Friday, 8 February 2013
statutory guidance on adoption
The Adoption and Children Act 2002
Adoption
Statutory Guidance
First revision: February 2011i
CONTENTS
Foreword 1
Introduction 5
1 Adoption agency arrangements 15
Agency policies and procedures 15
Medical adviser 16
Adoption reports 18
Adoption panels 19
Transitional arrangements – child should be placed for adoption 20
Adoption and Permanence panels 21
Frequency of panel meetings 22
The central list 22
Agency adviser to the panel 24
Joint adoption panels 24
Performance 24
Adoption panel fees 25
Constituting an adoption panel 25
Notification of the panel’s recommendation 27
Agency decision-maker 27
The Independent Review Mechanism 30
2 Considering and deciding whether a child should be
placed for adoption 35
Introduction 35
Planning for permanence 36
Concurrent planning 36
Considering adoption for a child 37
The child’s adoption case record 39
Counselling and informing the child 39
Counselling and informing the child’s family and others 40
Counselling fathers without parental responsibility 43
Relinquishment for adoption of children aged less than six weeks 46
Obtaining information about the child and the child’s family 47
Health assessment 47
Access to health information 48
Child’s permanence report 49
Referral to the adoption panel or decision-maker 51
The adoption panel 53
Agency decision 53ii
Adoption register 54
Consent to placement 54
‘Consent’ where the child is under six weeks 57
3 Preparing, assessing and approving prospective
adopters 61
Timescales 61
Eligibility criteria 62
Establishing Domicile and Habitual Residence Status 62
Recruitment 63
Informing and counselling 64
Considering applications and the prospective adopter’s
case record 69
Police checks 69
Preparation, other checks and assessment 71
Prospective adopter’s report 72
Health issues 73
References 73
Second opinion visits 74
Report to the adoption panel 74
Full prospective adopter’s report 74
Brief prospective adopter’s report 75
The adoption panel 76
Agency decision 77
Adoption Register 78
Agency Decision – unsuitable to adopt 78
Representation 80
Agency decision following representations
or review by the review panel 80
Review of approval 80
4 Matching and proposing a placement 83
Timescales 83
Introduction 83
Matching considerations 84
Ethnicity and culture of children and prospective adopters 85
Single prospective adopters 86
Older children and prospective adopters 86
Siblings 86
Placing a child with relatives 87
Health 87
Smoking 88iii
Adoption agencies, consortia and Adoption Register 88
Proposing a placement 89
The adoption panel 92
The agency decision 92
Adoption and paternity leave and pay 93
5 Placement and Reviews 95
Placement by Agency 95
Modification of the Children Act 1989 97
Parental Responsibility 100
Changing the child’s name 102
Visits 102
Out of area placements 103
Placement breakdown 104
Before the adoption order 104
Post the adoption order 104
Reviews 104
Frequency of reviews 104
Conduct of reviews 105
Independent Reviewing Officers 107
Withdrawal of consent or application for revocation of
placement order 107
Life Story Book 108
Later Life Letter 109
6 Safeguarding and permitting access to adoption records 111
Storing records 111
Preserving records 113
Confidentiality 113
Access and disclosure 114
Obligatory access to or disclosure from records 114
Discretionary access to and disclosure from records 118
Records of disclosure 118
Transfer of records 119
7 Contact 121
Contact 121
Variation from terms of contact order 124
Contact after adoption 125
Summary of contact requirements, chapters 2-5, 8 and 9 126iv
8 Adoption agency and local authority responsibilities
in court proceedings 131
Introduction 131
Court proceedings 131
Placement Order Applications 131
Combined care and placement order applications 134
Revocation of placement order 135
Adoption applications 137
Applications by parents for leave to oppose adoption order 140
Contact applications 140
Non-agency adoptions 142
Notice of intention to apply 142
Minimum period for child to have home with applicants 144
Protection from removal of child 144
Applications by local authority foster carers 145
Partner applications 146
Applications by same-sex couples following IVF or
Surrogacy 149
Applications by relatives 150
Applications by private foster carers 151
Reports to the Court 152
Placement order applications 152
Agency adoption applications 154
Non- agency adoption applications 160
Court Fees 165
9 Adoption Support Services 167
Provision of adoption support services 168
People to whom adoption support services must be extended 169
Securing the provision of services 169
Adoption Support Services Adviser 171
Cross-boundary placements and services for persons outside
the area 173
Provision of financial support 176
Remuneration for former foster parents 177v
Payment of financial support 177
Assessment for financial support 178
Review of financial support paid periodically 180
Assessment for adoption support services 181
Procedure for assessment 181
Support services plan 182
Notice of outcome of assessment 183
Notification of decision 185
Reviews of support services 186
Urgent cases 187
Notices 187
Recovery of expenses 187
10 Intermediary services and access to information in
pre-commencement adoptions (pre 30 December 2005) 189
Introduction 189
Confidentiality and access to information 191
Intermediary services 192
Who may provide services? 193
Accepting applications under ISR 5 193
No obligation to proceed if not appropriate 194
Consent of subject to disclosure of identifying information 197
Veto by an adopted person 200
Provision of background information where consent refused etc 202
Counselling 203
Procedure on receipt of application 203
Contacting the appropriate adoption agency 203
Obtaining information from the registrar general 206
Authorised disclosures 206
Offence 207
Fees 208
11 Access to information in post-commencement
Adoptions (post 30 December 2005) 209
The Legal Framework 209
Adopted persons – legal rights 209
Adoption agency responsible for keeping information 210
Information to be kept about a person’s adoption 211
Storage and manner of keeping of section 56 information 213
Preservation of section 56 information 213
Transfer of section 56 information 214
Disclosure for purposes of agency’s functions or for research 214vi
Disclosure required for purposes of inquiries, inspection etc 216
Requirements relating to disclosure 216
Agreements for the disclosure of protected information 217
Manner of application for disclosing protected information 218
Duties of agency on receipt of application and record of views 220
Disclosing protected information about adults 220
Disclosing protected information about children 222
Independent review 223
Counselling 224
Disclosure of information for the purposes of counselling 224
Seeking information from the Registrar General 225
Disclosure of information regarding the appropriate
adoption agency and from the Adoption Contact Register 225
Offence 226
Fees charged by adoption agencies 226
12 Post adoption counselling and Adopted Children
and Adoption Contact Registers 227
Counselling 227
The Adopted Children and the Adoption Contact Registers 229
Annex A: Offences 231vii1
Foreword
We all know that children thrive and are happiest when they live as part of a stable
family. When it is not possible for a looked after child to return to live with their birth
parents, even with support, they need an alternative that is right for them.
One of the most successful ways in which those children can achieve stability, love
and support is through adoption. We know that in the vast majority of cases adoption
works. Education and health outcomes are as good as for children growing up with
their birth parents.
It is therefore very disappointing that fewer children for whom adoption is the right
plan are currently being found new families. I fear that after improvement following
the 2002 Adoption and Children Act we are losing momentum.
I want to raise the profile of adoption and to help remove obstacles, whether real or
perceived, so that children who would benefit from an adoptive family can
experience a happier childhood and loving family. That is why I have set up a
Ministerial Advisory Group on Adoption to provide expert advice on a range of
practical proposals to improve and share good practice.
I have also written to directors of children’s services and lead members to
emphasise the importance of adoption and to ask them to do everything possible to
increase the number of children appropriately placed for adoption, and to improve
the speed with which decisions are made. I am not talking about the old “numbers
game”, but reassessing whether adoption would be right for children who they may
have overlooked in the past, such as children who have been in care for a long time,
older children and children with disabilities.
I want local authorities to see adoption as one of the possible permanence options
for many more children as soon as it is decided that a child will probably not return to
their birth parents. And I want them to look hard at how they deal with people who
enquire about adoption. We cannot afford to lose potentially suitable parents simply
because they are not needed by the particular agency they approach. These people
should be directed instead to another agency, so that across the country we can
increase the pool of prospective adopters. It is also essential that agencies do not
reject people before their suitability to adopt is assessed because they are, for
example, single, older or not of the same ethnicity as the children needing adoptive
families.
I want to move away from the situation where children are kept in care for a long
time simply to find a family of the same ethnicity when a suitable family of a different
ethnic background is available who can meet their other needs. To say the obvious,
parents from one particular background can be loving, sensitive and successful 2
adoptive parents for children from very different backgrounds and that must be our
primary consideration. Local authorities must consider all of the child’s needs and
not place the issue of ethnicity above everything else, though this must be taken into
account. I know that children tend to do well when placed with a family who shares
their ethnic or cultural background, but I know also that delay can have a very
detrimental effect. It reduces the child’s chances of finding a family and has negative
consequences on their future development. If there can be an ethnic match that’s
an advantage, possibly a very significant one. But, it should never be a “dealbreaker”.
There are many dedicated and effective professionals working in the adoption
sector, and much good practice. I want to see all local authorities delivering to the
standard of the best, with good practice shared widely, to help benefit more children.
This should include making full and effective use of the voluntary sector, adoption
consortia and the Adoption Register. Many voluntary adoption agencies specialise,
and are successful, in finding families for children who are perceived as difficult to
place. These can include black and minority ethnic children, older children, children
in sibling groups and those with disabilities. And there is clear evidence that there is
little difference in the cost of placing a child with the local authority’s own adopters
and adopters from a voluntary adoption agency. In many cases, it will yield savings
for the local authority and free up a fostering placement, whilst providing an
appropriate and timely permanent placement for the child.
For the large majority of children their adoption is a success, but I recognise that for
some children this is not the case and they return to care. It is vital that everything
possible is done to increase the likelihood of adoptions succeeding. Local
authorities need to consider carefully the support children and families need.
Finally, I want adoption agencies and adoption support agencies to continue
providing a good service to adopted adults who want to find out more about their
past, and to provide a sympathetic intermediary service to them and their birth
families.
I recognise that improving the adoption service goes beyond the work of adoption
agencies. The Government is currently conducting a review of the family justice
system to examine its effectiveness and see what improvements need to be made.
We have also asked Professor Eileen Munroe to look at the whole issue of child
protection, with a focus on strengthening the social work profession by enabling
them to make well-informed judgments. These may have implications for adoption in
the future.3
I am also pleased to be able to publish updated statutory guidance that reflects the
findings of the Adoption Research Initiative and advice from the courts. The
guidance is an important element in our programme of work to support adoption
agencies continually to improve services for adopted children and children who
would benefit from adoption.
Tim Loughton, MP
Parliamentary Under-Secretary of State for Children
22 February 20114Introduction
5
Introduction
1. The importance of family life to a child cannot be overstated. It is the
fundamental right of every child to belong to a family; this principle underpins the 1989
United Nations Convention on the Rights of the Child which the United Kingdom
ratified in 1991. Where children cannot live with their birth parents for whatever
reason, society has a duty to provide them with a stable, safe and loving alternative
family.
2. It is important to remember that delay can have a significant effect on
achieving permanence for children. That is why the legislation makes clear that delay
in coming to decisions, and in the subsequent stages of the process, is likely to
prejudice the child’s welfare. Research
1
shows that delay in the adoption process
can have negative consequences for the child’s psychosocial outcomes and reduces
the likelihood of finding an adoptive family.
3. Improving the adoption service means, as part of this, improving the family
justice system. The Government has agreed to continue the Family Justice Review
to examine the effectiveness of the family justice system. It has also asked the
Munro review to look at the whole issue of safeguarding, with a focus on
strengthening the social work profession, to allow them to make well-informed
judgments.
4. This refreshed and improved statutory guidance is another important element
in the Government’s programme of reform to support adoption agencies to remove
barriers to adoption and reduce delay, and continually to improve their adoption
services
Making the adoption process work well
5. We know how successful adoptions can be. Experience and research has
made clear the factors that make the adoption process work well for the child, birth
parents and adoptive parents:
actively promote adoption. The local authorities that are most successful in
finding adoptive families for looked after children will generally be those
with a very clear care planning process that always considers adoption as
a possible permanence option and not an option of last resort;
encouraging people to come forward to adopt. Prospective adopters are
important and they must feel valued, respected and supported;
1
Selwyn, J., Sturgess, W., Quinton, D., and Baxter, K. (2006) Costs and outcomes of non-infant
adoptions, London BAAF.The Adoption and Children Act 2002
6
avoiding delay in the adoption process, including starting the family finding
process as soon as adoption becomes the plan following a statutory
review. Any delay which prevents the needs of the child from being met is
unacceptable. Legislation makes clear that delays in coming to a decision,
and in the subsequent stages of the adoption process, are likely to
prejudice the child’s welfare. Chapters 2-5 and 8 of this guidance are
particularly relevant;
taking the fullest account of the views and wishes of the child. This is
covered in detail in chapter 2;
placing a child with a prospective adopter who can meet most or all of the
child’s identified needs. Any practice that effectively stops a child from
being adopted because the child and prospective adopter do not share the
same racial or cultural background is not child-centred and is
unacceptable;
providing an effective adoption support service;
effective collaboration with the local authority’s other social services and
with voluntary adoption agencies so that services may be given in a coordinated manner. This avoids delay and duplication;
developing and sustaining constructive links between adoption and looked
after children’s teams and the courts in order to minimise delays in court
proceedings;
a practical and balanced understanding of the circumstances in which
special guardianship may be more appropriate than adoption and how to
manage the different processes and legal requirements.
The Legislative Framework
6. The Adoption and Children Act 2002 (the Act) is the principal piece of
legislation governing adoption in England and Wales. It has been in force since 30
December 2005, and has been amended by other legislation since 2002. While the
Children Act 1989 sets the general framework for the support of children in need and
planning for their future if they become looked after, the Act provides the framework
for implementing plans for adoption. Much of the detail of the adoption system is set
out in regulations; a list is on the National Archives Legislation website and the
Department for Education website. Introduction
7
Needs and welfare of the child
7. Section 1 of the Act places the needs and welfare of the child at the centre of
the adoption process. It makes the welfare of the child the paramount consideration
for a court or adoption agency in all decisions relating to adoption, including whether
to dispense with a parent's consent to adoption. It provides under section 1(4) a
welfare checklist that must be applied by a court or adoption agency.
8. Section 1(2) sets out the general and overriding duty on a court or adoption
agency: that in coming to any decision relating to the adoption of a child the
paramount consideration should be the welfare of the child, throughout their life.
Adoption agencies must be very aware of where delays may occur and ensure that
their own internal procedures do not inadvertently contribute to this. A day here and
a day there may not mean, in themselves, very much in terms of delay, but added
together the time lost can be substantial. It must be remembered that time is not on
the side of the child.
9. It is therefore essential that an adoption agency, insofar as is reasonably
practicable, involves and consults the child at all stages of the adoption process,
ascertaining and taking into account their views in a way which is sensitive to, and
consistent with, their age and understanding. Section 1(4)(a) of the Act places a duty
on a court or adoption agency to have regard to the child's ascertainable wishes and
feelings about adoption (considered in the light of the child's age and understanding).
The provision of an adoption service
10. Section 3 of the Act places a duty on local authorities to maintain an adoption
service within their area, and sets out the minimum facilities that must be made
available in the provision of the service. The local authority is not obliged to provide
all the facilities itself but may make use of services provided by voluntary adoption
agencies and adoption support agencies, or other suitable service providers who are
permitted to provide the service in question.
11. This guidance, particularly in chapters 1 and 9, sets out some of the matters
that a local authority will need to consider in planning its strategy for delivering an
adoption service. The local authority’s staffing and budgetary plans will need to take
account of the duties imposed on it by the legislation, regulations, statutory guidance
and the National Minimum Standards for Adoption.The Adoption and Children Act 2002
8
Offences
12. As part of the framework for safeguarding children in the context of adoption,
the Act restricts who can lawfully arrange adoptions, and advertise about adoption. It
also imposes restrictions on the preparation of adoption reports, provides safeguards
to the confidentiality of adoption records, prohibits certain payments or rewards in
connection with adoption, and restricts the bringing of children into the UK and taking
of children out of the UK for adoption. It makes provision for the protection of
adoptive placements from interruption and the recovery of children unlawfully
removed from placement. The Act creates a number of offences in connection with
this framework, particulars of which are set out in Annex A. It is important that staff
working in adoption agencies, adoption support agencies and children’s services
departments are aware of the procedures to be followed if they become aware that
an offence may have been committed or is likely to be committed.
Statutory guidance
13. This statutory guidance explains the content of regulations made under the
Act, and the duties and responsibilities that they place on adoption agencies. It is
issued under section 7 of the Local Authority Social Services Act 1970. This
requires local authorities in their social services functions to act under the general
guidance of the Secretary of State. As such, the document does not have the full
force of statute, but should be complied with unless local circumstances indicate
exceptional reasons which justify a variation. The guidance applies to England only
and should be read by everyone involved in the adoption of children - especially
children’s social workers - and those who work with adopted adults and birth
families.
Changes to the previous guidance
14. Since the original guidance was published in 2005, there have been
substantial legislative changes around adoption panels, changes in case law and
the completion of the Adoption Research Initiative. This revised guidance benefits
from the knowledge and expertise of both Deborah Cullen, who was the principal
drafter of this revised guidance, and a wide range of stakeholders representing local
authorities, voluntary adoptions agencies, adoption support agencies, the courts,
CAFCASS and others. We are very grateful for the time and energy they have given
to making this guidance as accurate and helpful as possible to practitioners who will
use it on a regular basis. Introduction
9
15. The main changes are:
a reorganisation of the guidance. Most of the information from the
annexes have been incorporated into the main chapters, and the guidance
on domestic and intercountry adoption has been separated into two
volumes. The intercountry adoption guidance is being revised and will be
issued later. In the meantime, the 2005 statutory guidance on intercountry
adoption remains in force;
a new chapter on court proceedings (chapter 8);
new guidance relating to adoption panels;
updated guidance to take account of recent case law and key messages
from the Adoption Research Initiative. We have incorporated current
circulars into this guidance so that all statutory adoption guidance is in one
place;
a summary of offences and penalties;
there is no longer guidance on adoption pay and leave, social security
benefits and tax credits, but instead hyperlinks to relevant websites e.g.
Direct Gov.
Coverage of the statutory guidance
16. Chapter 1 describes the structures needed by adoption agencies in terms of
the establishment of an adoption panel, the appointment of an adviser to the panel
and a medical adviser to the agency, who may write adoption reports, the
responsibilities of the agency’s designated decision- maker and how they should
approach a case. It also explains the responsibilities of the adoption agency in
dealing with the independent review mechanism (IRM).
17. Chapters 2–5 of the guidance broadly follows the path of a looked after child
through to an adoptive placement.
18. Chapter 2 explains the duties of an adoption agency where the agency is
considering adoption for a child, including babies relinquished for adoption. It makes
clear the importance of keeping to the court timetable so that there is no delay for the
child. This chapter also includes guidance around concurrent planning.
19. Chapter 3 explains the duties of an adoption agency towards prospective
adopters, both before and after approval, but before the placement of a child with The Adoption and Children Act 2002
10
them. It requires an adoption agency to direct potential adopters to other adoption
agencies when they are not needed by that agency, so that nationally we can
increase the number of prospective adopters. This chapter requires adoption
agencies to ensure that their recruitment strategies do not overlook potential
adopters who are older or when their ethnicity and culture is not shared with those of
the children waiting to be placed with adoptive parents.
20. Chapter 4 explains the duties of an adoption agency when it proposes to
place a child with an adoptive family. It includes guidance on matching
arrangements, the use of the Adoption Register, and the importance of minimising
delay. It reminds agencies that a child’s ethnicity is not the primary consideration in
deciding the type of adoptive family for the child; adoption agencies must give due
consideration to the child’s religious persuasion, racial origin and cultural and
linguistic background, but should not delay placing a child if an otherwise suitable
adoptive family is available.
21. Chapter 5 explains the duties of an adoption agency where it places a child
for adoption; when it reviews the child’s case; where consent to placement is
withdrawn; where a placement is terminated; and in preparing the life story book and
later life letter.
22. The remaining chapters cover a range of issues that may arise during and
after the adoption process.
23. Chapter 6 contains guidance on the storage of and access to adoption
records both before and after adoption, but further detailed guidance on access to
adoption records after adoption is contained in chapter 11.
24. Chapter 7 contains guidance on contact issues.
25. Chapter 8 provides guidance on court proceedings for placement and
adoption orders, and on the writing of court reports for adoption cases, including
non-agency adoptions.
26. Chapter 9 sets out the duties of local authorities for the provision of adoption
support services, including assessment for adoption support services and financial
support, and the making of an adoption support plan.
27. Chapter 10 explains the regulations with regard to access to information and
intermediary services in respect of adoptions which took place before 30 December
2005, when the Act came into force.Introduction
11
28. Chapter 11 contains guidance on the provisions regarding the management
and disclosure of adoption information in respect of adoptions where the order was
made on or after 30 December 2005.
29. Chapter 12 explains the Registrar General’s role in respect of the Adopted
Children and Adoption Contact Registers, and provides guidance on agencies’ duties
in respect of the provision of counselling for those seeking intermediary services or
access to information post adoption.
30. Annex A lists offences and penalties under the Act and regulations.
Practice guidance
31. Practice guidance and tools are available on a range of topics relating to
adoption. Although not under a statutory duty to follow practice guidance, we
recommend that the materials be used to help adoption agencies and adoption
support agencies to improve their practice in adoption.
Preparing and assessing prospective adopters (2006)
This practice guidance is for practitioners assessing the suitability of
prospective adopters.
Practice guidance on Assessing the Support Needs of Adoptive Families
(2008)
This practice guidance is for practitioners who need to assess the support
needs of people affected by adoption.
Adoption: Access to information and intermediary services (2008)
This practice guidance is for practitioners working with adopted adults and
birth relatives who wish to find out about an adoption, and who may wish to
trace and establish contact with their birth relatives through the provision of
intermediary services.The Adoption and Children Act 2002
12
Adoption Research Initiative (ARi)
32. Over the years, there has been a wealth of research conducted on adoption.
In 2004, the Department for Education and Skills commissioned further research
through the Adoption Research Initiative. The research evaluates the
implementation of the Act and its impact on outcomes for children. The seven
research studies, outlined below, focused on permanence planning and decisionmaking, linking and matching, adoption support and adoption costs.
The characteristics, outcomes and meanings of four types of permanent placement
This study compared four types of permanent placement for looked-after children:
carer adoption, stranger adoption, long-term foster care and Special Guardianship.
It also investigated the outcome of placements for children for these various types of
placements, except those for Special Guardianship. The research provided new
data on which children, in which circumstances, may benefit from each type of
placement.
Protecting and promoting the well-being of very young children.
This study explored whether very young children with similar needs or at similar risk
of significant harm were looked after by some authorities, but remained at home with
family support in others. It examined the reasons for variations found.
An investigation of linking and matching in adoption
This study mapped adoption agencies’ policies and approaches to linking and
matching children to prospective adopters. It described and classified agencies’
current approaches and compared their relative effectiveness, outcomes and costs.
In addition, the study identified the indicators of a good match and suggested ways
in which matching can be improved
Pathways to permanence for children of black, Asian and mixed ethnicity
This was a comparative study of planning and decision-making by professionals as it
affects the progress of black and minority ethnic (BME) children, and non-BME
children, towards permanent placements. The outcomes of placements for children
were compared. Introduction
13
Researching adoption support
This study mapped, costed and evaluated services that support face-to-face contact
after adoption, and those that support the birth parents and families of adopted
children. The study explored the possible links between outcomes for service users,
and service provision, service costs and case factors.
Enhancing adoptive parenting
This study explored which programme was more effective at enhancing adoptive
parenting - either a cognitive behavioural parenting programme or an educational
programme about parenting special needs children when added to the standard
service.
Adoption and the interagency fee
This study explored the costs for local authorities and voluntary adoption agencies of
recruiting and preparing prospective adopters, and placing children in adoptive
families. It also looked at the costs of providing adoption support and the overheads
for adoption agencies.
