters to be legally represented. In some circumstances, the fees for the legal representation of adopters may be paid by the Local Authority.

An application for leave to oppose an Adoption Order will delay the making of the final order. How much delay will depend on the court making sure that hearings take place as quickly as possible – and sometimes that depends on proactive lawyers.

One impact that Covid has had on family proceedings has been the move into remote hearings – hearings conducted by video link. It is my view that these create an excellent opportunity for prospective adopters to attend hearings anonymously if they wish to, where they previously could not.

A final thought

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 demonstrate to their children and their wider families that they have done everything that they could to achieve this. If the processes work as they should, these applications should be dismissed swiftly when they are without merit.

Head to the adoption section to read articles about the assessment process, placement and more.

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.

I’m again grateful to Sarah from the Adoption Legal Centre for writing this article to explain the process. She explains the steps birth parents have to take to be able to take part, with examples of the types of things that may meet the criteria. I hope anyone at this stage finds it demystifies the process and helps them understand what to expect.

Court Proceedings: Care and Placement Orders

The main question we get asked by adopters is, “What will happen if the birth parents oppose?”. This is an issue that worries a lot of adopters. At the Adoption Legal Centre, we have represented adopters on numerous occasions when birth parents have decided to oppose the adoption application.

When children are removed from their birth parents, they are subject to what are known as care proceedings. If the Court decides that a child cannot return to their birth parents, then depending upon the child’s age, they could be placed for adoption. If this is the plan for a child, the Court will make a Care and Placement Order at the end of the care proceedings. The Care Order means that the Local Authority share parental responsibility with the birth parents. The Placement Order means that the Local Authority can place the child for adoption.

Application for the Adoption Order

Once a child has lived with their adoptive parents for at least ten weeks, an adoption application can be submitted to the Court to formally adopt their child. When that application is received by the Court, the birth parents have to be provided with notice of it. Until an Adoption Order is made, the birth parents still have parental responsibility for their child. This is the case even when a Care Order has been made. This means that the birth parents have a right to be told that an adoption application has been made.

When the Court office receives the application, they will send notice to the birth parents. The birth parents will not receive any information in respect of the adopters, or the whereabouts of the child. They’ll just be informed that an application has been made. It will also be explained to them that if they wish to oppose the application, they will need to notify the Court before the initial hearing.

Opposing the Adoption Application

In order to oppose an adoption application, the birth parents need to ask permission of the Court. They have to satisfy a two-part test to obtain the Court’s permission. The first part of the test is to show that there has been a change in their circumstances since the child was removed from their care.

An example of this could be that a younger sibling is now being cared for by birth parents. Or they’ve taken steps to address issues which were identified in the care proceedings. This could be in relation to drugs and alcohol, mental health difficulties or domestic violence.

If the birth parent can satisfy the Court that there has been a change in circumstances, then the Court will go on to consider part two of the test. This is to decide whether permission should be given. In reaching this decision, the Court will have to consider their prospects of success in opposing the Adoption Order. They will also have to consider the impact on the child if permission is given or refused. When coming to their decision, the court will always consider the child’s welfare.

If the birth parents do oppose the adoption application, then the Court could decide that the child needs representation within those proceedings. This is to ensure that the child’s voice is heard within the proceedings.

Court Proceedings: The Children’s Guardian

The Court then appoints a Children’s Guardian on behalf of the child. The Guardian is allocated from an organisation called CAFCASS. They are independent of all parties and the Court. They are allocated to look at what is in the child’s best interests. The Guardian also instructs a solicitor to represent the child within the proceedings.

If a Guardian is appointed, they will speak to all parties to find out what the situation is. This will include visiting the child and talking to them in an age-appropriate way about what’s happening. The Guardian will then provide a recommendation to the court, as to what outcome, in their professional opinion, is best for the child.

If the Court does give birth parents permission to oppose the Adoption application, that doesn’t mean they will be successful in persuading the Judge to refuse to make the Adoption Order. It simply means they are allowed to put forward evidence as to why the Adoption Order should not be made.#

Change in Circumstances

If there has been a change in circumstances, the Court may decide it needs further evidence before it can make a final decision on the Adoption Order. This may include assessments from independent experts, such as Psychologists or an Independent Social Worker to see whether birth parents could now meet the child’s needs.

