A brief guide to adoption legislation and standards in the UK.
Introduction
Adoption is a legal procedure in which all parental rights and responsibilities for the child are permanently transferred by the court from the birth parents and/or the local authority to the adoptive parents. The child legally becomes part of the adoptive family. It is illegal to adopt a child without being assessed and approved by a UK adoption agency, unless the child is a close relative.
An adoption order, which makes adoption legal, cannot be applied for until a child has lived with his or her adoptive parents, continuously, for at least ten weeks in England and Wales, and cannot be made by the court for 13 weeks in Northern Ireland and Scotland – though, in reality, most families have the order granted around nine to 12 months after the child moves in. These time limits are for children placed for adoption by agencies, rather than, for example, long-term foster carers who later decide to apply to adopt the child they are fostering.
Once an adoption order has been granted by the court, the adoptive parents are fully legally responsible for the child. This means they are the child’s legal parents and make all decisions about the child’s future. Adoption is permanent and a new birth certificate for the child is issued from the Adopted Children Register.
In most cases in England and Wales, unless a child’s birth parents agree to their child being adopted, the local authority caring for them must apply for a placement order from the court to allow the adoption to proceed. Under the Adoption and Children Act 2002, freeing orders in England and Wales were replaced by placement orders in December 2005. However, there are still some children in England and Wales already freed for adoption or subject to freeing orders that are waiting for adoptive families. In instances where the child is not subject of a placement or freeing order and the birth parents do not consent to adoption, the prospective adoptive parents may need to seek legal advice.
In Scotland, since the implementation of the Adoption and Children (Scotland) Act 2007 in September 2009, a legal order that can be applied for by the local authority to secure the child’s future is called a permanence order. This is a flexible order that can take two main forms. In every order, there is one mandatory provision – a right and a responsibility that the local authority must assume. These are: the right to decide where the child lives and the responsibility to provide guidance. Beyond that, where permanent fostering is the plan, the remainder of the rights and responsibilities for the child may be shared between the local authority, the foster carers and, if appropriate, the birth parents. In these cases, the permanence order is regarded as a ‘destination order’ to underpin a secure arrangement for the child throughout their childhood. This does not prevent the local authority going back to court to seek authority for adoption if that proves feasible and right for the child.
Where adoption is the clear goal, the local authority may additionally ask the court for the authority to place the child for adoption. In granting this, the court would normally remove all responsibilities and rights from the birth parents, and these would be held by the local authority until the completion of the adoption. You may therefore see Scottish children where the legal status is either ‘permanence order’ or ‘permanence order with authority for adoption’.
In Northern Ireland, freeing orders are still used although they will be changed in due course. Local authorities or boards usually apply for these before an adoption but they do not have to and some do not apply. When the child is not the subject of a freeing order and the birth parents do not consent to adoption, the prospective adoptive parents may need to seek legal advice.
Adoption legislation
Over the last few years, changes to adoption legislation have been implemented in England and Wales, and adoption legislation in Northern Ireland and Scotland has been reviewed. All these changes are designed to improve and modernise the adoption process to ensure it meets the needs of children, and minimise unnecessary delays for the child being placed with an adoptive family.
England and Wales – The Adoption and Children Act 2002 (England and Wales) was fully implemented on 30 December 2005. The key changes include allowing unmarried couples to adopt a child jointly, including same-sex couples; providing greater adoption support for all involved; and introducing a new permanence order called special guardianship to provide greater legal security and permanence for children for whom adoption is not the best option. The Act also introduced legislation related to intercountry adoption.
Scotland – The Adoption and Children Act (Scotland) 2007 covers current adoption legislation in Scotland. It replaced the The Adoption (Scotland) Act 1978 in 2008. Changes included allowing unmarried and same-sex couples to adopt children jointly; a new order, the permanence order; and provision for greater adoption support.