Cancellation of statutory guidance and circulars
33. The following statutory guidance and circulars are now cancelled:
Adoption and Children Act 2002 statutory adoption guidance (in respect of
domestic adoption) published by the Department of Health in 2005
LAC(2004)27: The Adoption Register for England And Wales: New
Arrangements - dated 22 November 2004
LAC(98)20: Achieving the Right Balance – dated 28 August 1998
CI(99)6: Care Proceedings: Amendment to LAC(98)20 – dated 25 June 1999The Adoption and Children Act 2002
14Chapter 1
15
Chapter 1: Adoption agency arrangements
This part of the guidance explains the duties of adoption agencies for
operating its adoption panels and other procedural requirements.
Agency policies and procedures
1. The adoption agency is required by regulation 7 of the Adoption Agencies
Regulations 2005 (AAR) to prepare and implement a written policy and procedural
instructions which govern the agency’s and the adoption panel’s functions. It is
important that these accurately reflect the agency’s statement of purpose. In
preparing these instructions, the agency is to consult individuals on the central list
and, in respect of arrangements for access to, and disclosure of, health information,
the agency’s medical adviser as required by AAR 8.4. The agency may choose the
individuals on the central list it wishes to consult. The agency is also required to
keep its policies and procedures under review and to revise them, where
appropriate.
2. The agency should provide its staff with opportunities to contribute to the
drafting of its written policy and procedures. It should ensure that its staff and the
adoption panel are provided with the policy and procedures documents that govern
their responsibilities.
3. It is recommended that the policy and procedures document include:
details of recruitment, induction, training and performance review of those
individuals on the central list;
a signed agreement which sets out the mutual commitments of those
individuals on the central list and the agency;
arrangements for informing the prospective adopter, the birth parents and,
where appropriate, the child, of the panel’s recommendations;
details of how a panel will monitor and report on its work to the agency and
others;
arrangements and timescales for passing the panel’s recommendation and
minutes to the decision maker.
4. Parents, prospective adopters and the child, where the agency considers the
child is of sufficient age and understanding, should be offered a copy of the agency’s
statement of purpose. All children for whom a local authority has identified adoption The Adoption and Children Act 2002
16
as the plan should be provided with a copy of the children’s guide to adoption. Local
authorities and those voluntary adoption agencies (VAAs) which provide adoption
support services to children will also need to provide a copy of the children’s guide to
those services to any child of sufficient age and understanding.
5. There will need to be a process in place to enable users to make complaints.
In the case of VAAs the requirements are governed by regulations 11 and 12 of the
Voluntary Adoption Agencies and Adoption Agencies (Miscellaneous Amendments)
Regulations and the National Minimum Standards for Adoption (“NMS”). In the case
of local authorities their usual complaints procedures will apply to their adoption
functions also, and regulation 17 of the Local Authority Adoption Service (England)
Regulations 2003 requires records of complaints to be kept.
Medical adviser: AAR 8
6. The agency is required to appoint at least one registered medical practitioner
to be the agency’s medical adviser. AAR 8 also stipulates that the medical adviser is
to be consulted about the arrangements for accessing and disclosing health
information, as required or permitted by the AAR.
7. The medical adviser should be consulted where the agency:
arranges for the child to be examined and obtains a report or reports on
the child’s health (AAR 15 and AAR Part 2 of Schedule 1);
arranges for health information to be obtained about the child’s parents
and siblings (AAR 16 and AAR Part 4 of Schedule 1);
prepares the child’s permanence report which is to include a
comprehensive summary written by the medical adviser on the child’s
health (AAR 17);
obtains a report about the health of the prospective adopter (AAR 25 and
AAR Part 2 of Schedule 4);
prepares the prospective adopter’s report for the adoption panel, which is
to include a comprehensive summary written by the medical adviser on the
prospective adopter’s health (AAR 25);
prepares the adoption placement report for an adoption panel (AAR 31);
prepares a report to the court where there has been an application for a
placement order, as the agency is required to provide a summary written
by the medical adviser on the health of the child;Chapter 1
17
reviews the child’s case, including reviewing the arrangements for
assessing and meeting the child’s health care needs (AAR 36);
prepares a report to the court where there has been an application for an
adoption order or section 84 order, as the agency is required to provide
summaries written by the medical adviser on the health of the child and
the prospective adopter.
Where a case is being presented to the adoption panel, the medical adviser must
advise the adoption panel clerk whether to send to the adoption panel the child’s
health report, other medical and psychiatric reports, and health information about the
child’s birth parents. Where a child’s case is not being referred to the adoption panel
but direct to the decision maker, the medical adviser should be ready to answer any
medical question arising from their written summary or other papers asked by the
decision maker.
8. It is recommended that the agency make arrangements for the appointment of
its medical adviser with a local primary care trust’s
1
(PCT) designated doctor for
looked after children. Each PCT should appoint such a designated doctor to assist it
to fulfil its responsibilities as a commissioner of services to improve the health of
looked after children. The designated doctor is likely to be a senior paediatrician with
substantial clinical experience of the health needs of looked after children. In some
circumstances, the designated doctor may also be able to fulfil the role of the
medical adviser. Alternatively, the designated doctor should be able to recommend
another doctor to become the agency’s medical adviser. A VAA may seek advice
from a PCT’s designated doctor on arrangements for the appointment of a medical
adviser. Chapter 2 provides guidance on access to health information.
1
PCTs will be abolished from April 2013 with Clinical Commissioning Groups taking on their statutory
functions.The Adoption and Children Act 2002
18
Adoption reports
9. Reports, such as the child’s permanence report and the prospective adopter’s
report, are essential to the fundamental decisions that are made at key points during
the adoption process. Such adoption reports should be objective and prepared only
by individuals who either have the necessary qualifications and experience or are
supervised by a person who has. Because of the importance of these reports,
section 94 of the Adoption and Children Act 2002 (the Act) prohibits the writing or
commissioning of reports by someone who does not meet the requirements set out
in the Restriction on the Preparation of Adoption Reports Regulations 2005 (ARR).
10. The ARR defines those persons who may prepare or supervise the
preparation of adoption reports (ARR 3) and list the reports which fall within the
definition of ‘adoption reports’ (ARR 4).
11. Individuals who do not meet the requirements of ARR 3 and prepare any of
the reports set out in ARR 4 would, if convicted, be liable to imprisonment of up to six
months, or a fine, or both. It is also a contravention and an offence to ask someone
to prepare a report where they would not fall within the prescribed description, or to
submit a report by a person who does not fall within the prescribed description. See
Annex A and section 94 of the Act for the full details.
12. ARR 3 provides that only persons who fall within one of three categories of
the prescribed description may prepare adoption reports. These are:
a social worker, employed by the agency, who either has the necessary
experience or is supervised by a social worker, employed by the agency, who
has the necessary experience;
an independent social worker acting on behalf of the agency who has the
necessary experience and is supervised by a social worker employed by the
agency who has the necessary experience; or
a student social worker on an approved course supervised by a social worker
employed by the agency who has the necessary experience.
13. The necessary experience is at least three years’ post-qualifying experience
in childcare social work, including direct experience of adoption work. While the ARR
do not define ‘direct experience of adoption’, this should be experience as:
a social worker responsible for a child where the agency has decided that the
child should be placed for adoption and the social worker has been personally
involved in considering whether the child should be placed for adoption, the
matching, placement and review stages of the adoption process; and/orChapter 1
19
a social worker responsible for the recruitment, preparation, assessment and
support of adoptive families.
14. The social worker who knows the child best should, wherever possible,
prepare the report about the child, or those parts of a report that are about the child.
15. For those individuals who are being supervised, their work should be
supervised in accordance with their particular skills, experience and development
needs. It is not necessary for the supervised social worker to be under the direct line
management of the supervising social worker.
16. Where reports are being prepared by social work students, independent social
workers or social workers who do not have the necessary experience, the draft
report should be considered and discussed during supervision and signed off by a
social worker with the necessary experience before the report is submitted to the
adoption panel, another agency, or the court.
17. Reports should be legible, clearly expressed and non-stigmatising. The
information should be accurate and based on evidence that distinguishes between
fact, opinion and third party information. The information should be checked to
ensure that it is accurate and up to date before it is submitted to the adoption panel.
18. The person who prepares the report should sign and date it and indicate how
they meet the requirements of the ARR. Where the person has been working under
the supervision of a suitably qualified social worker, that social worker should sign
the report as well, indicating the capacity they are working in and how they meet the
requirements of the ARR. Where another worker has also contributed to the report,
they do not need to sign it, but the person responsible for the report should indicate
what role the other person has played and why they were involved in contributing to
the report.
Adoption panels
19. Adoption panels perform an important role in assisting the agency to reach
the best possible decision in respect of:
whether a child should be placed for adoption (but see paragraph 21),
the suitability of prospective adopters or the termination of approval of a
prospective adopter, and
whether a child should be placed for adoption with a specific prospective
adopter.The Adoption and Children Act 2002
20
They are intended to be multi-disciplinary bodies with a considerable element of
independence from the agency. This independence means that they cannot
themselves make decisions but make recommendations to the agency’s decisionmaker in respect of cases referred to it. Panels play an important quality assurance
role, providing objectivity and having the ability to challenge practice which is felt not
to be in the interests of children or fall short of the Regulations or NMS. Panels are
required to give regular feedback to the agency (see standard 17.2 of the NMS)
20. The panel can give advice to the agency (but it is not required to do so) on:
contact arrangements;
whether an application for a placement order should be made;
the number of children the prospective adopter may be suitable to adopt, their
age range, sex, likely needs and background; and
the provision of adoption support.
21. From 1 September 2012 the function of adoption panels to consider and make
a recommendation on whether a child should be placed for adoption will be limited to
those cases where, if the agency’s decision-maker decides that the child should be
placed for adoption, the courts will not be involved in scrutinising the agency’s
adoption plan. The cases which will be prohibited from being referred to the
adoption panel from 1 September 2012 will be those where an application for a
placement order would need to made if the decision-maker decided that the child
should be placed for adoption. The table in chapter 2 paragraph 64 sets out those
cases that must be referred to the adoption panel for consideration and those which
must be referred directly to the agency’s decision-maker for a decision.
Transitional arrangements – child should be placed for adoption cases
22. The adoption panel should continue to consider all cases referred to it before
1 September 2012. A case should only be withdrawn from the adoption panel and
referred directly to the agency’s decision-maker if (a) the adoption panel has not met
to consider the case before 1 September 2012 and (b) it is one of the cases referred
to in rows 3-6 of the table in chapter 2 paragraph 64. The table below sets out what
action the agency must take in respect of those cases listed at rows 3-6 in the table
in chapter 2, paragraph 64 that have been referred to the adoption panel for
consideration before 1 September 2012. Chapter 1
21
Adoption and Permanence panels
23. Regulations for adoption and fostering make no particular provision for
‘adoption and permanence’ panels. The following is intended to assist where the
agency is considering constituting such a panel. If the agency decides to do so, it will
need to ensure that the adoption and permanence panel complies with the
requirements of the AAR and the Fostering Services Regulations 2011.
24. Under the Fostering Services Regulations, a fostering panel is required to
consider and make a recommendation on the suitability of a person to be a foster
carer. There is no requirement for the panel to consider and recommend on either
the foster plan for a child or a foster match and placement. However, given the
significance of long-term fostering many agencies constitute adoption and
permanence panels, which combine knowledge and experience of adoption and
fostering and enable these two permanence options to be considered by one panel.
25. Although it may be clear that a child needs permanence in a new family, the
options for achieving this need careful scrutiny and for some children it may be very
difficult to find a permanent new family. An adoption and permanence panel would
be well placed to consider adoption or long-term foster care. It may recommend that
the child should be placed for adoption or, if it considers that adoption would not best
meet the child’s needs, it could advise that the child should be placed into long-term
foster care. This reduces the time needed to identify the type of placement that is
most likely to meet the child’s needs by avoiding consideration of adoption or
fostering at separate panel meetings.
Circumstances Withdraw case
from adoption
panel and refer
directly to
agency’s
decision-maker
for a decision
Adoption panel
retains case
1. Case referred to the adoption panel
but the panel has not met/will not
meet by 1 September 2012.
Yes No
2. Case referred to the adoption panel
which met to consider the case
before 1 September 2012 and the
panel’s recommendation and final
minutes have not been
communicated to the agency’s
decision-maker.
No Yes
3. Case referred to the adoption panel
which met to consider the case
before 1 September 2012 but the
panel is awaiting legal advice or
further information from the adoption
agency
No YesThe Adoption and Children Act 2002
22
Frequency of panel meetings
26. Adoption panels must not be the “bottleneck” in the decision-making process.
They must meet frequently and be able to meet at short notice before the next
scheduled meeting to deal with urgent cases. See standard 17.3 of the NMS
27. Panel clerks and the children’s social workers should liaise closely to identify
those children for whom adoption is the plan and whose case must be referred to the
adoption panel (see chapter 2 paragraph 64). Early notification will then allow the
clerk to arrange an early panel meeting. Similarly, the panel clerk should liaise with
the adoption team in respect of prospective adopters and the matching of children
and prospective adopters to ensure that there is no delay in panel consideration of
these cases.
The central list: AAR 3
28. Each agency must maintain a list of persons whom it considers suitable to be
a member of an adoption panel. There is no limit on the number of people who may
be included on the central list. Having a pool of people with different skills,
experience and qualifications allows for the most appropriate members to be drawn
upon to consider individual cases and reduces the likelihood of panel meetings
having to be postponed, whilst retaining knowledgeable and experienced members
without the need to wait for a vacancy to occur to appoint a new member to the list.
29. Before including an individual on the central list, the agency should inform
them in writing of their performance objectives, which should include participation in
induction and training, and safeguarding the confidentiality of records and
information submitted to the panel. The individual members should sign an
acceptance form to record their agreement to these objectives.
30. The central list must include individuals with the qualifications, experience and
qualities needed for the constitution of adoption panels:
At least one individual with the qualities needed to chair an adoption panel.
This individual must be independent of the agency. See AAR 4.7 for the
definition of independence. The most significant qualities that a panel
chair should have are:
o a sound understanding of the adoption process
o the authority and competence to chair a panel
o the ability to analyse and explain complex information
o the ability to identify key issues, problems and solutions
o excellent interpersonal, oral and written communication skills.Chapter 1
23
If the chair does not possess a sound understanding of the adoption
process but possess all the other qualities, they may be appointed
provided the agency considers that they will quickly develop an
understanding of the adoption process and the agency ensures that the
panel chair receives appropriate training before taking up their
appointment.
Individuals with the qualities to act as the vice chair. The vice chair should
have the skills and experience necessary to deputise for the chair. These
should be similar to the qualities for the panel chair. Unlike the panel chair,
there is no requirement for the vice chair to be independent of the agency
though this would be preferable where feasible.
One or more social workers with at least three years’ relevant post
qualifying experience. Relevant experience should be in child care social
work, including direct experience in adoption work. These social workers
do not need to be employed by the agency.
The agency’s medical adviser. Where the agency has more than one
medical adviser they may all be included on the central list.
Other persons. These will include individuals who are not employed by
the agency and whose appointment would help reflect the independent
nature of the panel. Suitable members could include specialists in
education, child and adolescent mental health, race and culture; and also
those who have personal experience of adoption. Social workers who do
not meet the requirement in AAR 3.1.a (see bullet three above) may also
be included on the central list, but they would be in addition to the social
worker who does meet the requirement in AAR 3.1.a. Agencies may
include on the central list individuals who are employed by the agency and
those who are trustees or elected members. The Adoption and Children Act 2002
24
Agency adviser to the panel: AAR 8
31. Each agency must appoint at least one agency adviser to adoption panels.
Their duties and qualifications are set out in AAR 8. The person appointed should be
someone with experience as an adoption team leader or someone who has more
senior management experience and who has experience of adoption. The agency
adviser may on request provide advice to the agency decision-maker when the
decision-maker is considering a particular case (see paragraphs 55 and 56).
32. The agency adviser is not a panel member and cannot take part in the
decision-making process. They should be able to contribute to panel meetings by
raising issues and providing advice, for example about the agency’s procedures and
practices.
33. The agency adviser should maintain an overview of the quality of the agency’s
reports, to both the panel and to the decision-maker, and liaise with team managers
to quality assure the child’s permanence report, the prospective adopter’s report and
the adoption placement report. Where there are concerns about a report, the agency
adviser and the panel chair should consider whether it is adequate for submission to
the panel. It will be for the agency adviser alone to decide whether the report is
adequate for submission to the decision-maker.
34. The agency adviser should also update the panel on the general progress of
cases it has considered. This is particularly important where the panel’s
recommendation or advice was not accepted.
Joint adoption panels
35. Where a local authority has difficulties in arranging frequent panel meetings or
deals with a relatively small number of adoption cases, it should consider arranging
with one or more other local authorities to have a joint central list and joint panels.
Where such an arrangement is made, it will be for the local authorities to decide
which of them has responsibility for appointing an agency adviser, maintaining the
central list and setting up adoption panels. Having joint panels help ensure that
decisions relating to children and prospective adopters are not delayed, as joint
panels will meet more often and at a lower cost to the individual local authorities.
There is no provision of VAAs to share panels, but different branches of the same
VAA may share a panel.
Performance
36. To ensure the chair and individuals on the central list remain suitable to
remain on that list their performance is to be reviewed annually against agreed
performance objectives. The agency’s decision-maker should review the Chapter 1
25
performance of the panel chair, and for this purpose may attend a proportion of
panel meetings but only as an observer. Views about the chair’s performance should
be sought from other panel members, and from those who attend panel meetings,
such as prospective adopters and social workers. The agency adviser to the panel
and the panel chair should conduct the performance review of those individuals on
the central list.
37. Where an agency identifies that the chair or an individual on the central list is
not performing to the required standard, perhaps as part of the review process, it
should ensure that this is discussed promptly with the individual with the aim of
addressing any development needs through advice and training. If, however, their
performance remains below the required standard and the agency considers they
should not remain on the central list, they should be informed that their services are
no longer required. The individual must be given one month’s notice of the agency’s
intention to remove their name from the central list. The notice should be in writing
and include the reasons for the decision.
38. Once appointed to an adoption panel the chair’s or individual’s appointment
can only be terminated if they are unsuitable or unable to consider the case. This
action may be taken when, for example, the individual becomes unavailable through
illness or business commitments, when a previously unidentified conflict of interest
arises (e.g. the individual knows the prospective adopters), etc. Terminating the
individual’s appointment to the panel is not the same as removing their name from
the central list. The agency can continue to appoint the individual to another panel
for as long as it considers that individual suitable.
Adoption panel fees: AAR 4.4
39. AAR 4.4 provides that a local authority may pay any member of an adoption
panel a fee that the authority considers is a reasonable amount. Although it is not
provided for by the AAR, a VAA may pay a fee to any member of its adoption panel.
40. Fees may be paid in proportion to the number of panel meetings that the
panel member attends or as an annual fee. The authority may pay a fee to panel
members for the time that they prepare for panel meetings and it may also reimburse
them for the expenses they incur in travelling to and from panel meetings and related
activity.
Constituting an adoption panel: AAR 4 and 6
41. An adoption agency must constitute an adoption panel as and when needed
(but see paragraphs 21, 22 and 26 above) with sufficient capacity to undertake the
required duties of such panels. More than one adoption panel may be constituted at
any one time. The Adoption and Children Act 2002
26
42. When constituting an adoption panel the agency must draw the members
from the central list. These members must have the appropriate qualifications and/or
experience to consider the cases submitted to the panel. The agency must appoint
a chair and up to two vice chairs. There is no requirement to appoint a second vice
chair, but this may help manage any unexpected absences of both the chair and vice
chair. Subject to each meeting being quorum, it is for the agency to decide how
many panel members should be present at each panel meeting. However, a panel
should not be so large as to make it difficult to chair the meeting or intimidating for
those attending the meeting.
43. The panel’s business can only be conducted if at least five members (six for
joint panels) are present, including the chair or vice chair and a social worker with at
least three years’ relevant post-qualifying experience (see AAR 3.1.a). Where the
vice-chair has to chair the meeting, and is not an independent member, at least one
independent member will need to be present for the panel to be quorum.
44. The panel chair should make it clear that every member’s view is as valid as
others’ and encourage them to participate and contribute to the panel’s
recommendations.
45. The panel must keep minutes of its meetings and a written record of its
recommendations and reasons. The panel chair is responsible for ensuring the
accuracy of the panel’s recommendations, reasons and, following agreement with
panel members, the minutes. The chair must also make sure that a person who is
not a member of the panel fulfils the task of writing these documents.
46. It is important that the panel minutes carefully record the names of panel
members attending the meeting, and the names and roles of any other people
present at the meeting. The minutes must accurately reflect the discussion and cover
the key issues, rather than be a verbatim record of the meeting. Where panel
members have serious reservations, the panel chair must ensure these are recorded
in the minutes and are attached to the panel’s recommendation. If the panel cannot
reach a consensus on its recommendation after the chair and other members of the
panel have voted, the panel chair has a second vote, i.e. the casting vote. The
panel’s minutes should clearly set out the reasons why the panel chair had to use
the casting vote. The final minutes must be produced promptly and agreed by the
panel members and then sent to the agency’s decision-maker to allow the decision
to be made within seven working days of receipt of the panel’s recommendation and
final set of panel minutes.
47. It should be borne in mind that, for example, the notification of any qualifying
determination to prospective adopters (see chapter 3) must be accompanied by full
reasons for the decision, and should make clear whether or not the decision-maker’s Chapter 1
27
decision is in accordance with the panel’s recommendation. In Hofstetter v London
Borough of Barnet and IRM [2009] EWHC 3282 (Admin) paragraph 133, the court
was critical of the agency’s practice of telling the prospective adopters that they
would be informed of the reasons for the qualifying determination as and when the
minutes had been prepared. The decision-maker needs to be clear as to whether or
not they agree with all or some of the reasons for the panel’s recommendation as
expressed in the minutes.
48. Arrangements should be made by the agency adviser to the panel for the
safekeeping of the minutes and the record. Panel minutes, like other parts of
adoption case records, are exempt from the subject access provisions of the Data
Protection Act 1998 (ie the person to whom they relate does not have a statutory
right of access to the information they contain). For more details, see chapter 6.
Notification of the panel’s recommendation
49. Prospective adopters, children and birth parents should be told the panel’s
recommendation and its reasons immediately after the meeting. However, it must be
made clear that the agency’s decision-maker makes the final decision.
Agency decision-maker
50. The adoption panel makes recommendations to the agency - and not
decisions - in respect of the cases referred to it. It is the role of the agency to make a
decision and for this purpose it is necessary for the agency to appoint a decisionmaker.
51. From 1 September 2012 the agency will be prohibited from referring to the
adoption panel those cases where, if the decision-maker were to decide that the
child should be placed for adoption, the agency would be required to apply for a
placement order. The agency will refer those particular cases directly to the
decision-maker. The decision-maker will continue to consider recommendations
from adoption panels in all other cases. The table in chapter 2 paragraph 64 sets
out those cases that must be referred to the adoption panel for consideration and
those which must be referred directly to the agency’s decision-maker for a decision.
52. The agency’s decision-maker is a senior person within the adoption agency.
VAAs may also appoint a trustee or director. NMS 23.17 sets out the qualifications,
knowledge and experience decision-maker must have. The person does not have
direct management responsibility for the adoption panel but has the authority to
make decisions on the agency’s behalf as to whether:
a child should be placed for adoption (AAR 19); The Adoption and Children Act 2002
28
prospective adopters are suitable to adopt a child or continues to be
suitable to adopt a child (AAR 27 and 29);
a child should be placed for adoption with a specific prospective adopter
(AAR 33); and
to disclose protected information about adults under section 61 of the Act
and regulation 15 of the Disclosure of Adoption Information (PostCommencement Adoptions) Regulations 2005 (AIR) when determining an
application.
There may be more than one decision-maker in an agency. The decision-maker
may not delegate their authority to another person.
