There are a number of circumstances that can call into question the plan for adoption for a child. In the first of a two-part series solicitor Emily Boardman sets out the legal challenges available to birth parents in England and Wales that can delay, or in rare circumstances, disrupt the plan to place a child with prospective adoptive parents.
As a prospective adopter it is undoubtedly a scary prospect that something could happen to disrupt the planned placement of a child after matching has taken place. We also know that as adoption is a ‘last resort’ for children every application made by birth parents has to be dealt with properly by the courts and as swiftly as possible in order to provide permanence for the child.
Placement Order
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.
Revoking a Placement Order
Leave application
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. We know this from our own practice and from guidance given by The Court of Appeal in 2020.
This guidance related to the case of a birth mother who was granted leave to apply to revoke a Placement Order but did not succeed in revoking it. She appealed to the Court of Appeal and they refused her appeal. They noted that her change was ‘transformational’ but did not grant her appeal as they agreed that the children could not return to her as the risk of that return failing and them having to move again was too great.
It is relatively easy to show a change of circumstance. 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 parent’s 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.
Application to revoke a 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 to 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 are generally failing 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.
In the 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 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.
Appeal
If leave is refused or the main application is refused, a birth parent has a right to seek to appeal that decision. They have 21 days within which to make the application to appeal.
It is our 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 are made as quickly as possible. (Without wanting to bemoan the state of the family court at the moment, ‘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?
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 significant. 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
It is our 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 to the children and their own families that they have done everything they could to do that. Where they have really changed and the child’s welfare demands it, the children should return to their birth families, but this is really very rare. If the processes work as they should, these applications are usually 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 taking place.
Emily Boardman is a family solicitor, founding partner at Boardman, Hawkins & Osborne LLP. She specialises in representing birth families in complex care proceedings and prospective adopters in adoption applications. For more information visit bholegal.co.uk