Northern Ireland – The current legislation covering adoption in Northern Ireland is the Adoption (Northern Ireland) Order 1987. The ‘Adopting the Future’ consultation was launched in June 2006 following a two-year review of the adoption process in Northern Ireland. Points that were consulted on included reducing delays in the adoption process; allowing civil partners and unmarried couples to adopt; introducing special guardianship; and providing greater adoption support.
The Department of Health, Social Services and Public Safety (DHSSPS) have published the outcomes of the consultation and are currently looking at implementing the ‘key actions’ identified, and working on drafting new legislation to improve adoption infrastructure. Read the report summary and analysis (pdf).
A ten-year strategy for all children and young people in Northern Ireland was launched in 2006. Plans for adoption and fostering include ensuring permanent families are found for more children, and increasing the number of foster carers from 300 to 1500 by 2008.
National standards
Standards are in place in England, Wales and Scotland about the level of services that adoption agencies must provide for all those involved in the adoption process, including support services for birth parents.
England and Wales – In England and Wales the National Minimum Standards for local authority and voluntary adoption agencies set out a range of standards which adoption agencies should meet when providing a service.
The standards include:
- The child’s welfare, safety and needs will be at the centre of the adoption process.
- People who are interested in becoming adoptive parents will be welcomed without prejudice, responded to promptly and given clear information about recruitment, assessment and approval. They will be treated fairly, openly and with respect throughout the adoption process.
- Children will be matched with approved adopters who can offer them a stable and permanent home and help and support will be provided to achieve a successful and lasting placement.
Scotland – In Scotland, the National Care Standards: Adoption Agencies (2005) cover all adoption agencies, that is local authorities and voluntary services. They cover services for children and young people, adults who were adopted as children, birth families, prospective adoptive parents and adoptive parents.
Fees
There is no charge for being assessed and approved for adoption by a UK adoption agency, unless you are being assessed to adopt a child from abroad when you will usually have to pay all related costs yourself.
When an adoption application is made to court, there is a one-off court fee. This is currently £140 in England and Wales. This fee applies to sibling groups too, however large, though you will have to fill in separate application forms for each child. The fee is £79 in Northern Ireland, and £60 in Scotland, but this is per child if you are adopting a sibling group.
The local authority looking after the child may cover some, or all, of any additional legal fees or court costs. This will all be clarified and agreed upon – in terms of who will meet the costs – quite early on in the process, and certainly before the hearing.
Entitlements
For children placed or planned to be placed for adoption after 1 April 2007, if you are eligible, you are entitled to up to 39 weeks statutory adoption pay (SAP) from your employer. SAP is paid at 90% of your average weekly earnings or £102.80 per week (whichever is less). You are also entitled to a total of 52 weeks of adoption leave, but only the first 26 weeks will be paid.
If you are the ‘supporting’ partner of someone adopting a child on their own, you are entitled to statutory paternity pay (SPP) paid at the rate above. You are also entitled to paternity leave of one or two whole weeks taken anytime up to 56 days after the child is placed. If you are a couple adopting together, the ‘main’ parent can take SAP and the supporting parent can take SPP, regardless of gender.
You may also be entitled to 13 weeks unpaid leave which can be taken up to five years after your child is placed. Parents of disabled children may take 18 weeks unpaid leave until their child is 18. To be eligible, you generally have to have one year’s continuous service with your current employer. Special rules apply for parents of children placed before 14 December 1999.
If you have parental responsibility for children aged up to six years (or 18 years for disabled children) you are entitled to request flexible working patterns. Your employer must give your request serious consideration, and may only turn you down on set business grounds. For more information on adoption leave and pay speak to your agency, visit Direct Gov or try their interactive tool to work out your rights.
Notes:
- These entitlements only apply if you have been at your current place of employment for 26 continuous weeks or more.
- You need to inform your employer within seven days of being matched with a child, and provide them with a copy of the matching certificate or other documentation confirming the adoption placement.
- These entitlements do not normally apply to step-parents adopting a step-child.
- If you are not entitled to adoption pay or leave from your employer your adoption agency may consider providing you with some financial support, although this would be means-tested.