53. In Hofstetter v LB Barnet and IRM [2009] EWCA 3282 (Admin) the court set
out guidance for the way in which the decision-maker should approach a case. The
court said that it would be good discipline and appropriate for the decision-maker to:
list the material taken into account in reaching the decision;
identify key arguments;
ask whether they agree with the process and approach of the relevant
panel(s) and are satisfied as to its fairness and that the panel(s) has
properly addressed the arguments;
consider whether any additional information now available to them that
was not before the panel has an impact on its reasons or
recommendation;
identify the reasons given for the relevant recommendation that they do or
do not wish to adopt; and
state (a) the adopted reasons by cross reference or otherwise and (b) any
further reasons for their decision.
54. Before making a considered and professional decision, the decision-maker
will need to consider:
the exercise of powers under section 1 of the Act;
all the information surrounding the case including the reports submitted to
the adoption panel;
that the author(s) of the reports comply with the ARRs;
the stability and permanence of the relationship of any couple under
consideration (regulation 4 of the Suitability of Adopters Regulations 2005)
the recommendation and reasons of the adoption panel and the
independent review panel; and
the final minutes of the adoption panel including any minutes from Chapter 1
29
adjourned panel meetings and the independent review panel.
Where a case has not been referred to an adoption panel, references in this
paragraph to the panel are not relevant. Where the decision-maker considers that
they have insufficient information, or needs medical or legal advice, they should ask
the agency to obtain the information/advice and the agency must comply with this
request.
55. Where the decision-maker wishes to discuss a child’s case which has been
referred directly to them for a decision under AAR 19.1A, the case cannot be
referred informally to the adoption panel for advice. The information and reports
listed in AAR 17.2D are sensitive personal data. The first data protection principle
states that personal data must be processed fairly and lawfully and, in particular,
must not be processed unless at least one of the conditions in Schedule 2 of the
Data Protection Act is met. And, in the case of sensitive personal data, at least one
of the conditions in Schedule 3 also has to be met. The second data protection
principle states that personal data can only be obtained for one or more specified
and lawful purposes and may not be further processed in any manner incompatible
with that purpose. As AAR 17.2 says the agency may not refer the child's case to
the adoption panel, then the panel has no function under the AAR in relation to that
case and so there is no lawful justification for the decision-maker to refer AAR 17.2D
information to the panel. To do so would mean the agency would be in breach of
AAR 17.2. Similarly, the panel would be in breach of AAR 17.2 if it did consider the
case. The decision-maker may discuss the case with the agency adviser, medical
issues with the medical adviser and seek legal advice (see paragraphs 7, 31 and
56).
56. Where the decision-maker wishes to discuss any other case, for example
because they are minded not to accept the recommendation of the adoption panel or
independent review panel, they should speak to the agency adviser or medical
adviser as applicable (see paragraphs 7,31, 55 and AAR 19.2, AAR 27.2 and AAR
33.2). The outcome of any discussion, as well as the decision itself and its reasons
must be recorded on the child’s and/or prospective adopters’ case record, as
applicable.
57. The decision-maker must make the decision within seven working days of
receipt of the reports referred to in AAR 17.2D or, as applicable, the
recommendation and final set of minutes of the adoption panel or independent
review panel. The child’s parents or guardian and prospective adopter should be
informed orally of the agency’s decision within two working days and written
confirmation should be sent to them within five working days. Where the
independent review panel had reviewed the case, a copy of the decision must be
sent to the contract manager of the independent review mechanism (IRM) (see
paragraph 61).The Adoption and Children Act 2002
30
58. Where the decision-maker makes a qualifying determination on the suitability
of prospective adopters, the letter in chapter 3 must be used.
The independent review mechanism
59. The IRM is a review process that can be used when an adoption agency has
made a qualifying determination. The Independent Review of Determinations
(Adoption and Fostering) Regulations 2009 and the AIR define qualifying
determinations as:
a qualifying determination made under AAR 27.4 is a determination made
by the agency’s decision-maker when they do not propose to approve the
prospective adopter as suitable to adopt a child. A qualifying
determination may be given in respect of an application to adopt a child
from the United Kingdom or from outside the British Islands after either a
brief or full prospective adopter’s report has been prepared and
considered by the adoption panel and agency or where the agency
decides to change an earlier decision to approve the prospective adopter
and that too has been considered by the adoption panel and agency;
a qualifying determination made under AIR 15.1 is a determination made
by the appropriate adoption agency’s decision-maker in relation to an
application under section 61 of the Act:
(a) not to proceed with an application from any person for
disclosure of protected information;
(b) to disclose information against the express views of the
person the information is about; or
(c) not to disclose information about a person to the
applicant where that person has expressed the view
that the information should be disclosed.
A review panel whose members are independent of agencies conduct the review
process.
Liaison officer
60. Each agency should appoint a liaison officer. Their role is to serve as the
main contact between the agency and the IRM. The liaison officer sends to the IRM
administrator all the appropriate documentation and ensures the case is referred to
the agency’s decision-maker after the IRM has made its recommendation. The Chapter 1
31
liaison officer must ensure swift action is taken on requests made by the review
panel, for example a request for a specialist medical report and give the IRM
notification of the agency’s decision.
Contact details
61. All correspondence and documents must be sent to the IRM’s contract
manager:
Contact details
Independent Review Mechanism
Unit 4
Pavilion Business Park
Royds Hall Road
Wortley
LEEDS
LS12 6AJ
Telephone: 0845 450 3956
Fax: 0845 450 3957
Email: irm@baaf.org.uk
Website: http://www.independentreviewmechanism.org.uk
The website provides additional information about the IRM.
Cost of a review
62. There is no cost to prospective adopters applying to the IRM but the agency
will pay a contribution towards the cost of the review. The contribution is not subject
to VAT and will be reviewed annually. The agency will receive an invoice from the
British Association for Adoption and Fostering, the organisation operating the IRM on
behalf of the Secretary of State for Education.
Function of the review panel
63. The IRM is not an appeal process and the review panel is not a higher
appellate authority. The function of the review panel is to consider a case anew and
to give the agency a fresh recommendation.The Adoption and Children Act 2002
32
Suitability to adopt a child
64. When reviewing a qualifying determination on the suitability of a prospective
adopter, the review panel will consider and take into account:
the agency’s determination, its reasons and, if different to the agency’s
determination, the adoption panel’s recommendation;
information that was before the adoption panel and any relevant information
that arrived after that hearing;
the prospective adopter’s grounds for review and any extra information
submitted by the prospective adopter.
There may be occasions when the review panel needs more information or
assistance.
65. The review panel has wide powers and may ask the agency to provide,
without charge, specific information or to provide assistance to the review panel. For
example, the review panel may need a specialist medical report. In such cases, the
review panel administrator will pass the request to the agency’s liaison officer who is
to arrange for the agency’s medical adviser to liaise with the review panel’s medical
practitioner. Where legal advice is required, the review panel will not approach the
agency but will seek its own legal advice.
66. The review panel may make a recommendation on whether or not the
applicant is suitable to adopt a child. Where a brief prospective adopter’s report has
been made the review panel may recommend that the agency prepares a full
prospective adopter’s report in accordance with AAR 25.5 or that the applicant is not
suitable to adopt a child.
67. The review panel does not have the legal power to consider the
recommendation of an adoption panel on a proposed placement as to whether the
child should be placed for adoption with that particular prospective adopter. (AAR
32.1). Where the suitability of the prospective adopter to adopt a specific child was
considered by an adoption panel and a qualifying determination made, the review
panel will be able to consider and make a recommendation only on the prospective
adopter’s suitability to adopt a child and not the specific child in mind.
68. The review panel cannot consider complaints about the adoption agency;
these should be considered through the agency’s complaints procedure. Chapter 1
33
Disclosure of protected information
69. When reviewing a qualifying determination on the disclosure of protected
information, the review panel will consider and take into account all of the information
passed to the agency in accordance with AIR 15.3. There may be occasions when
the review panel needs more information or assistance. The review panel has wide
powers and may ask the agency to provide, without charge, specific information or to
provide assistance to the review panel. In such cases, the review panel administrator
will pass the request to the agency’s liaison officer.
Notification of application
70. The IRM administrator will send a written acknowledgement to the applicant
and will seek their consent to the disclosure of all papers including medical
information. The applicant will send their consent to the liaison officer.
71. On being notified by the IRM administrator that the applicant has applied for
an independent review, the agency must send the documents set out in AAR28/AIR
15 to the IRM administrator, within 10 working days of receiving the notification. No
minutes of any adoption panel meeting must be sent to the IRM administrator. This
is so that the review panel can consider the case without being influenced by the
thinking of the original adoption panel, although of course they will know the reason
for the decision-maker’s qualifying determination.
72. The IRM administrator will send a copy of the papers to the applicant and will
send copies of any additional information provided by the applicant before the review
panel meeting to the agency’s liaison officer. The exception to this is confidential
third party information, such as references, which cannot be shared with the
applicant, unless the referees have given their consent.
Attending the review panel meeting
73. The review panel administrator will invite the applicants to attend the review
panel meeting and advise them that they may bring a friend or interpreter with them.
The role of the friend is to give moral support to the applicant; it is not the role of the
friend to speak on their behalf or to act as an advocate. The applicants will be able to
ask the review panel questions and to respond to questions posed by the review
panel.
74. The review panel administrator will invite the agency to send up to two
representatives to the review panel meeting. Whenever possible the original
assessing social worker should attend the meeting. This is because the review
panel’s questioning is likely to focus on information obtained during the assessment.
A second representative could be the team manager although some agencies may The Adoption and Children Act 2002
34
choose to send a senior manager. It is not appropriate for the decision-maker to
attend as it will be their responsibility to make the final decision following the review
panel’s recommendation. It is important that in these situations that the
independence of the review panel is not affected by any discussion of the decision
making of the original adoption panel or agency.
75. The review panel will not pay expenses to applicants, their friend/interpreter or
to the agency’s representatives who attend the review panel meeting.
Review panel’s recommendation
76. The review panel will make a written recommendation about the prospective
adopter’s suitability to adopt a child or, in respect of disclosure of information cases,
whether or not the agency should proceed with its original determination. The IRM
administrator will send a copy of the review panel’s recommendation, its reasons and
minutes to both the applicant and agency. Chapter 2
35
Chapter 2: Considering and deciding whether a child should be
placed for adoption
This part of the guidance explains the duties of an adoption agency where the
agency is considering adoption for a child.
Introduction
1. This part of the guidance deals with the duties of the adoption agency when it
is considering whether a child should be placed for adoption. In the majority of
cases this will involve a local authority making plans for a looked after child and
many of the steps that need to be taken will be the same as those involved in
planning for any looked after child (see Children Act 1989 Guidance and
Regulations: Volume 2: Care Planning, Placement and Case Review particularly
chapter 2). In a minority of cases a birth parent or parents will ask a local authority
or a voluntary adoption agency (VAA) – possibly before the birth of a baby – to place
the child for adoption.
2. The following timescales should generally be adhered to during this part of the
adoption process, unless the agency considers that in a particular case complying
with a timescale would not be in the child’s interests – the paramount consideration
must always be the welfare of the child:
the child's need for a permanent home should be addressed and a
permanence plan made at the four month review;
the adoption panel should receive all necessary information from the agency
within six weeks of the completion of the child's permanence report (CPR);
and
the adoption panel’s recommendation on whether the child should be placed
for adoption should be made within two months of a review where adoption
has been identified as the permanence plan.
Where the agency is unable to comply with a timescale or decides not to, it should
record the reasons on the child’s case record.
3. The agency should monitor its performance against these timescales and
make this information available in its six-monthly reports under the National Minimum
Standards 25.6. The Adoption and Children Act 2002
36
Planning for permanence
4. A local authority will need to consider a child’s needs for permanence when
that child is about to be relinquished for adoption or who is looked after, either
because the child is being voluntarily accommodated, is the subject of an interim
care order under the Children Act 1989 (the 1989 Act), or care proceedings have
been initiated. An appropriate permanence plan should be identified no later than at
the second statutory review – the four-month review. This review should consider all
the options for best meeting the child's welfare, including the child's needs for
permanence – see the Care Planning, Placement and Case Review (England)
Regulations 2010 and associated guidance.
Concurrent planning
5. Concurrent planning is a form of contingency planning first used in England in
the late 1990s. This involves placing a looked after child with approved foster carers
who, as well as providing temporary care for the child, bring them to regular
supervised contact sessions with their parents and other relatives. In addition, the
carer spends time with the parents at both ends of contact sessions to update them
on the child’s progress. This enables a relationship to develop which is supportive to
the parents. The agency provides focussed support via a contact supervisor whose
role is to advise the parents to help them to change their lifestyle and improve their
parenting skills with the aim of enabling their child to return home to them. If this is
the outcome, the child will have maintained contact with their parents and have
sustained their attachment because of the regular contact visits. But the carers are
also approved as adopters so that if the parents’ rehabilitation plan is not successful,
the child is placed with the carers for adoption, ensuring a continuity of attachment.
6. Concurrent planning is not the same as parallel or twin track planning. In
these cases the child remains with their parents or is placed with temporary foster
carers while a rehabilitation plan is implemented. At the same time an alternative
plan for permanence is developed, which would usually involve a different set of
carers, to ensure that it is available as soon as it is clear that rehabilitation is not
going to be achieved.Chapter 2
37
7. Concurrent planning is usually most appropriate when the child is under-two.
There is substantial evidence
1
of the serious long-term effects on children under-two
who from birth did not receive sensitive, committed and stable care from their
primary carer. It is not the right option for all children, for example, those who are
already in a stable foster placement but for whom adoption subsequently becomes
their plan, or where the need for care is to be short-term, and older children. But it
should always be considered, in the context of care planning as a whole, as one of
the possible options for achieving permanence for a child.
8. Local authorities should actively consider the advantages of concurrent
planning and integrate the approach into their permanency planning arrangements
delivered in-house or commissioned from another adoption agency. This may mean:
training and supporting permanency planning teams and fostering and
adoption panels to use the model;
integrating concurrent planning into care planning protocols;
dually preparing, supporting and approving foster carers/prospective
adopters;
agreeing local court protocols to support concurrent planning; and
making support and rehabilitation services available in a timely way for
parents.
Considering adoption for a child
9. Where the first or second review (or any subsequent review) decides that
adoption is the preferred option for permanence, an adoption plan must be
commenced and the information on the care plan be transferred to the adoption plan.
It is at this point that regulation 11 of the Adoption Agencies Regulations 2005 (AAR)
provides that AAR 12 to 17 apply, as the agency is clearly considering adoption for
the child.
10. Because adoption, unlike any other permanence option, involves the ending
of a child’s legal relationship with their parents and family and the creation of a
1
Monck, E. (2001). Work in progress: concurrent planning in the adoption of children under eight
years.
Monck, E., J. Reynolds, et al. (2003). The role of concurrent planning : making permanent placements
for young children. London, BAAF.
Monck, E., J. Reynolds, et al. (2004). Using concurrent planning to establish permanency for looked
after young children. Child & Family Social Work 9(4): 321-331.
Monck, E. R., J. Wigfall, V. (2005). The Role of Contact in Concurrent Planning: The Experiences of
Birth Parents and Carers. Adoption Quarterly 9(9): 13-34.
Ward, H., Brown, R., et al (2010). Infants suffering, or likely to suffer, significant harm: A prospective
longitudinal study. Adoption Research Initiative study.The Adoption and Children Act 2002
38
lifelong relationship with new parents, the Adoption and Children Act 2002 (the Act)
and the AAR lay down particular procedures to be followed. Not only does the Act
require the court to finalise the adoption process through the making of an adoption
order (if that is the right decision for the child), but AAR 19 also requires the local
authority’s decision-maker to decide whether the child should be placed for adoption
after the procedures set out in AAR12-18 have been complied with. A decision at
the child’s statutory review that adoption should be the plan for the child is therefore
only the first of many steps in the adoption process, which will lead – subject to the
scrutiny of the plan in accordance with the AAR – to a formal ratification of the plan
for adoption under AAR 19.
11. These procedures constitute a safeguard for both the child and the parents,
but it is important that compliance with them does not lead to unnecessary delay in
securing the child’s future. The steps that have to be taken in accordance with AAR
12-19 and this part of the guidance should not be considered in isolation, or as
sequential steps. The key duties of the adoption agency under AAR 12-19 consist of:
providing information and counselling to the child and parents (and
other family members as appropriate);
gathering information (including on the wishes and feelings of the child
and parents) needed to complete the CPR;
referring the report to the agency’s decision-maker or panel (see
paragraph 64); and
making a decision whether the child should be placed for adoption.
12. The first two of these duties will be part of a continuous process. The
possibility of adoption will not arise suddenly and unexpectedly; in many cases
during the early stages of the local authority’s involvement there will be a need for
‘twin-track’ or parallel planning, including concurrent planning. In any case where
there is a possibility that adoption may become the plan, it is incumbent on the local
authority to ensure that the parents are aware of this possibility and provided with
information about its significance, and information about the support available. Thus
some of the duties laid out in AAR 14 (counselling and information for parents) will
have been carried out before the review at which adoption is identified as the plan for
the child, but further counselling will be needed after that point.
13. Likewise, the work that needs to be done in gathering information (AAR15)
will have begun from the time of the initial assessment, and will continue with the
core assessment and further assessments as part of the review process. This should
mean that the compilation of the CPR itself is not a fresh piece of work, but for the Chapter 2
39
most part a bringing together of information that has been gathered already over a
period of, probably, several months at least.
14. In many cases, adoption may be identified as a possible permanence option
during the course of, or sometimes before the commencement of, care proceedings.
It is important that social workers give early notice to the agency’s medical adviser
where a new health assessment is needed or updated, and to their legal advisers
that a placement order may be required. It is vital that the preparation of the CPR
and the decision of the agency’s decision-maker dovetail with the court timetable so
that there is no delay for the child.
The child’s adoption case record: AAR 12
15. The agency is formally considering adoption for a child once a decision has
been made at the child’s statutory review or, in the case of a child relinquished for
adoption, as soon as the local authority or VAA is considering the parent’s request
that an adoption plan be followed. Once the decision is made an adoption case
record is to be set up and the documents listed in AAR 12 will form part of this
record.
16. Adoption case records have a special status under AAR 39-43 and the
Disclosure of Adoption Information (Post-Commencement) Regulations 2005.
Consequently, a distinction is made between this record and the ‘looked after child’
case record kept under the 1989 Act or the equivalent record kept by a voluntary
agency accommodating a child under section 59(1) of the 1989 Act. This is despite
the fact that the information contained in the latter will form the first documents
included within the adoption case record.
Counselling and informing the child: AAR 13
17. As far as is reasonably practicable – which will of course be influenced by the
age and understanding of the child – the agency must ensure that the child is
provided with counselling and information about adoption (including written
information) in accordance with AAR 13. This details particular aspects that must be
considered with the child. Local authorities are required by regulation 3 of the Local
Authority Adoption Service (England) Regulations 2003 to have a Children’s Guide
which will be useful for this purpose.
18. Counselling should help a child – subject to age, background and
development – to understand over time what adoption would mean for them now and
in the longer term. The child should be helped to understand why the agency
considers they should not stay with their own family or current carer and why
adoption is the preferred option for their permanence. They also need to know about
the implications adoption may have for contact with their parents, brothers and The Adoption and Children Act 2002
40
sisters, wider family members and others.
19. English will not be the first language for some children, while others may have
communication or learning impairments. Agencies must ensure that someone who
can communicate easily with the child provides the counselling. Counselling also
needs to be given in a way that is sensitive to the child's religious beliefs or other
values and in an environment where the child is able to talk and ask questions in a
way that enables them to gain an understanding of their situation.
20. In seeking the child’s views, the agency should not give the child the
impression that they are being asked to bear the weight of the decision that needs to
be made about their adoption. The child should be helped to understand that their
wishes and feelings will be listened to and taken into account. The child’s views
should be recorded. Where the agency is unable to ascertain the child's views, the
reasons for this should be recorded on the child's case record. The provision of
counselling for the child is a continuing duty on the agency and so, as the child’s
needs develop over time, it will be necessary to consider the manner and content of
further counselling and information as appropriate to the child’s needs.
21. In cases where another adoption agency has already carried out some of the
duties set out in AAR 13, the agency should take this into account in continuing the
child’s counselling and should involve the child’s former social worker, as
appropriate. The agency may consider that it is in the child’s interests for certain
members of their family to play a part in their counselling. Whatever the involvement
of others, the agency remains responsible for ensuring that the counselling meets
the child’s needs as they develop over time and is given in a way that is sensitive
and appropriate to their background, age and understanding.
Counselling and informing the child’s family and others: AAR 14
22. As with any other type of planning for a child, it is essential to involve the
parents and others who are important to the child. In addition to the consultation that
is required under the 1989 Act, AAR 14 imposes a particular duty in respect of
counselling and the provision of information when adoption is being considered.
Although the Act does not require the formal consent of the child’s father (where he
does not have parental responsibility) to adoption or placement for adoption, if it is
practicable and consistent with the child’s welfare, the agency must provide the
father with counselling and information. Where the father’s identity and whereabouts
can be ascertained it should be rare for the agency to decline to offer him information
and counselling. See paragraphs 34-43 for those cases where a mother wishes to
conceal from the father the child’s birth, or her desire for adoption. In addition, it will
be important for the sake of the child’s future to have gathered as much information
as possible, from both sides of the family.Chapter 2
41
23. The information to be provided to parents under AAR 14 includes written
information, and information about the legal implications of adoption, and the
processes involved. Agencies should give the parents opportunities to discuss and to
ask questions. It is important that social workers help parents to understand that
information they can provide about the child’s and their own background and history
will be valuable to the child as they grow up. It would be ideal if their consent can be
obtained to the sharing of information with the child in the future, eg when they seek
information from the agency after reaching adulthood (see chapter 11). The parent’s
independent support worker also has a role to play in encouraging the parents to
provide information for the benefit of the child.
24. As well as explaining the matters set out in AAR 14, the agency needs to be
clear about why it considers the child should not be returned to the parent or
guardian and should be placed for adoption. The consequences of the adoption
process for parental responsibility, for contact with the child and how this will change
if the agency is given authority to place the child for adoption should also be made
clear.
25. The agency’s counselling should include an explanation that the 1989 Act
contact obligations would be replaced by the contact arrangements provided for
under the Act and by the AAR if the agency obtains authority to place the child. The
agency should also explain the right that the parent or guardian and others have to
apply for a contact order under section 26(2) and 26(3) of the Act.
26. The agency should offer the parents the services of an independent support
worker – someone who can provide advice and support and is either from another
adoption agency or adoption support agency or, at least, not a member of the team
of social workers who are responsible for the child’s case. Where the parents are
opposed to the idea of adoption they may refuse to accept counselling from the local
authority that is proposing this plan. In such cases the agency should offer to
arrange counselling through another agency, and should also encourage the parents
to consult their own solicitor as soon as possible. Where the parents have declined
to accept counselling the agency should record this, and details of any offers of
counselling it has made, on the child’s case record. The agency should also ensure
that the parents’ legal advisers and/or independent support worker are aware of the
situation.
27. In many circumstances, parents (and some of their family members) whose
children are being considered for adoption may be hard to reach or to engage with
because of their own additional needs, including learning difficulties, mental health
problems, or drug or alcohol misuse
1
. Agencies should consider, perhaps in
1
Neil, E., Young, Julie., Cossar, J., Jones, C. and Lorgelly, P. (2010) Supporting direct contact after
adoption, Adoption Research Initiative study.The Adoption and Children Act 2002
42
conjunction with specialist services provided for people with these difficulties,
imaginative ways of engaging with ‘hard to reach’ parents.
28. It may be that at a later stage in the process the parents will come to accept
the need for their child to be placed for adoption, or their opposition may be modified
at least to the extent that they are prepared to discuss the issue. The agency should
make every effort to maintain contact with the parents throughout the adoption
process, through their solicitor if necessary, and should be ready to offer counselling
at any time, even if this has previously been rejected. This is appropriate not only for
the parents’ sake, but will also assist the agency in being able to provide the child
and their adoptive parents with up to date information about the parents and, where
appropriate, to consider future contact plans. In due course, if the child is placed for
adoption, and an adoption application is made to the court, the parents will (unless
they have already given consent and explicitly stated that they wish not to be
involved) receive notice of the court hearing. At this point it will be helpful for the
adoptive parents and the child to know whether it is likely that the parents will wish to
apply to the court for leave to oppose the adoption order.