A psychological assessment of either the child or the birth parents would look at what the child’s needs are and assess whether they’re being met by their adoptive parents and whether they could be met by birth parents.

It’s worth noting that birth parents are given the opportunity to address the issues during the care proceedings, for example, by accessing therapy or treatment.  The reasons why they weren’t able to effect the necessary changes then, will be looked at during this new assessment.

Even if they are assessed as being able to meet the needs of the child, the court will consider whether it’s in the child’s best interests to allow them the opportunity to meet them.

Final Hearing

Once all parties have sent their evidence to the Court, a hearing will be listed. This hearing will usually last for a few days depending on how many witnesses are required. The purpose of the hearing is to allow the Judge to make a final decision on the Adoption Order.

If expert assessments have been provided within the proceedings, then those experts could give verbal evidence at the hearing. The Judge will also require evidence from the Social Worker, birth parents, Children’s Guardian and sometimes the adoptive parents.

Adopter’s details are not included in court documents, and if they are required to attend a hearing, they will not come into direct contact with their birth parents. Special arrangements will be made for adopters to attend Court.

If you have any concerns in respect of birth parents opposing your adoption application, or you are currently going through adoption proceedings, please don’t hesitate to contact us at the Adoption Legal Centre.

Head to the home page to read the latest articles about adoption.

Issuing court proceedings

If either change is not seen within the Public Law Outline (PLO) process, or the risks to the child are felt to be too high, the local authority will issue care proceedings in court. These ultimately ask a Judge in a family court to make decisions about where the child should live.

An interim care order might be sought. This grants parental responsibility to the local authority and means that the child could be placed outside the parents’ care, even if the parents don’t agree. An interim care order might also be granted for the child to stay in the parent’s care, but with the local authority sharing parental responsibility.

Care proceedings cannot be issued until a child is born, but the PLO process carried out before a child’s birth, might decide the local authority will go to court immediately following its birth. This would be the case if there are worries about the baby’s immediate safety.

Care proceedings should take a maximum of 26 weeks (just over six months) to conclude. Where possible, the social worker will have done the assessments of parents and carers before this point, usually during the PLO process. This isn’t always possible in an emergency or if things change quickly.

Even if assessments have been done, the Judge will usually ask that these are updated and will again ask if any family members wish to be assessed to care for the child. The social worker keeps working with the family, offering support, and seeing the child wherever they are living.

Filing evidence

They then file their evidence and determine a care plan for the child based on that evidence. The care plan details where the local authority thinks the child should live, who they should see, and when.

Birth parents will file their evidence in response to the local authority’s case. This is their opportunity to answer what’s being said about them and say whether they think it’s correct or not. They may completely disagree with the local authority’s case which means live evidence is likely to be needed so that the Judge can determine where the truth lies.

It may be that they agree with the local authority’s evidence, but they disagree with the plan as to where the child should live.

The Children’s Guardian from CAFCASS, a social worker from this independent organisation, represents the child in family court proceedings. They are independent and separate from the local authority. They will form a view based on their enquiries in response to the local authority’s recommendations about what is best for the child. The Guardian will report this back to the court.

An Issues Resolution Hearing (IRH) is scheduled to try to resolve any differing views between the local authority, the parents, other people involved (for example, relatives), and the Guardian. The Judge can agree on the final care plan at this stage if everyone agrees. If not, a final hearing is scheduled.

Final hearing

A final hearing can last a few days, but its length will depend on what’s being contested. The social worker, parents, and Guardian will give evidence and can be asked questions by the legal representatives of each person. Other witnesses may also be called, like contact workers, specialists who have provided reports, or any other previous workers. At the end of all the evidence, the Judge will give a judgment based on what they have read and heard about the case.

If the plan is adoption, the local authority will have sought a care order and a placement order. In those circumstances, the care plan will detail any consideration of post-adoption contact with the birth family and matching plans. For an older child, it might include how long an adoptive placement would be sought before an alternative plan is considered. The alternative plan may be long-term foster care.

Once a placement order is granted, the birth parents’ parental responsibility end, and the local authority can place a child in an adoptive placement. The order can be granted without the parent’s consent. Because of this, the judge must feel that there is no other option.

If you require help and advice about local authority concerns about the care of your child, the Law Society can help you find a solicitor in your area.