29. The parents’ counselling should be sensitive to their ethnic origins and
religious beliefs. English will not be the first language for some parents while others
may have communication or learning impairments. Agencies must ensure that
someone who can easily communicate with the parents provides the counselling.
Agencies may wish to consider collaborating with each other to commission
translations of written information appropriate to children and parents within their
local community. Any learning disability/sensory impairment should also be
recognised and counselling must be sensitive to it.
30. The wishes and feelings of the child's parent, guardian or others should be
recorded on the child's case record as this information will need to be included in the
CPR and be taken into account during the matching process. This would include:
where the parent or guardian is willing to consent to the child being placed
for adoption and whether their consent would relate to an identified
prospective adopter or would be general consent to placement with any
prospective adopter chosen by the agency;
where the parent or guardian rejects the agency’s adoption proposal for
the child and suggests alternative care arrangements.
It is important to explain to the parent why it will be necessary to ask them for
information about themselves and the child, including health and family health
information. The social worker should emphasise how important this knowledge will
Chapter 2
43
be to provide current health care, and to enable plans to be made for the child now
and in the future, and to satisfy the child’s needs for information throughout their life.
31. The agency should explain that any information obtained will be safeguarded,
and the circumstances in which it will be shared with others, including the adoption
panel, prospective adopter when the child is placed, the court, and, at the
appropriate time, the child. The parent should be given information about the
provisions of the Adoption Information and Intermediary Services (PreCommencement Adoptions) Regulations 2005 (AIR) and the child’s right to request
information when they reach eighteen, and encouraged to consider what information,
mementoes and photographs they might wish to leave with the agency to be passed
on to the child in the future (see chapter 11).
32. The duty to ascertain and record the wishes and feelings of those close to the
child applies to any other person the agency considers relevant. This will include
relatives, particularly grandparents and siblings of the child, and current or past
carers and other people important to the child. Although AAR 14 does not explicitly
require that they be offered counselling, it will be important to ensure that they
understand what is proposed, and the implications of adoption. If they wish to be
considered themselves as future carers of the child, they should be advised to make
this clear as soon as possible, so that an assessment of their suitability can be
carried out without delay. If they do not wish themselves to care for the child, but do
wish to maintain contact, it is important that their wishes are recorded, and they are
informed of their rights to request continuing contact, and to apply to the court if this
is not agreed.
33. Where the parents wish to conceal from members of their family the fact of
the child’s existence, or the fact that they are seeking their adoption, the agency will
be faced with a conflict between the parents’ right to privacy and the child’s right to
know, and perhaps the chance of being brought up by their extended family. Where
the agency considers that it is likely to be in the child’s interests to be given this
opportunity, it should encourage the parents to consider the matter from the point of
view of the child. Generally, the courts have been reluctant to override a parent’s
determination for the extended family not to be informed but as with fathers without
parental responsibility, agencies should avoid giving parents any undertaking that
the birth or the proposed adoption will be kept secret. Each case will have to be
considered on its own facts. See the cases of Z County Council v R [2001] 1 FLR
365 and Re C (A child) v XYZ County Council [2007] EWCA Civ 1206.
Counselling fathers without parental responsibility
34. The difficulties faced by agencies in counselling fathers without parental
responsibility for the child were underscored by the cases of Re H and Re G
(Adoption: Consultation of Unmarried Fathers) [2001] 1FLR 646. In each case the The Adoption and Children Act 2002
44
mother wished her baby to be adopted and did not want to disclose the identity of the
father without parental responsibility to the local authority. Since implementation of
the Act, this question has also been considered by the courts in the case of Re C (A
child) v XYZ County Council.
35. The court in the case of Re C confirmed that the Act does not impose any
duty on an adoption agency to make enquiries of a father without parental
responsibility, or his family, unless this is in the best interests of the child. The
adoption agency, or the courts, has the discretion whether to contact a father without
parental responsibility where the mother does not want to disclose his identity. In
exercising this discretion, an adoption agency should consider the nature of the
child's relationship with the father and the nature and extent of the father's
relationship with the child's mother and any siblings of the child. It must also
consider whether it would be contrary to Article 8 of the Convention to prevent
disclosure of the birth of a child to the child’s father. Article 8 guarantees respect for
private and family life.
36. In the case of Re H the parents had had a relationship: they had lived
together and their relationship lasted several years. The father had shown continuing
commitment to the elder sibling of the child. The father was entitled to respect for
family life with the younger child under Article 8 and to place the child without notice
would be a breach of that right. In accordance with the court rules
1
the court held
that the father should be given notice and made a respondent with an opportunity to
be heard.
37. In the case of Re G the parents had never lived together and their relationship
did not show de facto family ties and did not come within the concept of family life:
the father had no right to respect for family life. It was therefore not necessary for
him to be given notice or joined as a party to the proceedings.
38. Whether or not the father without parental responsibility enjoys a right to
family life under Article 8 will depend on the facts of the case. As part of its
counselling of the mother, the agency should explain its obligations under Article 8
towards a father without parental responsibility in relation to counselling and seeking
his views. In Re C, the court emphasised the fact that the adoption agency cannot
simply act on the information given by the mother; it must critically examine what she
says and it will be a question of judgment as to whether this needs to be checked or
corroborated. It is important that the agency make it clear to the mother that
disclosure is a matter for the agency’s or court’s discretion and therefore that agency
1
The case was heard under the 1976 Act and the Adoption Rules 1984. The Family Procedure
Rules 2010 allows the court to direct that any person be made a respondent to proceedings. Chapter 2
45
must be careful not to give any undertakings as to whether or not the father will need
to be notified of adoption proceedings.
39. The paramount consideration for the agency must be the child’s welfare.
Where the agency considers that it is appropriate – i.e. that it is in the child's best
interests - the agency must take all reasonable steps to trace and counsel the child's
unmarried father, if his identity is known. In the case of Re C, the Court of Appeal
held that it was not automatically ‘appropriate’ for the agency to seek to make
contact with the father solely in order to obtain background information.
40. If the father's identity cannot be established, the agency should seek legal
advice. Each individual case will need to be considered and legal advice sought.
One option would be to seek a direction from the court on whether it is lawful to
place the child for adoption without consulting the father. Another option, available
only to local authorities, is to apply for a placement order where the local authority
considers that the requirements for section 31of the 1989 Act are met (conditions for
making a care order threshold criteria). The latter approach has the merit of enabling
the court to consider the circumstances of the case and reach a decision on whether
the child should be placed for adoption. Where a VAA is approached in such a case,
where there may be grounds for an application for a placement order, it should notify
the local authority. If the local authority considers that the child should be placed for
adoption, (and the section 31 requirements are met) it should apply for a placement
order.
41. If the agency is working with a father who does not have parental
responsibility it will be important to ensure that he is aware of his rights to apply for
parental responsibility and/or a residence or contact order, and understands the
importance of taking action without delay if he wishes to make any application. He
should be encouraged to seek legal advice if he is in any doubt about his position.
42. Where the mother gives consent to placement for adoption, or advance
consent to adoption, and subsequently marries the child’s father, the father would
acquire parental responsibility and thus become a parent within the meaning of the
1989 Act. However, sections 52(9) and 52(10) of the Act provide that, if the child is
placed, the father is deemed to have given his consent, although he may of course
later withdraw it, provided he does so before an application has been made to court
for an adoption order. Unless such a father withdraws his deemed consent, the
adoption process should continue.The Adoption and Children Act 2002
46
Relinquishment for adoption of children aged less than six weeks
43. Where a pregnant woman approaches the agency and indicates that her
intention is to relinquish the child for adoption, the agency should provide her with
pre-birth counselling. This counselling should include explaining the options for the
child’s future care:
staying with the parent or parents, with close support where possible.
Where the baby and mother are accommodated with foster carers,
trained to care for the baby and support the mother, the intention is to
help the mother overcome her anxiety and develop her parenting skills
and confidence so that she is able to care for the child;
short-term foster care, with the aim of returning the child with support;
long-term placement within the child's wider family; or
placement for adoption.
44. The mother should be given an explanation of the procedures for both placing
her child for adoption and the adoption, and the legal implications of adoption. This
must include that her consent to her child’s adoption will not be effective until six
weeks after the child’s birth. See paragraphs 88-92 for the consent procedures in
such cases. The agency should ascertain and record her wishes and feelings.
45. The agency should also provide pre-birth counselling and ascertain the
wishes and feelings of the expected child’s father. Where the agency knows the
father’s identity and is satisfied it is appropriate to do so, the agency should also
counsel him and any other person the agency considers relevant to the child, and it
should ascertain their wishes and feelings. AAR 14 should be followed, where it is
reasonably practicable for the agency to do so.
46. The agency should consider the care options for the child and where it
considers that adoption is the preferred option it should:
commence the CPR and the health report;
arrange for the agency medical adviser and adoption panel to be ready to
consider the case as soon as possible after the child is born; and
begin family finding so that the baby can be placed for adoption with
prospective adopters once the decision-maker has decided that the child
should be placed for adoption and placed with those specific prospective
adopters.Chapter 2
47
47. When the child is born, the agency should counsel the mother, and where it is
reasonably practicable and the agency considers it appropriate, the child’s father, to
ascertain whether they still wish to relinquish the child for adoption. If they do, the
agency should immediately complete the CPR needed for the adoption panel to
consider whether the child should be placed for adoption and, where this is the case,
whether the child should be placed with particular adopters. With enough
preparation the adoption panel should be ready to consider the case within a day or
so of the birth (see also chapter 4 paragraph 33).
Obtaining information about the child and the child’s family: AAR 15 and
16
48. AAR 15 and Parts 1 and 2 of Schedule 1 set out the agency’s duties in
respect of gathering and recording information about the child, and AAR 16 and Part
3 of Schedule 1 do so in respect of information about the child’s family. As
mentioned in paragraph 13 above, in the case of a child who is already looked after,
much of the information that will be needed will already have been gathered, so that
it should be possible to comply with the recommended time scale set out in
paragraph 2.
Health assessment
49. If the child is already looked after, there will have been a health assessment
under regulation 7.1 of the Care Planning, Placement and Case Review (England)
Regulations 2010 and a report of this assessment in accordance with those
regulations. Once the agency is considering adoption for the child, it should
immediately consult its medical adviser to ascertain whether the health information
already obtained is sufficient, and sufficiently up to date, to fulfil the requirements of
the regulations and the need for full information for the child, the adoption
panel/decision-maker and the prospective adopter.
50. Where a new health assessment is needed, this should be organised in
sufficient time to allow the medical adviser to complete their part of the CPR. Delay
in commissioning any necessary examination and further report could make it
impossible to comply with the timescales for the completion of the CPR. If the
agency does not have parental responsibility for the child, and the child is too young
to consent on their own behalf to a health assessment, the consent of a parent or
guardian will be needed. The cooperation of parents will also be needed to obtain
the fullest possible information about the health history of the child (including
prenatal and neo-natal health) and family. AAR 15.4 provides that if the child is of
sufficient understanding and refuses to submit to medical examinations or tests the
adoption agency is not obliged to make arrangements for these.The Adoption and Children Act 2002
48
Access to health information
51. The primary legislation that governs access to health information is the Data
Protection Act 1998 (the 1998 Act). This Act and its regulations provide that an
application for access to medical health records may be made to the family doctor,
for example, by:
the patient
a person authorised in writing to make the application on the patient's behalf
a person having parental responsibility for the patient, where the record is
held in England or Wales and the patient is a child.
The latter would include an agency where it has acquired parental responsibility for
the child, such as with an interim care order, care order or placement order.
52. The 1998 Act also provides that access shall not be given to the health record
that, in the opinion of the record holder, would disclose:
information likely to cause serious harm to the physical or mental health of the
patient, or of any other individual. See the Data Protection (Subject Access
Modification) (Health)) Order 2000; or
information relating to or provided by an individual, other than the patient, who
could be identified from that information and who has not consented to the
disclosure. See section 7(4) of the 1998 Act.
The Department of Health
1
and the British Medical Association
2
have issued
guidance on confidentiality and disclosure.
53. As part of their counselling, the agency should explain to the child's parents
why it needs access both to the child's medical records and to their medical records
and why further examinations or tests could be beneficial. While the parents retain
sole parental responsibility for the child, the agency will need their written, informed
consent to apply for access to the child's medical records and their written consent to
apply for access to their medical records. Health information about the birth parents,
1
Confidentiality: NHS Code of Practice
2
Confidentiality and disclosure of health information tool kitChapter 2
49
their children and other third parties cannot be recorded or shared without explicit
consent and there is no secure basis in law for overriding a refusal to give consent.
54. Where the agency is seeking to obtain the parent’s written consent, the
agency should emphasise the importance of health information and the central role it
plays in anticipating and providing for the child's current and future health needs. The
agency should also provide the parents or guardian with reassurances that any
information obtained about them will be safeguarded to protect its confidentiality,
including written information about its arrangements for protecting information. The
1998 Act requires that data subjects are provided with 'fair processing information'.
This consists of information on who holds the data, to whom it will be disclosed, how
long it will be held for, what it will be used for, and any other information which may
be relevant.
55. Where a parent lacks the capacity to give consent to disclosure of health
information about themselves or the child, reference should be made to the code of
practice issued under the Mental Capacity Act 2005.
56. In planning arrangements for accessing and disclosing health information, the
agency should consult its medical and legal advisers in advance, as they can help to
ensure the agency's policies and procedures accord with the 1998 Act and the
medical profession's ethical guidelines and practice. The agency should also ensure
that it complies with the NHS Confidentiality Code of Practice, which is based on the
common law of confidentiality, the 1998 Act, and other areas of law surrounding
confidentiality.
Child’s permanence report: AAR 17
57. The CPR is prepared where the agency considers, in the light of all the
information it has gathered, that adoption is the preferred option for the child’s
permanence. The social worker who knows the child best should compile the CPR
provided they meet the requirements of the Restriction on the Preparation of
Adoption Reports Regulations 2005 (ARR). Guidance about the ARR is given in
chapter 1.
58. The CPR must include all the information about the child and their family and
a summary by the agency’s medical adviser on the state of the child’s current
physical and mental health and behaviour and, if age appropriate, a developmental
assessment, their health history and current and future heath care needs. The
detailed health reports are only submitted to the adoption panel if the medical
adviser considers that this is necessary (see chapter 1, paragraph 7). The agency
should make the medical adviser aware of all medical information about the child
and their family. The Adoption and Children Act 2002
50
59. The accuracy of the CPR is essential, since it will not only form the basis on
which decisions are made about whether the child should be placed for adoption but
will also assist the agency in matching the child with an appropriate prospective
adopter, and will be the source of the information about the child on which the
prospective adopter will rely. In due course the child, on reaching adulthood, will be
able to request a copy of the CPR under the AIR and may have to rely on this
document as the principal source of information about their pre-adoption history.
60. It is important therefore that the information contained in the CPR is checked
against the original sources of information. Those parts of the CPR that contain
factual information about the birth family should be shared with the relevant family
members to enable them to confirm their accuracy and agree to it being passed on
to the child in due course. Any such agreement should be clearly recorded on the
child’s case record. Each of the child’s parents should also be shown those parts of
the CPR which set out their views and wishes, and given the opportunity, if they so
wish, to express these in their own words. Where writing is not their preferred means
of communication, they could be assisted to express their wishes by other means
such as an audio-recording. Where the child is old enough, they should also be
encouraged to confirm that their views have been accurately stated. The CPR should
make it clear whether the parents have seen the CPR, or parts of it, and include any
comments they have expressed on it.
61. The CPR must contain an analysis of the options that have been considered
by the agency for the future care of the child, and explain why adoption is considered
the preferred option. In some cases, particularly those involving older children who
may have experienced many problems, it may be that the best chance of finding a
satisfactory long- term placement for a child is to keep open the options of placement
with either adoptive parents or with long-term foster carers, so that the net may be
cast as wide as possible. In the case of SB v a County Council, Re P [2008] EWCA
Civ 535, the court confirmed that it is permissible for the agency to pursue a dual or
parallel plan. This is to be distinguished from concurrent planning. This enables the
agency, where it considers the child should be placed for adoption, to start seeking
adoptive and foster parents at the same time. In this case the adoption panel will
recommend that the child should be placed for adoption while, at the same time,
acknowledging that the fostering plan may be pursued
62. AAR 16, as well as listing the items of information to be included in the CPR,
requires that it contain any other information which the agency considers relevant
and helpful. The social worker will need to think carefully about which documents
should be sent to the adoption panel or decision-maker. It is unhelpful to them to
receive hundreds of pages through which they have to sift to find the important
information, so a summary of the information, agreed by all parties, should be
provided to them. The full reports must, however, be available to them.Chapter 2
51
63. Where court proceedings are taking place, it is important that the children’s
guardian’s views are conveyed to the decision-maker, particularly if these differ from
those of the local authority. There may also be expert reports available which have
been prepared in connection with the court proceedings. Although this may
sometimes give rise to difficulties of timing, it is essential that these or a summary
(agreed between the local authority’s legal adviser and the other parties to the
proceedings) be made available to the decision-maker..
Referral to the adoption panel or decision-maker
64. From 1 September 2012 the agency will refer a child’s case direct to the
adoption panel for a recommendation in certain circumstances. All other cases will
be referred direct to the agency decision-maker for a decision. The following table
sets out to whom the case must be referred. The adoption panel and the decisionmaker should be sent the same reports and information as each other except that all
medical reports and information referred to in AAR 17.2D.ii and iii must be sent to
the decision-maker. See chapter 1, paragraph 7.
Circumstances Refer to
adoption
panel
Refer direct
to decisionmaker
without
referral to
adoption
panel
Authority to
place:
Apply for
placement order
or
Obtain parental
consent
1. Child voluntarily
accommodated or
relinquished for adoption
and the birth parent has
indicated they will consent
to their child being placed
for adoption - no court
scrutiny of the agency’s
adoption plan [sections 18
and 19 of the Adoption and
Children Act 2002]
Yes No Parental consent
2. Care order made and the
birth parent has indicated
they will consent to their
child being placed for
adoption – no court
scrutiny of the agency’s
adoption plan [section
22(3) of the 2002 Act]
Yes No Parental consentThe Adoption and Children Act 2002
52
3. Care Order made and the
birth parent has indicated
they will consent to their
child being placed for
adoption, but the agency
considers there is a
possibility that the birth
parent will change their
mind and not give their
consent [section 22(3) of
the 2002 Act]
Yes No
Although this table says to
refer the case to the adoption
panel, the case could be
referred direct to the decisionmaker to decide whether the
child should be placed for
adoption if there is strong
evidence that the birth
parents will change their mind
and not give their formal
consent. In deciding which
course of action to take, the
agency must take into
account the effect on the child
of any unnecessary delay.
Parental
consent/Placement
order
4. The child is placed for
adoption by the local
authority or is being
provided with
accommodation by them
and the agency is not
authorised to place the
child for adoption and the
child has no parents or
guardians or the local
authority considers that the
conditions in section 31(2)
of the Children Act 1989
applies [section 22(1) of
the 2002 Act]
No Yes Placement order
5. Care proceedings in
progress [section 22(2)(a)
of the Act]
No Yes Placement order
6. Care order made and birth
parent has indicated that
they will not give consent to
their child being placed for
adoption [section 22(2)(b)
of the 2002 Act]
No Yes Placement orderChapter 2
53
Note: The above applies equally to a looked after child who is to be adopted by
prospective adopters from overseas (either by obtaining an order of the court under
section 84 of the 2002 Act or by adopting the child in England or Wales under the
terms of the Hague Convention (1993 Convention On Protection Of Children And
Co-Operation In Respect Of Intercountry Adoption).
The adoption panel: AAR 18
65. Following referral of a case the adoption panel is required to consider it and
make a recommendation on whether the child should be placed for adoption. Where
it considers that it has insufficient information it should request the agency to obtain
further information and the agency must comply with this request. The panel must
also obtain legal advice in relation to the case. Advice to the panel may be given
orally and in writing. As well as legal advice, the panel may wish to call for advice
from those with relevant knowledge, such as specialists in education or child and
adolescent mental health. To reduce delay the agency should liaise with the panel
to ascertain what information it is likely to need in advance of the panel meeting.
66. If the adoption panel does recommend that the child should be placed for
adoption, it must also consider and may give advice to the agency about:
the arrangements that the agency proposes in respect of contact; and
whether an application should be made for a placement order under section
22(3) of the Act (where the agency is a local authority).
Agency decision: AAR 19
67. Some children’s cases will continue to be referred to the adoption panel for
consideration and recommendation on whether they should be placed for adoption,
but from 1 September the majority of cases will be referred directly to the decisionmaker (see paragraph 64). Where a case has been referred to the decision-maker
following the consideration and recommendation of the adoption panel, the decisionmaker may express a view on any advice given by the panel with regard to contact
or the application for a placement order, with any views expressed recorded on the
child’s case record. See chapter 1 for guidance on the action the decision-maker
must take in making the decision.
68. If the decision is that the child should not be placed for adoption, the agency
must convene an urgent review to consider alternative plans.
69. If the decision is that the child should be placed for adoption, the child’s social
worker should alert the family finding team so that they can step up their search for
adoptive parents and the local authority’s legal advisers if a placement order is The Adoption and Children Act 2002
54
required. See chapter 8 paragraph 3. Local authorities should not wait until a
placement order is made before starting their family finding work. To do so
would cause unnecessary delay for the child.
Adoption Register
70. Agencies are required to refer children to the Adoption Register when they are
not actively considering a local match for the child, i.e. being in the process of
exploring a potential match with a named prospective adopter. Referrals can be
made either when the agency’s decision-maker has decided that the child should be
placed for adoption or after three months of that decision during which the agency
had unsuccessfully sought a local or consortium match. If legal proceedings are
ongoing at this stage, and the child is subject to an interim care order, referral to the
Adoption Register can be made provided the necessary consents and the court's
agreement have been obtained. See the case of Re K (Child) (Adoption: Permission
to advertise) [2007] EWHC (Fam) 544.
71. Agencies must ensure that the information the Adoption Register holds on the
children is up to date. Any change in the child’s circumstances must be notified to
the Register.
Consent to placement for adoption
72. Section 19 of the Act provides that a parent may consent to the placement for
adoption of their child, and that this consent may be to placement with any
prospective adopter chosen by the agency, or to a specific prospective adopter. In
the latter case, the consent may (but is not required to) provide that, in the event of
the placement with a specific prospective adopter being terminated before an
adoption order is made, the agency may place the child with a prospective adopter of
its own choosing.
73. Section 20 of the Act provides that a parent, who gives consent to the child
being placed for adoption, may also give their advance consent to the making of an
adoption order. At the same time they will have the option of making a statement
that they do not wish to be informed of any application for an adoption order
(although they may retract such a statement later). This situation could arise where
a parent has requested their child be adopted and is clear that they wish to have no
further involvement with the plans for the child. If such a statement is made, AAR 12
requires that this is recorded on the child’s adoption record and at the same time file
a copy at court.
74. The agency must explain to the parent the consequences of giving consent to
placement, in particular the fact that a withdrawal of their consent will be ineffective
once an application has been made for an adoption order (which could be made any Chapter 2
55
time after the child has lived with the prospective adopter for 10 weeks). They should
also ensure that the parent understands the position about contact and the
provisions of section 26 of the Act.
75. Where a parent wishes to give consent to the placement of their child with a
specific prospective adopter, that person must be identified in the form of consent.
There may however be some cases where the prospective adopter’s identity is to
remain anonymous. That prospective adopter will make use of the procedure in the
court rules for using a serial number rather than their name on any notice of the
application sent to the parents. In such a case, the characteristics and circumstances
of the prospective adopter will have been described to the parents, and it is
important that the agency is able to identify them by means of a file reference which
is provided to the person responsible for witnessing consent.
76. The agency should explain to the parent the procedure for the formal
witnessing of consent. They should provide the parent with contact details for the
social worker and any support worker to enable the parent to get in touch if they
have any queries, or if they are considering withdrawing their consent. They should
also emphasise to the parents the importance of their keeping the agency informed
about their own whereabouts. This will benefit not only the parent receiving
information about their child’s progress, but also the child as it will help avoid
possible delays in notifying the parent when the adoption application is made to
court.
77. Consent is given on one of the forms A100 to A103 under the Family
Procedure Rules 2010 and must be witnessed in accordance with those Rules.
Where the parent or guardian who is willing to consent is resident in England or
Wales, the provisions of AAR 20 apply, and a CAFCASS officer (if the child lives in
England) or Welsh family proceedings officer appointed by the National Assembly for
Wales (if the child lives in Wales) will witness consent.
78. AAR 20 requires the agency to request that CAFCASS appoint an officer, or
to request that the National Assembly for Wales appoint a Welsh family proceedings
officer, to witness the parent’s or guardian’s consent to placement or to adoption,
prior to court proceedings. AAR 20 also stipulates that the agency send with that
request the information specified in Schedule 2. The Association of Directors of
Children’s Services and CAFCASS have agreed a protocol for dealing with consent
(Protocol for Children relinquished for Adoption: August 2007).
79. In making the request for a CAFCASS officer to witness consent, the agency
should write to the CAFCASS office that is nearest to the parent’s or guardian's
address.The Adoption and Children Act 2002
56
80. For consent to be effective, the CAFCASS officer will need to be satisfied that
the parent or guardian fully understands the consequences of giving consent and
that they are willing to do so unconditionally (section 52(5) of the Act). The
CAFCASS officer will then need to witness the formal signing by the parent or
guardian of the consent to placement form, sign the form themselves and then notify
the agency in writing, including the consent form with the notification. The CAFCASS
officer must keep a copy of the original form.
81. The agency must place the original consent form on the child’s adoption case
record, and must be ready to provide it to the court - delivering it by hand or sending
it by recorded delivery - when the prospective adopter make their application to the
court for an adoption order. A copy of the consent form will not be acceptable. Any
notice that the parent does not wish to be informed of an application for an adoption
order, or withdrawal of such a statement, must also be kept on the child’s case
record.
82. Where the CAFCASS officer is not satisfied that the parents wish to give their
full consent, or has doubts that they fully understand its implications, or considers
that they are not competent to give consent, they will be directed by CAFCASS
guidance to notify the agency. In these circumstances consent cannot be given, and
it will be necessary to make an application for a placement order.
83. Where a parent or guardian lives outside England and Wales and is prepared
to give their consent, the agency is required by AAR 20A.1 to arrange for an
‘authorised person’ to witness the consent. The agency is also required to send to
that person the information specified in Schedule 2. AAR 20A.2 stipulates that an
authorised person is:
in Scotland, a Justice of the Peace or a Sheriff
in Northern Ireland, a Justice of the Peace
outside the United Kingdom:
o any person authorised by law in the place where the consent is
given to administer an oath for any judicial or other legal purpose
o a British consular officer
o a public notary or
o an officer holding a commission in any of the regular armed forces
of the Crown.Chapter 2
57
84. Once formal witnessed consent is given, the agency is authorised to place the
child for adoption. Once the procedures set out in chapter 4 have been complied
with, it will therefore be possible to place the child with a prospective adopter. Even if
consent is given, the agency should consider whether it can rely on the parent’s
consent remaining in place. If there is a question of placing the child outside the
British Islands, the procedures set out in the Adoptions with a Foreign Element
Regulations 2005 and the guidance on intercountry adoption must be followed.
‘Consent’ where the child is under six weeks old
85. Section 52(3) of the Act makes it clear that any consent to adoption given by a
mother before her child is six weeks old is ineffective. Special provision is therefore
made for those cases where it is desirable to place a child as soon as possible, but
formal consent to adoption must not be sought before the child is 6 weeks old.
86. Where the agency decision-maker decides that the child should be placed for
adoption and the parent has been notified, the agency must not seek at this stage to
obtain the formal consents to placement for adoption or to adoption using the
prescribed forms under sections 19 and 20 of the Act. But the agency is permitted to
ascertain, after careful counselling, whether the parent is prepared to agree to the
child being placed for adoption with a prospective adopter identified in any
agreement, or with any prospective adopter who may be chosen by the agency, and
to enter into an agreement with the agency in the form set out below, see AAR 35.4.
This would not apply to any case where care proceedings were in train. In the case
of A Local Authority v GC [2008] EWHC 2555 (Fam), the court found that a mother
who signs an agreement to placement during the 6 week period and then changes
her mind, does not need leave to oppose the adoption. A CAFCASS officer should
not be asked to witness consent during the six week period.
87. The agency should provide additional counselling for the parent or guardian
where it is seeking to obtain their signed agreement to the placement for adoption of
their child aged under six weeks. The agency should make it clear orally and in
writing that:
the parent or guardian retains full parental responsibility until:
o they give their consent under section 19 of the Act, after the child
reaches the age of six weeks
o a placement order is made or
o an adoption order is made,
the parent or guardian may only have contact with the child by agreement with The Adoption and Children Act 2002
58
the agency or by order of the court;
if the parent or guardian asks for the child to be returned, the child must be
returned by the agency unless any of the following orders are applied for or
made in relation to the child:
o an emergency protection order or a care order under the 1989 Act
o a placement order or an adoption order under the Act,
after the child is six weeks old, the agency will seek to arrange for them to
give their formal consent to the child being placed for adoption.
88. Subject to the agreement being signed, the agency may now place the child.
It should seek to maintain contact for the child with the parents and ascertain, when
the child reaches the age of six weeks, whether they are prepared to consent to:
placement of the child for adoption under section 19 of the Act with a
prospective adopter identified in the consent, or with any prospective adopter
who may be chosen by the agency; or
placement of the child for adoption under section 19 of the Act, as above, and
to the making of a future adoption order under section 20 of the Act.
89. If they are, then the steps set out in paragraph 49 onwards will need to be
followed. If they are not, and they request that the child be returned to them, the
agency must comply with that request unless there are grounds for seeking a
placement order, or instituting other proceedings.Chapter 2
59
AGREEMENT TO PLACE A CHILD FOR ADOPTION WHERE THE
CHILD IS LESS THAN 6 WEEKS OLD
Child’s name [ ]
Child’s date of birth [ ]
I, [ ]
of, [ ]
as the parent or guardian of the child state that:
I agree to the adoption agency placing the child for adoption with:
(a) the following prospective adopter(s):
name (or agency reference) [ ] (and)
name (or agency reference) [ ]; or
(b) any prospective adopters who may be chosen by the agency.
I understand that:
I may inform the adoption agency that I wish to withdraw my agreement
and ask for my child to be returned to me. If I do so, I may not myself
remove my child from the prospective adopters as this would be the
responsibility of the agency, which must comply with my request within
seven days, unless any of the following orders are applied for or made in
respect of the child:
an emergency protection order or a care order under the
Children Act 1989;
a placement order or an adoption order under the Adoption and
Children Act 2002.
I retain parental responsibility for the child.
I may only have contact with the child by agreement with the agency or
by order of the court.
After the child is six weeks old, the agency will seek my/our formal The Adoption and Children Act 2002
60
consent to the child being placed for adoption.
Name and address of the adoption agency [
]
Name of the adoption agency social worker and contact details [
]
If you are in any doubt about your legal rights, you should obtain legal advice before
signing this form.
1
Signed …………………………………………..
Date ……………………………………………..
Witnessed ………………………………………
Date ……………………………………………..
1
Publicly funded legal advice may be available from the Community Legal Service.
You can get information about this or find a solicitor through CLS Direct on
www.clsdirect.org.uk or by telephoning 0845 345 4345.Chapter 3
61
Chapter 3: Preparing, assessing and approving prospective
adopters
This part of the guidance explains the duties of an adoption agency in respect
of prospective adopters.
Timescales
1. The following timescales should generally be adhered to during this part of the
adoption process:
written information about the adoption process should be sent within five
working days to the enquirers in response to their enquiry;
the enquirers should be invited to an adoption information meeting or be
offered an individual interview by the agency within two months of their
enquiry;
the adoption panel should receive all necessary information about the
prospective adopter from the agency within six weeks of the completion of the
prospective adopter’s report; and
the adoption panel’s recommendation about the suitability of the prospective
adopter to adopt a child should be made within eight months of the receipt of
their formal application.
2. Where the agency is unable to comply with a timescale, or decides not to, it
should record the reasons on the prospective adopter’s case record. This might
occur, for example, where information needed by the agency is delayed, or where
the prospective adopter and the agency agree that more time is needed to complete
preparation or an assessment.
3. The agency should monitor its performance and provide reports to its trustees
or board members if it is a voluntary adoption agency (VAA) or the executive side of
the local authority every six months about children who are in the care of their local
authority and who are waiting to be placed with new families. These reports should
include:
the number, type and age of the children waiting for an adoptive placement
and length of time they have been waiting;
the agency’s performance against the timescales set out in paragraph 1
above and chapter 1; The Adoption and Children Act 2002
62
progress in the recruitment of suitable adoptive families;
the number of children placed for adoption and adopted since the last
report; and
the number of children whose placement has disrupted or where there has
been a change of plan and the child is no longer to be placed for adoption.
Eligibility criteria
4. A person or couple cannot apply for an assessment of their suitability to adopt
unless they meet, or would meet, the eligibility criteria to apply for an adoption order.
The criteria is:
the prospective adopter(s) is single, married, in a civil partnership or are
an unmarried couple (same sex or opposite sex) and 21 years old;
the prospective adopter or one of the prospective adopters is domiciled in
the British Islands and have been habitually resident in the British Islands
for at least a year before they apply to the court for an adoption order;
and
neither prospective adopter(s) nor an adult member of their household has
been convicted or cautioned in respect of a specified offence.
Establishing Domicile and Habitual Residence Status
5. Domicile and habitual residence are legal concepts that are undefined and
subject to case law. Whether someone is domiciled or habitually resident in the UK
will depend upon all the circumstances and facts of an individual case. Wherever
there is an issue about the domicile and habitual residence status of an individual,
they should seek their own independent legal advice. The adoption agency may
also wish to seek legal advice.
6. A person is domiciled in the country in which they either have or are deemed
to have their permanent home. In law, everyone must have a domicile, and can only
have one domicile at any time. A person receives at birth a domicile of origin which
remains their domicile, wherever they go, unless and until they acquire a new
domicile (a domicile of choice). A person may acquire a domicile of choice by
residing in a country other than their domicile of origin with the intention of continuing
to reside there indefinitely. The intention that must be shown is the quality of
residence. It is not sufficient for there to be an intention to reside in a country for a
fixed period of time or until some clearly foreseen and reasonably anticipated event
happens.Chapter 3
63
7. Whether or not a person is habitually resident in the UK will depend on the
circumstances of their particular case and all facts must be considered. Habitual
residence will not solely be determined by the place where a person is living at the
time. The term indicates the quality of residence rather than mere duration and
requires an element of intention. The term suggests that personal presence must
continue for some time. Many factors must be taken into account, including bringing
possessions, doing everything necessary to establish residence before coming,
having a right of abode, seeking to bring family, and “durable ties” with the country.
8. There is no requisite period of residence. Someone who leaves the UK in
order to take up employment elsewhere may well acquire habitual residence in
another country. However, they may well retain habitual residence in the British
Islands because of the type of links they have maintained.
9. It is also possible to be habitually resident in two countries at the same time.
Factors such as possession of a property, type of employment contract, financial
arrangements and location of bank accounts, and local connections are just some of
the many factors that may be relevant to any question relating to habitual residence.
Recruitment
10. The agency should develop a plan for recruiting and preparing sufficient
prospective adopters who can meet the needs of children waiting for adoption. In
developing this plan the agency should take into account past trends, anticipated
needs, local consortia plans and information from research and the Adoption
Register. The plan should help the agency focus its recruitment on groups of
prospective adopters and to prioritise applications according to the needs of children
waiting for adoption.
11. The work of recruiting suitable parents for older children, disabled children,
black and minority ethnic (BME) children and children in sibling groups is an ongoing task of adoption agencies. Agencies should make good use of other adoption
agencies – local authorities and VAAs - consortia and the Adoption Register (see
chapter 4).
12. Programmes specifically aimed at developing and sustaining recruitment of
prospective adopters from minority ethnic backgrounds will need to be part of the
recruitment strategy of the local authority adoption service. Local authorities with
small numbers of BME children may well find it better use of their resources to
commission a VAA to find families for these children.
13. Building and maintaining links with communities, some of which do not have
a tradition of parents adopting children unrelated to them, may help to increase the The Adoption and Children Act 2002
64
number of prospective adopters from a wide range of minority ethnic backgrounds.
The importance of increasing the recruitment of BME prospective adopters is
underlined by Selwyn et al (2008). Their study
1
of the care pathways of white and
BME children showed that age and ethnicity are the two major determinants of
adoptive placements. BME children had fewer prospective adopters showing
interest in them and, if no placement could be found, their plans tended to be
changed away from adoption at an earlier point than for their white counterparts.
Informing and counselling: AAR 21
14. Potential adopters should be made to feel that their enquiry is welcome.
When a couple or individual contact the agency and indicate an interest in adopting a
child, the agency should respond impartially and provide them, within five working
days, with general information about adoption, the eligibility criteria, children who
need adoptive families, the agency's expectations of adopters, and where to obtain
further information. Prospective adopters must not be automatically excluded on the
grounds of, for example, their ethnicity, age, health (including whether they smoke or
are overweight), sexual orientation, religious beliefs or because they do not share
the same ethnicity, culture or religious beliefs with the children waiting for an
adoptive family. Prospective adopters may only be excluded if they do not meet the
criteria set out in paragraph 4. See also the practice guidance Preparing and
assessing prospective adopters.
15. Where the agency is not recruiting or knows that it will not have the capacity
to undertake assessments in the immediate future it should refer enquirers to
another agency which is recruiting or tell them when it will be possible to proceed
with the assessment. Agencies will need to keep in touch with each other so that the
enquirer does not become demoralised because of the apparent lack of progress
and become “lost to adoption”.
16. Agencies must not turn away potential adopters whose ethnicity and culture is
not shared with those of the children waiting to be placed with adoptive parents.
While children do tend to do better if adopted by a family who shares their ethnic
origin or cultural group, these are just one of many considerations and must not be
the primary consideration. A prospective adopter is able to parent a child with whom
they do not share the same ethnicity, provided they can meet the child’s other
identified needs. The agency must provide them with flexible and creative support.
This applies equally whether a child is placed with a black or minority ethnic family, a
white family, or a family which includes members of different ethnic origins. It is
unacceptable for a child to be denied adoptive parents solely on the grounds
1
Selwyn, J., David Quinton, D., Harris, P., Wijedasa, D., Nawaz, S., Wood, M., (2008) Pathways to
permanence for children of black, Asian and mixed ethnicity: dilemmas, decision-making and
outcomesChapter 3
65
that the child and prospective adopter do not share the same racial or cultural
background. See chapter 4 for further information on matching considerations.
17. Agencies must not turn away potential adopters because of their age. There is
no upper age restriction on applying to become adoptive parents, but there is a
minimum age of 21 years. Age is one consideration among many to be taken into
account in assessing the suitability of prospective adopters. Older and more
experienced people could take on the care of older children, provided they enjoy
sufficient health and vigour to meet the child’s varied demands. The more mature
person has a greater experience of life; some may be established in their careers and
others may have already brought up children of their own and have developed good
parenting skills.
18. Age is also necessarily linked to general health, fitness and emotional
wellbeing. Some older people may score higher in this regard than some younger
ones. Adoption agencies are expected to recruit adoptive parents who will have the
health and vigour to meet the many and varied demands of children in their growing
years and be there for them into adulthood. The agency’s medical adviser should
investigate and obtain relevant information about a prospective adopter’s health in
order to be satisfied that they are able to take on the task of adopting a child and has
the expectation of caring for the child through childhood and into adulthood.
19. Where the enquiry is about intercountry adoption the agency should try to find
out why they have not considered adopting a looked after child. Many people
believe that they would not be able to adopt a child in this country. It is important that
agencies dispel the many myths around domestic adoption. While intercountry
adoption is permitted, the agency’s primary role is to find adoptive families for the
looked after children in England. People whom the agency feels may be unsuitable
to adopt looked after children the agency is responsible for should not be advised to
apply to adopt a child from overseas.The Adoption and Children Act 2002
66
PREPARING AND ASSESSING PROSPECTIVE ADOPTERS
Informing and counselling
AAR 21
Considering applications
AAR 22
Police checks
AAR 23
Preparation
AAR 24
Preparing prospective adopter’s report and other
reports
AAR 25.1 to 25.7
Providing prospective adopter with copy of the
prospective adopter’s report, inviting their
comments, and sending the report to the
adoption panel
AAR 25.8 to 25.9
Adoption panel considers the case, makes
recommendation and gives advice
AAR 26
Agency decision maker’s role
AAR 27.1 to 27.2
Agency decides to
approve and notifies
prospective adopter
AAR 27.3
Agency determination not to
approve, notification, and
possible review by adoption
panel or review panel
AAR 27.4 to 27.8
Agency decides not to
approve and notifies
prospective adopter
AAR 27.9
Where child not placed with
prospective adopter, agency
reviews approval and may
submit a review report to the
adoption panel
AAR 29
Matching and placement
See guidance for Part 5 of
the AARChapter 3
67
20. If after receiving initial information the enquirers wish to proceed the agency
must provide further information and counselling. See the practice guidance
Preparing and assessing prospective adopters. They should be invited to participate
in group information meetings to hear from and talk to adopters about their
experiences of parenting a child and the adoption process. They should then have a
much better idea of their potential and may broaden the range of children they feel
able to consider once they have a greater understanding of what is involved.
21. Counselling should enable the prospective adopter to consider whether they
do want to adopt a child and to reflect on the parenting needs of children the agency
has placed for adoption or of children who need adoption. It will also enable the
prospective adopter to consider their expectations of adoption and the
consequences for them and their family of caring for an adopted child who may have
a range of complex needs.
22. The agency should provide the following information to the prospective
adopter during the counselling, both orally and in writing:
general details of children the agency has placed for adoption or of
children who need adoption, such as their age ranges, backgrounds and
characteristics;
how to apply to the agency for an assessment of their suitability to adopt;
what happens when an application is accepted by the agency, including an
explanation of why checks, references and full health information are
needed;
the decision-making process and their rights to make representations to
the agency or apply for an independent review if they are considered
unsuitable to adopt;
adoption support and the matching process including the use of the
Adoption Register.
23. The agency should explain the importance of openness and full disclosure by
the prospective adopter at all times - that matters they perhaps consider unimportant
may be of greater significance than they realise, and that it is therefore important that
they are willing to share everything. Nevertheless, the agency should not assume
that a failure to disclose information that it considers relevant automatically implies
that the prospective adopter is unsuitable. It will be necessary to discuss the matter
and the reasons for non-disclosure. See Hofstetter v London Borough of Barnet and
IRM [2009] EWHC 3282 (Admin).The Adoption and Children Act 2002
68
24. Foster carers who express an interest in adopting children in their care or
prospective adopters expressing an interest in a specific child should be given
advice about the fact that the adoption procedures apply in their case as in any
other. Biehal et al
1
found that outcomes for foster carer adoptions were, on the
whole, positive. Although foster carers have a legal right to institute their own
adoption application, the local authority should encourage them to participate in the
adoption agency process.
25. The foster carer needs to be aware about eligibility for adoption support, i.e. if
the foster carer applies direct to the court for an adoption order and the local
authority opposes the application, they and the child will be eligible under the
Adoption Support Services Regulations 2005 for counselling, advice and information
only. However, if the local authority supports the application to the court for an
adoption order, they and the child will be eligible for assessment of their adoption
support needs as the child is a looked after child. The agency’s duties in respect of
the provision of information and counselling and the application of timescales will be
the same as for other prospective adopters. It should be made clear to foster carers,
or those who apply to be approved for specific children, that their assessment will be
in respect of their suitability as adopters generally and that, if they are approved,
their suitability to adopt a specific child or children will be addressed separately as
part of the matching process.
26. At an early stage, the prospective adopter should be given an explanation of
the need for the agency to conduct checks into their backgrounds and into the
backgrounds of any other adult members of their household. The agency should
make it clear that the prospective adopter cannot be considered suitable to adopt
where police checks – also known as enhanced CRB checks - identify them or an
adult member of their household as having been convicted of a specified offence or
police caution.
27. Some prospective adopters may have already been given information and
counselling. Even though the duty to provide information and counselling does not
apply if the agency is satisfied that another agency has fulfilled the requirements set
out in regulation 21 of the Adoption Agencies Regulations 2005 (AAR), the agency
should ensure that it provides information about its own policies and procedures.
1
Biehal, N., Elison, S., Baker, C., and Sinclair I. (2009) Adoption Research Initiative study
Characteristics, Outcomes and Meanings of Three Types of Permanent Placements - Adoption by
Strangers, Adoption by Carers and Long-Term Foster Care.Chapter 3
69
Considering applications and the prospective adopter’s case record:
AAR 22
28. The agency cannot initiate police checks under AAR 23, adoption preparation
under AAR 24 or the preparation of the prospective adopter’s report (including health
and other checks) under AAR 25, until it has provided the prospective adopter with
the agency’s application form and accepted the completed form. In deciding whether
to supply the application form, the agency should consider whether the prospective
adopter has been sufficiently counselled and informed. Once the application form
has been submitted, any determination by the agency not to approve the prospective
adopter, whether after submission of a full or brief prospective adopter’s report, may
be challenged by them by either making representations to the agency or applying
for an independent review.
29. Where the agency has complied with its duties under AAR 21 and received
the completed application form from the prospective adopter, it must set up a case
record in respect of the prospective adopter (“the prospective adopter’s case record”)
and consider their suitability to adopt a child. The application form itself will be part of
this case record. AAR 22 sets out the other contents of this record. AAR 39-43 and
chapter 6 of this guidance deal with the confidentiality and preservation of this and
other adoption case records.
Police checks: AAR 23
30. The safety and welfare of the child are paramount and it is vital that the
agency conducts police checks into the background of the prospective adopter and
any adult members of their household. Ideally, these are to be completed before the
agency commences the preparation and assessment of the prospective adopter.
Where the agency is aware of delays in obtaining the police checks they should not
delay the assessment but proceed in parallel with other checks and references, and
with the provision of preparation. However, the assessment cannot be concluded
and the prospective adopter’s report finalised until the police checks have been
completed, see AAR 25.7A.
31. Where an agency is not reasonably able to conduct police and other
background checks on the prospective adopter, for example, where they have lived
abroad for an extended period, it must decide whether it should carry out any other
checks or take up additional references. It should then decide whether it has
sufficient information to justify proceeding with the prospective adopter’s application.
If it decides not to proceed with the application, the agency should counsel the
prospective adopter with a view to them withdrawing their application.
32. An agency may not consider a person suitable to adopt a child if they or any
adult member of their household has been convicted of a specified offence The Adoption and Children Act 2002
70
committed at 18 or over, or has received a police caution in respect of a specified
offence which they admitted at the time the caution was given.
33. A “specified offence” means:
an offence against a child;
1
an offence specified in AAR, Schedule 3 Parts 1 and 2 (Part 2 lists
statutory offences which have now been repealed);
an offence contrary to section 170 of the Customs and Excise
Management Act 1979. This relates to goods which are prohibited to
be imported under section 42 of the Customs Consolidation Act 1876
(prohibitions and restrictions relating to pornography) where the
prohibited goods included indecent photographs of children under the
age of 16; or
any other offence involving bodily injury to a child, other than an
offence of common assault or battery.
34. Where an agency becomes aware that, because of an offence by a
prospective adopter or any adult member of their household, the prospective adopter
cannot be considered suitable to adopt a child, the agency must notify them as soon
as possible.
35. Information relevant to the prospective adopter’s application which the agency
has obtained from the Criminal Record Bureau may be retained by the agency on
the prospective adopter’s case record for a limited time only. This information should
be destroyed when the agency decides that the prospective adopter is suitable to
adopt a child, see AAR 27.3 and 27.8. The agency should note on the prospective
adopter’s case record that it has destroyed the CRB information and that this
information had led the agency to form a particular view, without citing the
information itself.
36. Where the police checks result in previous convictions or cautions for nonspecified offences coming to light, the agency may consider that the prospective
adopter is not suitable to adopt. Examples of some of these are set out in the
practice guidance Preparing and assessing prospective adopters. In these
circumstances, the agency must exercise its discretion and decide whether to
1
Within the meaning of section 26(1) of the Criminal Justice and Court Services Act 2000. However,
it does not include an offence that is contrary to section 9 of the Sexual Offences Act 2003 (sexual
activity with a child) where the offender was under the age of 20 and the child was aged 13 or over at
the time the offence was committed.Chapter 3
71
proceed with a prospective adopter’s application. If it decides not to proceed, a brief
report should be prepared.
37. In circumstances where the application is a joint application, the agency may
only inform the prospective adopter who is the convicted or cautioned individual of
the specific reason for terminating the application. The social worker should explain
to that person that the agency may not inform the other person of the conviction or
caution but will inform them that because of information obtained from the checks the
joint application cannot proceed. However, in counselling the person with the
conviction or caution, the agency may consider it appropriate to suggest that they
consider disclosing their conviction or caution to the other person so that that person
has a clear understanding of why the joint application cannot proceed.
38. Likewise, where the checks reveal information about another adult member of
the household that indicates that the agency should terminate the application, the
agency is restricted from disclosing the conviction or caution that prevents the
application proceeding. It may inform that other adult member of the household and
suggest that they inform the prospective adopter but it may not do so itself. In such a
case, the agency should counsel the prospective adopter that its checks indicate that
the agency should not proceed with their application.
Preparation, other checks and assessment: AAR 24 and 25
39. AAR 24 requires the agency to provide preparation for the prospective
adopter, and AAR 25 sets out the information that must be gathered – including
other checks - to enable the agency to complete the prospective adopter’s report.
Some flexibility is allowed about the sequence of tasks to be undertaken, but AAR
25.7A provides that the report cannot be completed until the police checks required
by AAR 23 and the preparation required by AAR 24 have been carried out.
40. AAR 24 requires the agency to make arrangements for the prospective
adopter to be given adoption preparation, unless it is satisfied that another agency
has fulfilled the requirements of this regulation. Some prospective adopters may
already have recent experience of caring for a child, as parents, foster carers or child
minders. Some may be applying to adopt for a second time. This regulation allows
the agency to decide the nature of the preparation that is most appropriate for the
prospective adopter. Adoption preparation may be provided by the agency itself or
by arrangement with another agency or adoption support agency. In order to
maximize the use of resources, and to avoid unnecessary delay, agencies should
consider whether they can make arrangements with neighbouring agencies to
provide joint preparation groups.
41. All prospective adopters will need some form of adoption preparation. The
agency will need to decide its form and substance, using the Standard Curriculum in The Adoption and Children Act 2002
72
the practice guidance Preparing and assessing prospective adopters. The agency
will also need to arrange preparation that takes into account the prospective
adopter’s circumstances. While group preparation should be the standard method
there may need to be some form of individual preparation for some prospective
adopters. Preparation should be designed to draw out their strengths – to discover
the qualities they have to offer a child and build on those strengths in working with
them. The preparation sessions should give encouragement to prospective
adopters, showing them the positive aspects of parenting a child as well as helping
them to understand, for example:
the difficulties some children experience, such as the traumas of
neglect and abuse, and the effect on their development and
capacity to form secure attachments;
the key parenting skills and parenting capacities they need to care
for children who have experienced neglect and abuse;
the significance of the child's identity, their birth family, the need for
openness to help the child to reflect on and understand their
history, according to their age and ability, the role of contact, how to
manage unauthorised contact, including through online social
networks, and the importance of significant memorabilia.
This work can be continued during the assessment process.
The prospective adopter’s report
42. AAR 25 sets out the duties of the agency in carrying out its assessment and
preparing the prospective adopter’s report. In conducting the assessment, the social
worker should analyse and consider the information they ascertain from and about
the prospective adopter, including any issues identified during the adoption
preparation. The approach should be objective and inquiring: information should be
evaluated and its accuracy and consistency checked. The practice guidance
Preparing and assessing prospective adopters provides advice on how to evaluate
the information. AAR Schedule 1 Part 4 lists the information that must be collected
during the assessment for inclusion in the prospective adopter’s report. The report
itself is one of those to which the Restrictions on the Preparation of Adoption Reports
Regulations 2005 (ARR) apply. See chapter 1.
43. The agency must obtain a written report from a registered medical practitioner
about the health of the prospective adopter following a full examination. The report
must include the matters specified in Part 2, Schedule 4 of the AAR, unless the
agency has received advice from its medical adviser that such an examination and
report is unnecessary. This might be, for example, where the prospective adopter is Chapter 3
73
a foster carer and the agency already has their health report.
Health issues
44. The agency’s medical adviser will need to provide a summary of the
prospective adopter’s state of health as part of the prospective adopter’s report. The
adviser will need to form a view as to the adequacy of the medical reports received
and they will be able to advise whether additional specialist opinion should be
obtained. It should be borne in mind that the prospective adopter’s current GP may
not have a full health history of the prospective adopter, particularly if they have
received private medical care outside the NHS. Prospective adopters should be
helped to understand the importance of making their full health history available to
the agency’s medical adviser.
45. Agencies have a duty to satisfy themselves that prospective adopters have a
reasonable expectation of continuing to enjoy good health. The medical adviser
should explain and interpret health information from the prospective adopter, their
GP, and consultants to facilitate panel discussion. The opinion of the agency’s
medical adviser needs to be given sufficient weight by panels and agency decisionmakers.
46. Mild chronic conditions are unlikely to preclude people from adopting provided
that the condition does not place the child at risk through an inability to protect the
child from commonplace hazards or limit them in providing children with a range of
beneficial experiences and opportunities. Agencies should bear in mind the
possibility of providing adoption support in appropriate cases to assist in overcoming
any possible negative consequences arising from disability or restricted mobility.
More severe health conditions must raise a question about the suitability of the
prospective adopter, but each case will have to be considered on its own facts and
with appropriate advice.
References
47. Schedule 4 of the AAR requires the prospective adopter to provide the names
of three referees, not more than one of whom should be related to them. The agency
must prepare a written report of the interviews held with each of the referees. To
ensure the accuracy of these reports it will be helpful to ask the referees to sign a
copy of the report indicating their agreement with its contents. They could also be
asked to indicate whether they agree that the information they have provided may be
shared with the prospective adopter. Practice guidance Preparing and assessing
prospective adopters provides advice on obtaining and considering references from
ex-partners and adult children of prospective adopters, and on the possible need for
additional referees in certain circumstances.The Adoption and Children Act 2002
74
48. The agency must ascertain whether the local authority in whose area the
prospective adopter has their home has any information about them that may be
relevant to the assessment. If so, the agency must obtain from that authority a
written report setting out the information. Local authorities being asked for this
information should comply promptly to these requests. In requesting information from
a local authority, the agency should seek to ascertain whether records held by social
services and education departments, including the child protection register, hold
relevant information about the prospective adopter. There is no reason in principle
why information held by one part of the local authority should not be shared with
another. Protocols operated by children’s services may, however, restrict access to
the child protection register to cases where there is concern for the safety of a child.
This means that an adoption check may not automatically involve a check to see
whether a child of the family has been the subject of a child protection plan unless
such a check is specifically requested. The prospective adopter may have lived for
only a short period in the area of their local authority. In such cases, the agency
should obtain information from the prospective adopter’s former local authorities.
Second opinion visits
49. The social worker who assesses the prospective adopter should draft the
report for the adoption panel highlighting any issues of concern, and submit it to their
team manager. Where there are any issues of concern or where clarification is
needed, the manager should arrange for a second person to visit the prospective
adopter to discuss these. The second person could be a team manager or another
adoption social worker. A visit by another person provides the opportunity for
securing a second opinion on the prospective adopter and their assessment before
the report to the panel is finalised. The author of the report and the countersigning
officer should both sign and date the report, state their qualifications and experience,
and confirm that they have complied with ARR 3.
Report to the adoption panel
Full prospective adopter’s report
50. AAR 25.5 sets out the contents of the prospective adopter’s report. Except in
cases where a ‘brief report’ is appropriate, the agency will present this to the
adoption panel, together with the other documents specified in AAR 25.9. The
agency must tell the prospective adopter that the case is to be presented to panel. It
must give them a copy of the prospective adopter’s report and invite them to send
their observations on that report within 10 days. The medical report and references
should not be sent to the prospective adopter. Once this time has elapsed or the Chapter 3
75
observations have been received earlier, the report and the prospective adopter’s
observations should be sent to the panel, together with the written reports of the
interviews with referees, the medical reports if advised by the medical adviser, and
‘any other relevant information’ obtained by the agency.
51. The other relevant information that the agency might obtain could include, for
example, confidential ‘soft information’ from police checks, also known as ‘Additional
Information’. This is information that a chief police officer has authorised for
disclosure to the agency under section 115(8) of the Police Act 1997. Such
information may not be disclosed to the person it is about but it needs to be
considered when disclosed to the agency. Where the agency has good reason to
withhold information from the prospective adopter, it should not share that
information with the panel. The exception to this is in the case of a joint application,
where it is not possible to share information about one partner with the other without
the consent of the partner to whom the information relates.
52. The panel may request additional information and the agency should obtain it
so far as reasonably practicable. Again, unless there is good reason to justify not
doing so, additional information obtained in this way should be shared with the
prospective adopter. In the case of R v London Borough of Newham (on the
application of A, T and S) [2008] EWHC 2640 (Admin) the Court of Appeal was
critical of the procedural unfairness of the agency’s providing additional social work
reports to the panel which were not shared with the prospective adopters.
Brief prospective adopter’s report
53. AAR 25.7 provides for cases where the agency’s assessment of the
prospective adopter, while still incomplete, reveals information that leads the agency
to consider that the prospective adopter may not be suitable to adopt. Under AAR
25.7 the agency may prepare a brief prospective adopter’s report (brief report) even
though it may not have obtained all the information required by AAR 25.
54. In brief report cases, it is likely that the information that suggests to the
assessing social worker that the prospective adopter may not be suitable will be
discussed during the course of supervision. A decision not to complete the full
assessment is a serious step to take and advice should first be sought from the
social work team leader or line manager. Depending on the nature of the information,
advice may also need to be sought from the agency’s medical adviser or legal
adviser, or both. The agency should explain its concerns to the prospective adopter
and offer counselling, involving other professionals as appropriate, for example
ensuring health professionals counsel the prospective adopter about information
related to their health. As a result of the counselling and advice, the prospective
adopter may decide to withdraw their application. If they decide not to withdraw their
application, the agency should prepare the brief prospective adopter’s report.The Adoption and Children Act 2002
76
55. As with the full report, a copy of the brief report must be given to the
prospective adopter who must be invited to send their views to the agency within 10
days. Once this time has elapsed or the views have been received earlier, the report
(and any information obtained under AAR 25.3 and 25.4) should be sent to the panel
together with the views expressed by the prospective adopter.
The adoption panel: AAR 26
56. Once a case has been referred to the panel, the panel must consider the case
and make a recommendation to the agency as to whether the prospective adopter is
suitable to adopt a child. Their recommendation will be governed by the duty under
AAR 26 to consider all the information passed to it, and under regulation 4.2 of the
Suitability of Adopters Regulations 2005 (SAR) to have proper regard to the stability
and permanence of the relationship of any couple whose case is referred. Where it
considers that it has insufficient information it should request the agency to obtain
further information and the agency must comply with this request. In the case of a
brief report, the panel will not be able to make a recommendation that the
prospective adopter is suitable, because not all the necessary information will be
before it. Its recommendation is restricted to a recommendation that the prospective
adopter is not suitable, or a request to the agency to complete a full prospective
adopter’s report.
57. The prospective adopter must be invited to attend a meeting of the panel
before it makes its recommendation. This invitation should be extended to the
prospective adopter each time the panel meets to discuss their case. The invitation
should make clear that the purpose of the meeting is to provide an opportunity for
both the panel and the prospective adopter to discuss and clarify the prospective
adopter’s reasons for wishing to adopt, and any other matter that either party
considers relevant to the application.
58. The invitation should also make clear that the prospective adopter is under no
obligation to meet the panel; if they decline the invitation this in itself should never be
considered as a reason for recommending that they are unsuitable to adopt. The
agency should at this time provide the prospective adopter with advice, as
appropriate, about the panel meeting, including information about how it will be
conducted.
59. Where the prospective adopter attends the panel meeting, the agency should
explain to them who will be present the panel and their individual panel roles. This
explanation should include a description of the process of the meeting and its aims.Chapter 3
77
60. If the panel recommends that the prospective adopter is suitable to adopt a
child, AAR 26.3 provides that it may also consider and give advice to the agency
about the number of children the prospective adopter may be suitable to adopt, their
age range, sex, likely needs and background. The panel will need to consider the
strengths and weaknesses of the prospective adopter, as indicated by the
prospective adopter’s report, particularly the information that sets out their adoptive
capacity. Panel members should be made aware of the research of Farmer and
Dance
1
which explores the issues connected with ‘stretching’ adopters’ preferences
when making a match. Panel advice on such matters will inform subsequent
matching of the prospective adopter with a child, although the agency is not
restricted by such advice.
Agency decision: AAR 27 and SAR 4.2
61. The agency’s decision-maker must make a considered and professional
decision as to the suitability of the prospective adopter to adopt a child. As well as
making the decision, the decision-maker may express a view on any advice given by
the adoption panel or review panel about the number of children the prospective
adopter may be suitable to adopt, their age range, sex, likely needs and background.
This is not the same as a decision on the prospective adopter’s suitability. Where the
decision-maker expresses a view on this aspect of the adoption or review panel’s
advice, this may be taken into account by the agency during the matching process
together with other factors such as the further development of the prospective
adopter’s capacity. This too must be recorded on the prospective adopter’s case
record. See chapter 1 for guidance on the action the decision maker must take in
making the decision.
62. The prospective adopter should be informed orally of the agency’s decision
within two working days and written confirmation should be sent to them within five
working days. Where the decision is to approve the prospective adopter, the agency
should provide them with information which explains the role of the Adoption
Register for England and Wales and include the Register’s website address:
www.adoptionregister.org.uk. See paragraph 65 when the decision is not to approve
the prospective adopter.
1
Farmer, E and Dance, C (2010) Adoption Research Initiative study An investigation of family finding
and matching in adoption. The Adoption and Children Act 2002
78
Adoption Register
63. The Adoption Register holds information on children waiting to be adopted
and of a range of approved prospective adopters who are available and able to meet
the needs of children, including black and minority ethnic (BME) children, as well as
children who are older, disabled or in sibling groups.
64. Agencies are required to refer prospective adopters to the Register either at
the point the prospective adopter is considered suitable to adopt, or three months
after approval to adopt and if the agency is not actively considering a local match
with a child. Actively considering is defined as “being in the process of exploring a
potential match with an identified, named child(ren)”. Agencies must ensure that the
information the Adoption Register holds on the prospective adopter is kept up to
date. Prospective adopters may choose to refer themselves to the Register, three
months after approval, using the Adopter Self Referral form (AD02).
Agency decision – unsuitable to adopt
65. If the decision-maker makes a qualifying determination, i.e. considers the
prospective adopter is unsuitable to adopt following a full or brief prospective
adopter’s report, the prospective adopter has the right to make representations to the
agency or apply for an independent review before the agency implements the
decision. In these circumstances, the agency must use the standard letter providing
full and detailed reasons for the determination. Being considered unsuitable to adopt
may have a devastating effect on the prospective adopter who will need help and
support from their social worker during this difficult time. Their social worker should
give them a full explanation of why they are not considered suitable to adopt, and
give them information on what action they can take if they do not agree with the
determination.
`I am writing to tell you that having considered your application to become an
adoptive parent and the recommendation of the adoption panel, this agency does not
propose to approve you as suitable to be an adoptive parent. This is because [insert
full and detailed reasons. It is vital that the prospective adopter understands fully why
they are considered unsuitable to adopt a child. Include a copy of the adoption
panel’s recommendation if different - See chapter 1] (this is referred to in this letter
as “the determination”).Chapter 3
79
I know this will be disappointing news for you but before this determination is
implemented, you may:
a. accept the determination; or
b. make written representations to this agency; or
c. apply for the determination to be reviewed by an independent review
panel.
Option a – Accept the determination
It would be helpful if you could advise me, within 40 working days from the date of
this letter, if this is your preferred option. The determination will be confirmed and a
formal decision will be sent to you.
Option b - Representations to the agency
If you choose to make representations to this agency, these must be in writing and
be received at this office within 40 working days from the date of this letter. On
receipt, I may consider your case again or refer it and your written representations to
the adoption panel to consider and to make a fresh recommendation to me. If I do
refer your case to the adoption panel you will be invited to attend the panel meeting
to answer any questions the adoption panel may have. If I reconsider your case I
may invite you to meet me to discuss your case. If I do refer your case to the
adoption panel, I will take its recommendation into account when I make the final
decision on your suitability to adopt.
Option c – Application to an independent review panel for a review
If you wish to apply to the independent review panel to review the determination,
your written application and your reasons for the application must be received by the
Administrator to the independent review panel within 40 working days from the date
of this letter. You will be invited to attend the review panel’s meeting. The function
of the review panel is to consider your case anew and to make a fresh
recommendation to the agency which will be taken into account alongside the
original adoption panel’s recommendation when I make the final decision on your
suitability to adopt. For information on the independent review mechanism (IRM)
please see http://www.independentreviewmechanism.org.uk/.
If I have not heard from either you or the independent review panel’s administrator
after the period of 40 working days has expired I will write to you confirming my
decision on your suitability to adopt a child.`The Adoption and Children Act 2002
80
66. The agency must note the prospective adopter’s case record to ensure that
no action is taken until after the 40 working day period for making representations or
applying to the review panel has expired when it must proceed with its decision. It
must also notify the prospective adopter in writing of its decision together with the
reasons for that decision.
Representations
67. Where the agency receives representations from the prospective adopter
within 40 working days, the decision-maker may consider the representations and
may invite the prospective adopter to meet to discuss their case. The decisionmaker may, instead refer the case to the adoption panel for further consideration.
Where the case is referred to the panel, the panel must consider the case again and
make a fresh recommendation as to the suitability of the prospective adopter to
adopt a child, see AAR 27.7. The prospective adopter must be invited to attend the
panel meeting to answer any questions the adoption panel may have.
Agency decision following representations or review by review panel
68. On receipt of the adoption panel’s or review panel’s recommendation, advice
and minutes of the meeting, the agency’s decision-maker must make a decision in
accordance AAR 27.8 – see paragraph 61 above and chapter 1. This requires them
to take into account the further recommendation of the adoption panel (if any) or,
where the review panel has made a recommendation, to take account of that
recommendation and the recommendation of the original adoption panel before
coming to a final decision. As with the original determination, if the decision-maker
remains minded not to approve the prospective adopter, they should discuss the
case with a senior colleague within the agency.
69. Once the decision is made, the prospective adopter should be informed orally
of the decision within two working days and written confirmation should be sent to
them within five working days. Where the decision is not to approve the prospective
adopter, the agency must provide the reasons for the decision. If the adoption
panel’s or review panel’s recommendation was different, a copy of that
recommendation must also be provided to the prospective adopter. In respect of a
case referred to the review panel, the IRM contract manager must also be given
written notification of the decision. See chapter 1 for the address of the IRM.
Review of approval: AAR 29
70. In most cases, the approved prospective adopter is unlikely to be ‘matched’
immediately with a child. While they are waiting, the adoption social worker should
maintain contact with the prospective adopter and keep them informed of progress,
and encourage them to keep the agency informed of any changes in their lives. This Chapter 3
81
will also be a time of reflection and the prospective adopter may reconsider the
characteristics of the children they feel able to parent. The agency will need to be
responsive to such changes of view, allowing the opportunity to discuss these and
consider their possible implications.
71. AAR 29 requires the agency to review the prospective adopter’s approval
periodically until a child is placed for adoption with them or a match is under active
consideration. Such a review must be held a year after approval, and subsequently
at yearly intervals, or earlier if the agency considers it necessary.
72. The need for an earlier review could arise, for instance, where:
a child was placed with the prospective adopter and the placement
disrupts;
a child was matched with the prospective adopter, and introductions
have started, but a decision is made not to proceed with the placement;
a couple separates;
the prospective adopter becomes pregnant or has given birth to a child;
there are substantive changes in their health or their economic
circumstances;
concerns are raised about child welfare and safety;
any other matters arise which may affect their suitability to adopt.
73. When carrying out a review the agency must:
make enquiries and obtain information it considers necessary in order to
review whether the prospective adopter continues to be suitable to adopt;
take into consideration minutes and recommendations of any disruption
meeting held following a placement disruption; and
ascertain and take into account the views of the prospective adopter.
The social worker conducting the review should usually be the adoption team
manager but could be another social worker who did not conduct the original
assessment. The Adoption and Children Act 2002
82
74. The review should consider the prospective adopter’s family circumstances:
health, economic circumstances, work commitments, and whether police and
medical checks are still up-to-date. Where the police checks are more than two
years old, these should be renewed. The prospective adopter should be asked
whether their health remains unchanged since the previous medical checks arranged
by the agency. Advice on whether these should be renewed should be sought from
the agency’s medical adviser.
75. Where the agency completes its review and considers that the prospective
adopter remain suitable to adopt, it need only inform the prospective adopter and
record its view on the prospective adopter’s case record.
76. Where the information gathered in the review suggests to the agency that the
prospective adopter may no longer be suitable to adopt, AAR 29.4 sets out the steps
that the agency must take. As with the original approval process, the report that the
agency presents to panel in these circumstances must be shared with the
prospective adopter so that they may make comments. The rest of the process,
including the rights of the prospective adopter in the event of an unfavourable
outcome, is the same as for the original approval process.
77. In some cases the prospective adopter may accept, with the help of
counselling, that as their circumstances have changed significantly they are no
longer suitable to adopt, or that they no longer wish to go ahead. The agency should
note this on the prospective adopter’s case record and ensure that the panel is
informed that the prospective adopter no longer wishes to adopt. If this occurs prior
to the prospective adopter’s review report being prepared or submitted to the panel,
there is no need for the agency to carry out the subsequent actions set out in AAR
29. Chapter 4
83
Chapter 4: Matching and proposing a placement
This part of the guidance explains the duties of an adoption agency when it
proposes to place a child with a selected adoptive family. If the proposed
family is resident outside the British Islands, the additional guidance on
intercountry adoption should also be followed.
Timescales
1. The timescales should be adhered to during this part of the adoption process,
unless the adoption agency considers that in a particular case complying with a
timescale would not be in the child’s interests – the paramount consideration must
always be the welfare of the child. Where the agency is unable to comply with a
timescale or decides not to, it should record the reasons on the child’s case record.
2. The following timescales apply where the agency proposes to place a child
with the prospective adopter, whether the prospective adopter is resident in the UK
or abroad:
a proposed placement with a suitable prospective adopter should be
identified and approved by the adoption panel within six months of the
agency deciding that the child should be placed for adoption;
where a birth parent has requested that a child aged under six months be
placed for adoption, a proposed placement with a suitable prospective
adopter should be identified and approved by the panel within three
months of the agency deciding that the child should be placed for
adoption.
Introduction
3. The agency should have begun trying to identify a suitable adoptive family
before the agency’s decision was made that the child should be placed for adoption,
and/or before consent to placement has been given or a placement order obtained,
see chapter 2. However, in cases where parental consent is unlikely to be
forthcoming, and especially where there is doubt about whether a placement order
will be granted, it may not be appropriate to do more than make general enquiries
about the likely availability of suitable prospective adopters before the agency is
authorised to place the child for adoption. The intensity of the search increases once
the decision has been made. The Adoption and Children Act 2002
84
Matching considerations
4. Making a good match between a child and prospective adopter is a highly
skilled task and is vital for both the child and the prospective adopter. The social
worker has to consider a range of issues: meeting the child’s identified needs; the
parenting skills of the prospective adopter; working quickly to avoid the damaging
effect of delay and using the agency’s resources effectively. But by being informed
by research, being realistic and consider a prospective adopter who can meet most
of the child’s identified needs, and seeking families in-house, from other adoption
agencies – local authorities and voluntary adoption agencies (VAAs) - consortia, and
the Adoption Register will put the child in an excellent position of being placed
quickly with a new, safe and loving family. If the prospective adopter can meet
most of the child’s needs, the social worker must not delay placing a child with
the prospective adopter because they are single, older than other adopters or
does not share the child’s racial or cultural background. Social workers also
need to consider how the prospective adopter’s parenting capacities can be
supported and developed alongside the child’s changing needs. Time is not on the
side of the child and a delay in placing a child with a new family can damage their
development, contribute to further emotional harm, reduce their chances of finding a
permanent family
1
or increase the chance of adoption breakdown. One research
study found that the chances of being adopted reduced by nearly a half for every
year of delay. For an exploration of the key issues related to family finding and
matching, see the research An investigation into linking and matching in adoption.
5. There are many people who wish to adopt – including those who are not of
the same ethnic origin of the children needing adoption or who are of mixed origin,
are single or older. Such applicants should be seen by agencies as an opportunity
to address more effectively the needs of a range of children who are themselves
older, and/or from different backgrounds including mixed and minority ethnic
backgrounds. Any practice that classifies couples/single people in a way that
effectively rules out the adoption because of their status, age or because they
1
Lowe, N., Much, M,. Nader, K., Borkowski, M., Copner, R. Lisles, C. and Shearman, J. (2002) the
Plan for the Child: Adoption or Long-term Fostering, London, BAAF.;
Murch, M, Lowe, N., Borkowski, M., Copner, R. and Griew, K. (1993) Pathways to Adoption, London,
HMSO.
Biehal, N., Elison, S., Baker, C., and Sinclair I. (2009) A Characteristics, Outcomes and Meanings of
Four Types of Permanent Placements - Adoption by Strangers, Adoption by Carers, Long-Term
Foster Care and Special Guardianship. Adoption Research Initiative study
Ward, H., Munro, E., Brown, B. (2010) Protecting and promoting the well-being of very young
children, Adoption Research Initiative
Selwyn, J., Frazier, L and Quinton, D. (2006) Paved with Good Intentions: The Pathway to Adoption
and the cost of Delay, British Journal of Social Work, 36, 561-576.Chapter 4
85
and the child do not share the same racial or cultural background is not childcentred and is unacceptable.
Ethnicity and culture of children and prospective adopters
6. The structure of white, black and minority ethnic groups is often complex and
their heritage diverse, where the race, religion, language and culture of each
community has varying degrees of importance in the daily lives of individuals. It is
important that social workers avoid ‘labelling’ a child and ignoring some elements in
their background, or placing the child’s ethnicity above all else when looking for an
adoptive family for the child
1
.
7. A prospective adopter can be matched with a child with whom they do not
share the same ethnicity, provided they can meet the child’s other identified needs.
The core issue is what qualities, experiences and attributes the prospective adopter
can draw on and their level of understanding of the discrimination and racism the
child may be confronted with when growing up. This applies equally whether a child
is placed with a black or minority ethnic family, a white family, or a family which
includes members of different ethnic origins.
8. All families should help children placed with them to understand and
appreciate their background and culture. Where the child and prospective adopter do
not share the same background, the prospective adopter will need flexible and
creative support to be given by their agency. This should be in the form of education
and training, not just simplistic advice, provided in a vacuum, on learning their
children’s cultural traditions or about the food/cooking from their birth heritage. The
support plan should consider how the child’s understanding of their background and
origin might be enhanced. This can include providing opportunities for children to
meet others from similar backgrounds, and to practise their religion – both in a formal
place of worship and in the home. Maintaining continuity of the heritage of their birth
family is important to most children; it is a means of retaining knowledge of their
identity and feeling that although they have left their birth family they have not
abandoned important cultural, religious or linguistic values of their community. This
will be of particular significance as they reach adulthood.
1
Selwyn, J., David Quinton, D., Harris, P., Wijedasa, D., Nawaz, S., Wood, M., (2008) Pathways to
permanence for children of black, Asian and mixed ethnicity: dilemmas, decision-making and
outcomesThe Adoption and Children Act 2002
86
Single prospective adopters
9. Single prospective adopters of both genders can have much to offer an
adopted child. They may be able to focus all their time on meeting a child’s needs and
have a good level of physical and emotional availability. Some children may find it
easier to relate to just one parent or prefer not to relate closely to a mother or father
figure if there are negative associations from the past. Issues of emotional and
financial support, health and future close relationships will need to be carefully
explored with single prospective adopters.
Older children and prospective adopters
10. Where older children need adoptive parents, older and more experienced
prospective adopters could take on the care of these children if they enjoy sufficient
health and vigour to meet the child’s varied demands. Remember, there is no upper
age restriction on applying to become adoptive parents, but they must be at least 21
years old. The more mature person has a greater experience of life; some may be
established in their careers and others may have already brought up children of their
own and have developed good parenting skills.
11. But the age of the prospective adopter must also be considered in the light of
the gap in age between them and the child to be placed with them. Too large a gap
may have an adverse effect upon the child and possibly upon their relationship with
the adoptive parents. Where a child has already suffered change, deprivation and
loss in their early years, demands on adoptive parents, both physical and emotional,
are likely to be considerable, particularly as the child grows older.
Siblings
12. Siblings should be adopted by the same prospective adopter unless there is
good reason why they should not be. Where an agency is making a placement
decision on two or more children from the same family, it should be based on a
comprehensive assessment of the quality of the children’s relationship, their
individual needs and the likely capacity of the prospective adopter to meet the needs
of all the siblings being placed together. Where it is not possible for the siblings to be
placed together the agency should consider carefully the need for the children to
remain in contact with each other and the need for adoption support (see paragraph
27). Where a placement is sought for a child whose sibling(s) have already been
adopted, it will be important to consider whether it is possible to place the child with
the parent who have already adopted the sibling(s). It must be recognised however,
that this could be placing too great a burden on the adoptive parent, and risk
destabilising the existing adoptive family. See chapter 7.Chapter 4
87
Placing a child with birth relatives
13. Local authorities are required by section 22C of the Children Act 1989 (the
1989 Act) to consider a placement with relatives if the child being looked after cannot
return to their birth parents. Where this solution is the right one for the child, the
placement is likely to be secured under a fostering arrangement or by a residence or
special guardianship order, but the appropriateness of adoption by a relative should
not be automatically ruled out.
14. There may be some circumstances where the security provided by the
irrevocability of an adoption order, and its lifelong effect, would be best for the child
and outweigh the potential drawbacks of the ‘skewing’ of relationships. For example,
a grandparent adopting their grandchild would be legally the child’s parent, which
would mean the child’s birth parent would, in law, be their sibling. There is no
presumption that a special guardianship order will be preferable to an adoption order
if the placement is with a relative. It will be necessary to consider the particular facts
of each individual case. See for example Re S (Adoption order or special
guardianship order) [2007] EWCA Civ 54, Re AJ (adoption order or special
guardianship order) [2007] EWCA Civ 55 and Re M-J (Adoption order or special
guardianship order) [2007] EWCA Civ 56. In some circumstances where the relatives
who would most suitably care for the child live outside the British Islands, it may be
that such a placement can best be achieved by adoption.
Health
15. Agencies have a duty to satisfy themselves that prospective adopters have a
reasonable expectation of continuing to enjoy good health. The medical adviser
should explain and interpret health information from the prospective adopter, their
GP, and consultants if relevant, to facilitate panel discussion. The opinion of the
prospective adopter's GP and the agency's medical adviser about the health status
of the prospective adopter needs to be given sufficient weight by adoption panels
and agency decision-makers. Mild chronic conditions are unlikely to preclude people
from adopting, provided that the condition does not place the child at risk through an
inability to protect the child from commonplace hazards or limit them in providing
children with a range of beneficial experiences and opportunities. More severe
conditions must raise a question about the suitability of a prospective adopter, but
each case will have to be considered on its own facts and with appropriate advice.The Adoption and Children Act 2002
88
Smoking
16. There is no legal reason why a child cannot be matched with a prospective
adopter who smokes. However, a local authority may have to restrict smokers as
regards the age and type of child who may be placed with them, especially a child:
under five, or with disabilities which keep them indoors or who has a heart or
respiratory problem or glue ear. An adoption agency has a duty to consider the
effects of smoking on children in their care. Agencies should therefore discuss with
the prospective adopter the issues and implications of smoking such as expecting
them to ensure that a child is not exposed to smoke or role models who smoke.
Discussions about smoking should be undertaken in the spirit of promoting the
health of the prospective adopter and practical strategies should be made available
to support those who wish to stop.
Adoption agencies, consortia and the Adoption Register
17. In trying to identify a suitable prospective adopter for a child, the agency
should bear in mind that the most suitable family may be one that has been
approved by another agency. It should make use of all its available resources such
as other adoption agencies – both VAAs and local authorities - any consortium of
agencies of which it is a member, and the Adoption Register, to help ensure there is
no delay in children’s placement with adoptive families.
18. The Adoption Register holds information on a range of approved prospective
adopters who are available and able to meet the needs of children, including black
and minority ethnic (BME) children, as well as children who are older, disabled or in
sibling groups. Keeping in touch with the Adoption Register is important, as is
carefully considering all the potential matches they provide and responding swiftly to
the Adoption Register, particularly when proposed links are accepted and the
prospective adopters are matched with children. See chapters 2 and 3.
19. Where a local authority is aware that a particular prospective adopter
approved by another adoption agency can best meet the needs of a child, they
should negotiate with the agency about the possible placement of the child with that
family. Unwillingness to pay an inter-agency fee should not be the reason for not
placing the child. Indeed, Selwyn J’s research Adoption and the Inter-agency Fee
provides clear evidence that effective use of VAAs has a positive impact on finding
suitable and timely placements at a lower cost for local authorities. It shows that
local authorities have under-estimated their own costs and that this has influenced
their belief about the costs of VAA placements: the true costs of both VAA and local
authority family finding are almost identical at around £36,000, which is similar to the
cost of the child remaining in foster care for 18 months. The research found that
where adoption is the right option for a child, a timely adoptive placement could save Chapter 4
89
approximately £25,000 for each subsequent year, after the first, that the child is not
in care.
20. Where a suitable family is not readily identifiable, the agency may need to
make use of resources designed to feature children with the aim of encouraging
prospective adopters to come forward, such as BAAF’s ‘Be my parent’ or Adoption
UK’s ‘Children Who Wait’, subject of course to appropriate consents. And in using
these resources, the agency should not put barriers in place, such as specifying the
ethnicity of the prospective adopter or ruling out single prospective adopters. The
emphasis should be on what skills and qualities the prospective adopter must have
in order to meet the child’s needs. It is also important that any enquirers responding
through these routes be followed up quickly and where not suitable for the specific
child are signposted to other agencies so they are not lost to adoption.
Proposing a placement: AAR 31
21. Where the agency is considering the placement of a child for adoption it may
identify a number of possible prospective adopters. It needs to compare their
potential to provide a stable and permanent family for the child, based on the child’s
permanence report (CPR), the prospective adopter’s report and other information it
has collected and assessed.
22. The agency is responsible for considering and comparing alternative
prospective adopters for a particular child. In its report to the adoption panel on the
proposed placement, the agency should only propose one adoptive family (that is,
one couple or a single person) as the prospective adopter(s).
23. Once the agency has identified the family it considers most appropriate as a
‘match’ for the child, it will need to comply with the requirements of AAR 31. The first
stage is to provide the prospective adopter with a copy of the child’s permanence
report and other information the agency considers relevant. This could include
reports or summaries of reports on the child’s health, education or special needs.
Photographs and a video/DVD of the child may also be helpful to the prospective
adopter. The prospective adopter needs to understand and confirm in writing that
they will keep this information confidential and return it to the agency if the
placement does not proceed. There is no requirement to conceal the child’s identity
from the prospective adopter; indeed to do so runs the risk that an existing
acquaintance between the prospective adopter and members of the birth family will
not be discovered until after the match has been agreed.The Adoption and Children Act 2002
90
24. It is essential that agencies make available to the prospective adopter all
material facts about the children that may be placed in their care. It is unacceptable
for agencies to withhold information about a child and provide a picture that
bears little relation to the reality. The information provided must include full details
of the child’s background. This includes the history of any abuse or neglect and/or
sexualised behaviour on the part of the child, their history in care, including the
number and duration of placements, educational progress (or difficulties), behaviour
and comprehensive information about physical and mental health and development,
and the implications for the future. Such information is a vital tool for prospective
adopters if they are to be able to make an informed decision as to whether to accept
the placement of the child and, once the child is placed, to understand and deal
effectively with the child’s particular needs.
25. The agency must meet the prospective adopter to discuss the proposed
placement, be ready to answer their questions and provide, as far as possible,
whatever further information they need. It is good practice for the medical adviser to
meet with the prospective adopter to share all appropriate health information, to
discuss the needs of the children with whom they are matched, and to provide a
written report of this meeting. To comply with the regulations, the agency must
ensure that it records the prospective adopter’s views about the proposed
placement, including any view they have about proposed contact arrangements.
26. Prospective adopters should have received a general explanation of
placement procedures as part of their initial preparation for assessment but the
agency should now remind them of its placement planning procedures. The agency
should ask whether the prospective adopter would be willing to meet later with the
child’s parents, if this is considered to be appropriate. Where an inter-agency
placement is being considered, the prospective adopter’s agency should ensure that
it is familiar with the introduction and placement procedures used by the child's
agency so that it can explain these to prospective adopters.
27. If the agency thinks, following this initial sharing of information and discussion,
that the proposed placement should proceed it must carry out (if it is a local
authority) an assessment of the support needs of the adoptive family – the child, the
prospective adopter and any other children of the prospective adopter - in
accordance with the Adoption Support Services Regulations 2005. The agency must
also consider the arrangements for future contact between the child and appropriate
members of their birth family or other people important to the child; see chapter 7 for
more guidance on contact issues. If the placing authority is a VAA, it should explain
to the prospective adopter that they may request their local authority to assess their
needs for adoption support services, and should assist them in this process. If the
local authority undertaking the assessment asks for a copy of the child’s
permanence report and the prospective adopter’s report to inform its assessment, Chapter 4
91
the VAA must comply with this request.
28. AAR 31.2.d sets out the matters that must be included in the adoption
placement report that must now be prepared for the adoption panel. This is a report
that falls within the Restriction on the Preparation of Adoption Reports Regulations
2005 (ARR) and must be prepared by someone appropriately qualified and
experienced or a social worker or student supervised by an appropriately qualified
person. The author of the report and the countersigning officer should both sign and
date the report, state their qualifications and experience, and confirm that they have
complied with ARR 3, see chapter 1. In the case of a VAA supplying a report, the
proposals for adoption support will be those, if any, that the local authority has made.
29. The regulation does not require the agency to include in the report the views
of the child about the proposed placement, but where this has been discussed with
the child, and particularly where the child already knows the prospective adopter
(perhaps as their current foster carers), this will be relevant information to be
included in the report. In appropriate circumstances the proposed placement will also
have been discussed with the child’s birth family and their views should be included
in the report.
30. Before it is sent to the panel, a copy of the adoption placement report must be
given or sent to the prospective adopter so that they may express their views on it in
writing. AAR 31.3 specifies that the prospective adopter must be given 10 working
days to comment on the report, so the agency will need to ensure that the timetable
for completion of the report allows sufficient time before the panel meeting at which it
is scheduled to be presented. It will also be helpful, particularly in the case of any
proposal to provide adoption support services, if the agency has discussed the
outcome of its assessment of the family’s support needs in advance of completing
the report.
31. At the expiry of the 10 working days or earlier if the prospective adopter’s
views are received earlier, the agency must send the report to the adoption panel
together with the other documents specified in AAR 31. The agency must also
supply additional information, so far as practicable, if so requested by the panel.
32. In the case of a proposed inter-agency placement, the child’s agency must
open its own prospective adopter’s case record (see AAR 22.3) and place on this the
documents and information it has received from the prospective adopter’s agency.The Adoption and Children Act 2002
92
The adoption panel: AAR 32
33. Once a case has been referred to the adoption panel, the panel is required to
consider it and make a recommendation as to whether the placement proposed by
the agency should be made. The adoption panel cannot recommend a particular
placement unless decisions have already been made that the child should be placed
for adoption and that the prospective adopter is suitable to adopt. In appropriate
cases, however, to avoid unnecessary delay, the recommendation as to placement
can be made at the same panel meeting at which a recommendation has been made
in respect of the child and/or the prospective adopter, although each
recommendation must be considered separately. In other words, a recommendation
as to the approval of the prospective adopter must be for approval of them as
suitable to adopt any child; only then can the panel go on to consider whether to
recommend that they be approved for the particular child. This will be appropriate
in a case where a baby is being relinquished for adoption, and the agency may wish
to identify a family with whom the baby can be placed quickly from among
prospective adopters already approved. In this case the recommendation that the
child should be placed for adoption can be made at the same time as the
recommendation that they should be placed with a particular prospective adopter.
Similarly, where a child is living with foster carers who wish to adopt them, it may be
appropriate for the recommendation as to their suitability to be made at the same
panel as the recommendation about the placement of the child with them, or even,
occasionally, for all three recommendations to be made at the same meeting.
34. As well as making a recommendation on the placement, the panel must
consider, and may give advice on the proposed contact arrangements, the proposals
for adoption support, and whether the agency should restrict the exercise of parental
responsibility by the prospective adopter or parent. If the agency is a VAA and has
been able to ascertain any proposals for adoption support from the relevant local
authority, the panel should consider these also. See chapter 6 with regard to the
exercise of parental responsibility.
The agency decision: AAR 33
35. The agency’s decision-maker must make a considered and professional
decision on the proposed placement. As well as making the decision, the decisionmaker may express a view on any advice given by the panel. The decision and any
views on the advice must be recorded on both the child’s and the prospective
adopter’s case record. See chapter 1 for guidance on the action the decision-maker
must take in making the decision. Chapter 4
93
36. The prospective adopter should be informed orally of the agency’s decision
within two working days and written confirmation should be sent to them within five
working days. If the decision is to make the placement, the agency must write to the
child’s parents, including a father without parental responsibility, where his
whereabouts are known and the agency considers it appropriate. Other birth family
members who have been consulted about the child should also be informed as
appropriate. The agency should ensure that the child’s Independent Reviewing
Officer is informed.
37. If the placement is to proceed the agency must inform the child and explain
the decision in a way that is appropriate to the child’s age and understanding. It will
also be important to inform the child’s current carers. Where the child was aware of
the proposed placement before the decision was made and the decision is not to
place them for adoption with a particular prospective adopter, it will also be
necessary for the agency to explain the decision to the child in an appropriate way.
38. Once a decision has been made that the placement is to proceed, the agency
must place on the child’s case record the relevant documents set out in AAR 33.5.
39. If the decision is not to make the placement, the prospective adopter does not
have recourse (as in the case of a determination not to approve them as suitable
adoptive parents) to the Independent Review Mechanism. They are however entitled
to a full explanation of the agency’s reasons for its decision, and it is most important
that they are offered support at this difficult time.
Adoption and paternity leave and pay
40. The prospective adopter should notify their employer of their intention to take
adoption leave or paternity leave within seven days of being notified that they have
been matched with a child. They should tell their employer the date on which the
child is to be placed for adoption with them and the date they intend to start their
adoption leave. When notifying the prospective adopter of their decision to place a
child for adoption, the adoption agency should also enclose a completed Matching
Certificate available from Business Link.The Adoption and Children Act 2002
94Chapter 5
95
Chapter 5: Placement and Reviews
This part of the guidance explains the duties of an adoption agency where:
it places a child for adoption
it reviews the child’s case
consent to placement is withdrawn
the placement is terminated.
Placement by agency
1. Once a decision has been made in accordance with regulation 3 of the
Adoption Agencies Regulations 2005 (AAR) that a child should be placed with a
particular prospective adopter, the agency will need to make a plan for the
placement. The placement cannot be made unless the agency has ‘authority to
place’ (consent under section 19 of the Adoption and Children Act 2002 (the Act) or
a placement order) or the child is under 6 weeks old and the birth parents have
agreed in writing that the child may be placed, using the agreement form in chapter
2. In most cases it will be impracticable to make plans for the placement until it is
clear that it will be lawful to place the child. However in the case of a baby, for
example, or where it is necessary to end the child’s existing placement in the near
future, it will be helpful to comply with the requirements of AAR 35.1 and 2, and to
make at least a provisional plan for the placement, in anticipation of the expected
consent or placement order.
2. If, before the child is placed, an application is made for the revocation of a
placement order, the local authority cannot place the child without the leave of the
court. An application for revocation can only be made if the court has granted leave
under section 24(2) of the Act, and an application for leave does not in itself prohibit
the local authority from placing the child. It is not however appropriate for a local
authority to proceed with the placement when it is aware of the application for leave,
and an attempt to do so in order to frustrate the birth parents’ application could be
challenged in court by an application for judicial review. In Re F (Placement Order)
[2008] EWCA Civ 439 the Court of Appeal stated that the appropriate course of
action in such a case would be for the birth parents to request the local authority to
delay placement until the application could be heard. If such a delay is likely to be
prejudicial to the child’s welfare, for example if introductions have already started,
the local authority should then apply to the court as quickly as possible for
permission to place the child, under section 24(5) of the Act.The Adoption and Children Act 2002
96
3. The agency is required to meet the prospective adopter to consider the
proposed placement. A provisional draft of the adoption placement plan, as set out in
Schedule 5 of the AAR, should form the basis for the meeting. Contact plans should
be discussed at this stage. Contact between adopted children and their birth families
can be beneficial, but research
1
has also highlighted that any form of contact needs
careful planning and support, and that children’s views and their need for contact
may change over time so any contact plans must be kept under review.
4. The prospective adopter will already have received the information about the
child and a copy of the adoption placement report as set out in AAR 31. They should
also be supplied with any relevant additional information, such as the reaction of the
child and birth parents on receiving information about the proposed placement, and
any advice given by the adoption panel under AAR 32.3. The agency should arrange
for the child’s social worker, the prospective adopter’s social worker, the child’s
current carer and any relevant child specialists to attend the meeting with the
prospective adopter. It may be helpful to involve the foster carer’s social worker, if
appropriate.
5. One of the matters to be discussed and agreed is the proposed arrangements
for introducing the child and the prospective adopter. These will of course vary
depending on the age of the child, and all the circumstances. In some cases a
lengthy series of introductory meetings of increasing duration will be needed. It is
essential that everyone involved is clear about what is planned, how they can
discuss with the agency whether the arrangements are working in a way that is
helpful to them and how any changes to the plan will be made if necessary. It will be
especially important for the foster carer’s own social worker to be part of the meeting
if the foster carer is going to be involved in a protracted period of introductions.
What is important is that both the child and prospective adopter feel well prepared
before the placement and are happy with the pace of the introductions and the date
of placement.
6. As soon as possible after the planning meeting, the agency must send the
prospective adopter the adoption placement plan. This will set out the information
required in Schedule 5 of the AAR, and will be the basis on which the prospective
adopter will make their formal decision whether to accept the placement. In some
cases, for example if there is any disagreement or uncertainty about the proposed
adoption support arrangements, the prospective adopter may wish to take some time
to consider the proposal, and take advice if necessary.
1
Neil, E., Young, J., Cossar, J., Jones, C. and Lorgelly, P. (2010) Supporting direct contact after
adoption, Adoption Research Initiative study.Chapter 5
97
7. Once the prospective adopter has notified the agency that they wish to
proceed with the placement, the agency may make the placement (subject to
paragraph 1 above, and AAR 35.3 and 4). The agency should keep the child’s
current carer informed of the placement arrangements and – having regard to the
child’s age and understanding – inform the child in an appropriate manner. Where
the child is already living with the prospective adopter, such as a foster carer, the
agency must notify them in writing of the date on which the child’s placement with
them becomes a placement for adoption. If financial support is to be paid under the
adoption support plan this will be paid as from the formal ‘placement’ date and any
fostering allowance will cease from that point.
8. Before making the placement the agency must give the notifications required
by AAR 35.6. These are important in ensuring as smooth a transition as possible in
the child’s health care and education, and in the safeguarding and support
arrangements for the child. The agency should ensure that these organisations are
reminded not to give the birth parents the name and address of the prospective
adopter. The agency should also ensure that prospective adopter is aware that
these notifications have been given.
9. A child who is placed for adoption remains a looked after child and, if they are
of statutory school age, will have a Personal Educational Plan (PEP). Statutory
guidance The role and responsibilities of the designated teacher for looked after
children makes clear that the child should continue to be treated in the same way as
any other looked after child for the purpose of school admission priority
arrangements and in relation to the designated teacher’s role. Once the adoption
order is made, the child is no longer looked after. The role of the designated teacher
changes, not least because it is no longer a requirement for the child to have a PEP.
Schools and designated teachers will need to recognise that the child’s educational,
social and emotional needs will not change overnight because of the adoption order.
With effect from the school year 2013/2014 looked after children who leave care
under an adoption order, special guardianship order or residence order retain the
priority they had as a looked after child in school admission arrangements.
10. AAR 35.7 requires the agency to notify the prospective adopter in writing of
any change to the adoption placement plan, but any such changes should always be
discussed with the prospective adopter before they are implemented.
Modification of the Children Act 1989: AAR 45
11. AAR 45 applies only when the agency is authorised to place a child for
adoption or has placed a child less than 6 weeks old for adoption. AAR 45 modifies
the Children Act 1989 (the 1989 Act) so that in adoption cases certain provisions of
sections 22, 61 and Schedule 2 of that Act do not apply or are modified. Section 22
(general duty of local authority in relation to looked after children applies to local The Adoption and Children Act 2002
98
authorities) and section 61 (duties of voluntary organisations) applies to voluntary
adoption agencies (VAAs).
12. Where the agency is a local authority, AAR 45.2 modifies section 22 of the
1989 Act so that:
section 22(4)(b) does not apply. The effect of this is to remove the general
obligation on the authority to ascertain the wishes and feelings of the
child's birth parents before making any decision with respect to the child;
section 22(4)(c) applies as if for that sub-paragraph there were inserted
“(c) any prospective adopter with whom the local authority has placed the
child for adoption.” The effect of this is to require that where the authority
has placed a child with a prospective adopter it is to ascertain their wishes
and feelings before making any decision with respect to the child.
13. The local authority will still be required to comply with section 22(4)(a) and
section 22(4)(d) of the 1989 Act in ascertaining, and in section 22(5) in giving due
consideration to, the wishes and feelings of the child, and of any other person it
considers to be relevant. Research
1
underlines the importance of listening to and
acting on the wishes and feelings of children and prospective adopters at this stage.
The authority will need to decide in each case whether ‘any other person’ includes
the child’s birth parents. When the agency is coming to any decision relating to the
adoption of the child, the duty in section 1 of the Act to have regard to the wishes
and feelings of the child’s relatives (which in that section includes the child’s birth
parents) will still apply. But, for other decisions (for example the choice of a child’s
school) the local authority will have the discretion to decide whether it is appropriate
to consult the birth parents. The AAR also makes specific provision for ascertaining
the views of the birth parents during the adoption process.
14. AAR 45.2 also provides that paragraphs 15 and 21 of Schedule 2 shall not
apply where the local authority is authorised to place a child for adoption or has
placed for adoption a baby under six weeks old. Paragraph 15 provides for the
promotion and maintenance of contact between the child and family (see paragraph
3). The duties with regard to contact are instead governed by section 26 of the Act
and the AAR (see the guidance on contact in chapter 7). Paragraph 21 provides for
contributions towards the maintenance of children looked after by local authorities.
1
Farmer, E., Dance, C., Ouwejan., and Beecham, J (2010) An investigation of family finding and
matching in adoption.Chapter 5
99
PLACEMENT AND REVIEW
Requirements imposed on the agency before the child
may be placed for adoption: agree placement plan with
prospective adopters
AAR 35
Written notifications required to be given by the agency
before the child is placed for adoption.
AAR 35.5 to 35.7
Frequency of reviews until child is
placed.
AAR 36.1
Frequency of reviews where child
is placed for adoption.
AAR 36.2 to 36.3
Frequency of visits to the child and prospective
adopter.
AAR 36.4
Matters the agency must
consider when carrying
out a review.
AAR 36.5 to 36.7
Notifications of the outcome of a
review.
AAR 36.8
Manner in which the review is to
be conducted.
AAR 37.6 to 37.7The Adoption and Children Act 2002
100
15. Where the agency is a VAA, AAR 45.4 modifies section 61 of the 1989 Act so
that:
section 61(2)(a) is to have effect in relation to the child whether or not they
are accommodated by or on behalf of the VAA;
section 61(2)(b) shall not apply. The effect of this is to remove the general
obligation on the VAA to ascertain the wishes and feelings of the child's
birth parents before making any decision with respect to the child;
section 61(2)(c) shall apply as if for that sub-paragraph there were inserted
“(c) any prospective adopter with whom the registered adoption society
has placed the child for adoption.” The effect of this is to require that
where the VAA has placed a child with a prospective adopter it is to
ascertain their wishes and feelings before making any decision with
respect to the child.
Parental responsibility
16. When the agency is authorised to place the child for adoption, the Act makes
provision for parental responsibility to be shared between the agency, the birth
parents and, once the child is placed for adoption, the prospective adopter. The
agency has the power to determine the extent to which the exercise of parental
responsibility by the birth parents and/or the prospective adopter should be
restricted. This enables the agency to decide how best to share parental
responsibility for the particular child, according to their needs, as the case moves
through the adoption process.
17. The most important elements of parental responsibility include:
providing a home for the child;
having contact with the child;
protecting and maintaining the child;
disciplining the child;
determining and providing for the child's education;
determining the religion of the child;
consenting to the child's medical treatment;
naming the child or agreeing to the child's change of name;
consenting to the child's marriage or civil partnership; and
consenting to the child's adoption.Chapter 5
101
18. With regard to the birth parents, the agency should decide in each case the
extent to which it is prepared to involve the birth parents or guardian in the exercise
of parental responsibility, where it considers that they would have the necessary
capacity to do so and that this would be in the interests of the child’s welfare. While
the child is not yet placed for adoption and particularly in those cases where the birth
parents accept the adoption plan, it may be appropriate for them to have a greater
role in the child’s life by continuing to exercise some aspects of parental
responsibility. Once the child is placed for adoption, it is less likely that it will be
appropriate for the birth parents to exercise parental responsibility. In coming to a
decision on the exercise of parental responsibility, the agency should take into
account the views of:
the child, if they are of sufficient age and understanding;
the views of the birth parents or guardian, where it is reasonably
practicable to do so; and
anybody else the agency considers relevant.
19. When the agency makes a decision on the exercise of parental responsibility
by the birth parents, it should write to them (if their whereabouts are known). The
letter should make it clear the extent to which, if at all, the agency considers it
appropriate for them to exercise their parental responsibility, the fact that this will be
subject to review, and that they would be notified in writing of any change. The letter
should also explain the reasons for the decision. The agency should ensure that it
has recorded any views expressed by the birth parents or guardian about the
exercise of parental responsibility, particularly in respect of questions of the child’s
religious upbringing or consent to serious or invasive forms of medical treatment.
20. When the agency is considering placing a child for adoption with a particular
prospective adopter, the agency should consider the extent to which the exercise of
the prospective adopter’s parental responsibility for the child should be restricted by
the agency while the child is placed. It may well be appropriate for there to be a
gradual ‘shift of power’ so that the prospective adopter comes to have a greater
degree of autonomy as the placement progresses, and their confidence and
parenting skills develop, bearing in mind that once the adoption order is made they
alone will have parental responsibility.
21. In coming to a decision on the exercise of parental responsibility for the child,
the agency should take into account:
the views of the child, if they are of sufficient age and understanding;
the views of the prospective adopter;
the views of anybody else the agency considers relevant, which, in any
case where the birth parents are still permitted to exercise parental
responsibility, will always include the birth parents; and The Adoption and Children Act 2002
102
the advice of the adoption panel where it has made a recommendation as
to the placement under AAR 32.
22. The proposed arrangements for exercise of parental responsibility will be set
out in the adoption placement plan, giving the prospective adopter the opportunity to
express their views about them prior to their agreement to the placement. The
arrangements will be subject to review at each review under AAR 36, and any
change to the arrangements must be recorded on the amended adoption placement
plan. Any changes must also be notified to the child (if of sufficient age), the
prospective adopter, and any other person the agency considers relevant. It will be
helpful, for example, for the agency to notify the school or education authority of the
arrangements in respect of the exercise of parental responsibility with regard to
education.
Changing the child's name
23. A child may not be known by a new surname until the making of an adoption
order, unless the court gives leave or each birth parent or guardian has given written
consent – see section 28(3)(a) of the Act.
Visits: AAR 36.4
24. The risk of a placement disrupting is highest during the first few weeks and
the agency is therefore required by AAR 36.4 to visit within the first week after
placement and thereafter at least once a week until the first review (four weeks after
placement – see below). The frequency of subsequent visits is then to be decided by
the placing agency at the first and each subsequent review, and noted on the
adoption placement plan.
25. The purpose of the visits is to enable the agency to satisfy itself as to the
child’s welfare, and to provide the prospective adopter with advice and support. They
will also inform the agency’s contributions to the review of the child’s case, and, in
due course, the report to the court when the adoption application is made. Visits
should be shared whenever possible between the child’s social worker and
prospective adopter’s social worker, and it is essential that there is clarity from the
outset about which social worker will conduct each visit and that they communicate
promptly with each other, including sharing their written reports.
26. The child’s social worker has the primary responsibility for ensuring the child’s
welfare and should on each visit see and speak to the child alone. The exceptions to
this are:
where the child refuses (and is of sufficient age and understanding to
refuse); Chapter 5
103
where the social worker considers it inappropriate to do so (again
having regard to the child’s age and understanding); and
where the social worker is unable to do so, for example because the
child is out.
If a child has particular communication difficulties or requires specialist
communication support, the social worker will need to use specialist resources in
order to ensure that the child has the opportunity to express their wishes and
feelings, including to request a visit from the social worker. The report should make
clear whether the child has been seen alone and, if not, the reason for this.
27. The prospective adopter’s social worker will have particular responsibility for
supporting the prospective adopter, and may sometimes see them without the child
being present. They may also be in contact with the prospective adopter by
telephone or email, and it is essential that information gathered in such a way is
properly recorded, and, like the reports of the visits, shared promptly with the child’s
social worker. It should of course be made clear to the prospective adopter that
information will be shared in this way.
28. Reports must be written after each visit and placed on the child’s case record.
These reports are governed by the ARR so must be written by a suitably qualified
and experienced social worker, or under the supervision of such a person. For
further information about these requirements, see chapter 1.
Out of area placements
29. When a child is placed for adoption by a local authority, the child continues to
be looked after by that local authority, (see section 18(3) of the Act). It remains
responsible for that child, wherever the child is living, until the adoption order is
made. Once an adoption order is made, the child ceases to be looked after and the
placing authority has no further responsibility towards them, except in respect of
adoption support, see chapter 9.
30. Where the placing agency and the placing agency’s social worker cannot visit,
the agency must make arrangements with another agency to ensure that a child and
family social worker visits the placement. It will not be sufficient, in an inter-agency
placement for example, to rely solely on visits by the prospective adopter’s social
worker.The Adoption and Children Act 2002
104
Placement breakdown
Before the adoption order is made
31. The placing authority is responsible for receiving the child from the
prospective adopter (either where the prospective adopter has given notice of their
wish to return the child or where the placing authority considers that the child should
not remain with the prospective adopter and has given them notice (see section
35(1) of the Act)). The placing local authority also has the power to remove the child
from the prospective adopter (see sections 30(1) and 34(1) of the Act).
Post adoption order
32. Once an adoption order has been made, the adoptive parent becomes the
child’s parent and acquires parental responsibility; the child is no longer looked after.
From this point onwards the child becomes ordinarily resident in the authority where
they now live with their adoptive parent. So if the adoption were to break down after
the adoption order was made, the case could not be transferred back to the placing
authority under section 20(2) of the 1989. In addition, the local authority where the
child lives with their adoptive parent would not be able to recoup the cost of
accommodating the child under section 29(7) of the 1989 Act. However, the cooperation duties under section 27 of the 1989 Act would still apply.
Reviews: AAR 36
33. Where a child is looked after by a local authority, even though the agency is
authorised to place the child for adoption, the review requirements will continue to be
governed by the Care Planning, Placement and Case Review (England) Regulations
2010 (the 2010 regulations) until the child is placed for adoption. AAR 36 however
will apply whenever the agency is authorised to place the child for adoption and:
the child is yet to be placed;
the child has been placed; or
the placement has disrupted.
This means, therefore, that while the child is authorised to be placed for adoption but
not placed, reviews will need to comply with both relevant sets of regulations.
Frequency of reviews
34. Where the child has not yet been placed for adoption, the first review under
the AAR must take place no more than three months after the agency obtained
authorisation to place, and thereafter not more than six months after the previous Chapter 5
105
review. This is the ‘six month review’ referred to in AAR 36.7, where particular
consideration must be given to establishing why the child has not yet been placed
and whether the adoption plan is still appropriate. If a review is needed sooner than
three months after authorisation to place in order to comply with the 2010
regulations, this will also be the first review under the AAR. The child’s details must
be placed on the Adoption Register no later than three months after the agency’s
decision-maker has decided (after considering the adoption panel’s
recommendation) that the child should be placed for adoption, see chapter 2.
35. When the child has been placed for adoption, the first review must be held no
more than four weeks after placement, the second no more than three months after
this, and subsequent reviews held at six-monthly intervals until an adoption order is
made, or the child is no longer placed with the prospective adopter. These provisions
set out the maximum intervals between reviews. The agency may conduct additional
reviews where it considers it appropriate, and should always be prepared to do so at
the request of the prospective adopter or the child. In addition, if the placement
disrupts and the child is returned to the agency or removed from the placement by
the agency, a review under AAR 36.10 must be held between 28 days and 42 days
after the disruption.
Conduct of reviews
36. The agency should provide written information about how it intends to review
a child’s case to the prospective adopter, the child where the agency considers the
child is of sufficient age and understanding, and to any other person the agency
considers relevant, such as the child’s birth parents or guardian and anyone else
who has contact with the child. The Independent Reviewing Officer (IRO) appointed
by the agency must ensure that the review is conducted in accordance with AAR 36
and, as far as is reasonably practicable, attend and chair any meeting to review the
child’s case. See AAR 37.
37. The matters to be considered at each review are set out in AAR 36.6. The
guidance on reviews of looked after children contained in the 1989 Act guidance
Volume 2: Care Planning, Placement and Case Review should also be followed in
respect of reviews conducted under the AAR in so far as it is appropriate. The major
difference will be that once the child has been placed for adoption, the prospective
adopter, who has parental responsibility for the child, will always have a major role
and must be consulted, whereas the extent to which birth parents are consulted and
involved will be a matter for the agency’s discretion depending on the circumstances
of the case. It will rarely be appropriate, for example, for birth parents to attend a
review meeting once a child has been placed with prospective adopters. In this
context the provisions of AAR 45, which modify the application of parts of the 1989
Act, are relevant.The Adoption and Children Act 2002
106
38. It is of the greatest importance that, if the plan is for the child to be placed for
adoption and the agency is authorised to place the child but has not succeeded in
placing him, it continues to make strenuous efforts to find a suitable family. Selwyn et
al
1
found that sustaining a positive, proactive approach to family finding was key to
achieving adoption for ‘harder to place’ children. Efforts will include placing the
child’s details on the Adoption Register, speaking to other adoption agencies to see
if they have suitable prospective adopters, and advertising. In particular, if a
placement order is in force, AAR 36.7 stipulates that at the six month review in such
a case (ie nine months after the making of a placement order) the review must
establish why the child has not yet been placed, and consider whether the adoption
plan is still appropriate. A placement order places greater restrictions on the rights of
birth parents than does a care order, and the review will need to consider, among
other things, whether it may be more beneficial for the child to enable his birth
parents to enjoy the greater involvement in his life to which they would be entitled
under a care order. Section 24 of the Act enables the agency or the child to apply
for revocation of the placement order without the need to establish a change of
circumstances since the order was made, and it will not be appropriate for a
placement order to remain in force indefinitely with little or no chance of the child
being placed for adoption.
39. To ensure that the adoption panel is aware of such cases the agency should
inform the panel where there has been a review under AAR 36.7. Although there is
no legal role for the panel in the agency’s decision to reverse its earlier decision, it
will not only help to inform the panel’s own practice to know the outcome of cases it
has dealt with, but the gathering of such information will enable the panel to provide
formal feedback to the agency. In its statement of purpose the agency must indicate
the system it has for monitoring and evaluating the provision of its services. Where
the panel reports to the executive side (of the local authority) or the agency’s
trustees (for a VAA) it will be able to identify trends in the adoption work including, for
example, in the proportion of cases where the plan has been changed, and any
indication that, for example, a higher or lower proportion of placements have
disrupted.
40. Where a review is held under AAR 36.10 following a placement disruption, it
will be important for any information gathered at a disruption meeting to be available.
Where this is not available in time for the review under AAR 36.10 (which must be
held between 28 and 42 days after the child is returned to the agency) an additional
review should be scheduled at a time when the minutes of the disruption meeting are
available in order to inform future plans for the child. Again, it is important for the
panel to be kept informed about disruptions to enable it to include this information in
its formal feedback to the agency. Although there is no explicit requirement in the
1
Selwyn, J., Quinton, D., Harris, P., Wijedasa, D., Nawaz, S., Wood, M., (2008) Pathways to
permanence for children of black, Asian and mixed ethnicity: dilemmas, decision-making and
outcomes. Adoption Research Initiative studyChapter 5
107
AAR to this effect, the agency should notify those it previously notified of the
placement in accordance with AAR 35.6 that the child is no longer placed, provided
that it is clear that there is no prospect of reconciliation between the child and the
prospective adopter. Where the child is still looked after, the requirement to give
notification of any new placement will be governed by regulation 13 of the 2010
regulations.
41. The information gathered for a review, minutes of the review meeting and a
record of any decision made in the course of or as a result of the review must be
placed on the child’s case record. The agency must ensure that it notifies the child (if
of sufficient age and understanding) and the prospective adopter of the outcome of
the review, as well as any other person the agency considers relevant. This should
normally include anyone whose views were obtained and, of course, anyone directly
affected by the decision. The adoption placement plan should also be amended
where necessary. If the agency is unable to or otherwise fails to implement any
arrangements made as the result of a review, it is required by AAR 37.8 to inform the
IRO.
Independent reviewing officers: AAR 37
42. Where an agency is authorised to place a child for adoption the child will
continue to be looked after within the meaning of section 22 of the 1989 Act, or
accommodated by a voluntary agency within the meaning of section 59 of the Act.
The agency is therefore required to appoint an IRO to have responsibility for
reviewing the child’s case.
Withdrawal of consent: AAR 38, or application for revocation of
placement order
43. The Act allows the child's birth parents or guardian to withdraw their consent
to the child's adoptive placement at any time up to the point where the prospective
adopter applies for an adoption order. Where consent given under section 19 or 20
of the Act is withdrawn in accordance with section 52(8) of the Act, AAR 38 applies.
Section 19(1) provides that the agency is authorised to place a child for adoption
where the agency is satisfied that each parent or guardian has consented to the child
being placed for adoption, either with identified adopters or with adopters chosen by
the agency. Section 20(2) provides that, where a parent or guardian has given a
Section 19 consent, they may also give advance consent to the child's adoption by
identified adopters or by adopters chosen by the agency. Section 52(8) provides that
consent may be withdrawn either in form A106 under the Family Procedure Rules
2010 or by written notice given to the agency.
44. Where consent is withdrawn before the child has been placed for adoption,
the agency will not be able to make the placement unless, if it is a local authority, it The Adoption and Children Act 2002
108
obtains a placement order. Where the child has already been placed and the birth
parents request the child’s return, the agency will be required to comply with that
request unless, again in the case of a local authority, it applies for a placement order.
45. Under AAR 38.2, where consent to placement is withdrawn and the agency is
a local authority, it must immediately review its decision to place the child for
adoption. If it considers that the child should still be placed for adoption and, having
taken legal advice, it considers that the conditions set out in section 31(2) of the
1989 Act (conditions for making a care order) are likely to be satisfied, it must apply
for a placement order. If it does make this decision, it is required to notify the child’s
birth parents or guardian, (including a father without parental responsibility if possible
and appropriate) and, if the child is placed for adoption, the prospective adopter. The
making of an application for a placement order has the effect of restricting the birth
parents’ right to demand the return of the child until the application has been
disposed of.
46. Even if the child has not yet been placed for adoption, but a decision has
been made to place the child with particular adopters, it will be appropriate to notify
them of a decision to apply for a placement order. The agency will need to provide
support for them and help them to form a view as to whether they would still wish to
have the child placed with them if the placement order application is successful. As
far as possible they should be given an estimate of the time that may elapse before
the outcome of the application is known.
47. Where the agency is a VAA, it will not itself be able to apply for a placement
order. It is required by AAR 38.3 to consider whether it is appropriate to inform the
local authority for the area where the child lives, to enable that authority to consider
whether it should take action to protect the child, such as applying for an emergency
protection order.
Life story book: AAR 35
48. The child’s life story book helps them explore and understand their early
history and life before their adoption. It is important therefore for it to be written in a
simple and age-appropriate style and that the language and terms used are agreed
with the prospective adopter before the book is handed over. For example, some
prospective adopters use the term “tummy mummy” as a way of explaining to the
child who their biological mother is, whereas other prospective adopters use different
terms. The explanation of why the child was adopted should not include explicit or
distressing details. This information needs to be given to the child at a time when
they are emotionally able to cope and understand the information. Consideration
should be given on whether the surname of the birth parents, family and others
should be included in the life story book.Chapter 5
109
49. The child’s birth parents, family, foster carers and other people who know the
child should be encouraged to be involved in putting together the contents. They
may also be able to provide memorabilia significant to the child such as the child’s
hospital birth wristband; soft toys, letters, and celebration cards; first drawings and
paintings, and photographs of birth parents, siblings, family members and other
people who are important to the child. Where appropriate, this memorabilia should
be stored safely in a suitable box – a “memory box”.
50. The life story book and “memory box” should be co-ordinated by one person,
preferably the child’s social worker, and given to the child and prospective adopter in
stages. The first stage is at the second statutory review of the child’s placement with
the prospective adopter. The completed life story book should be presented within
ten working days of the adoption ceremony, ie the ceremony to celebrate the making
of the adoption order.
Later life letter: AAR 35
51. A social worker who knows the child, preferably the child’s social worker,
should prepare the later life letter for the child. The letter should explain the child’s
history from birth and be sufficiently detailed so that in the future the adolescent
child, or young adult, will have factual details about their birth family and their life
before adoption, and so be able to understand why they could not live with their birth
family, and why they were adopted. The letter should be given to the prospective
adopter within ten working days of the adoption ceremony, ie the ceremony to
celebrate the making of the adoption order.
52. The child’s birth family could be asked by the agency to write either their own
letters to the child or contributions to the agency’s letter, should the agency consider
either of these steps appropriate.The Adoption and Children Act 2002
110Chapter 6
111
Chapter 6: Safeguarding and permitting access to adoption
records
This part of the guidance explains the duties of an adoption agency in respect
of storing, safeguarding and providing access to its adoption case records
during the period up to the making of an adoption order (regulations 39-40 of
the Adoption Agencies Regulations 2005 (AAR)).
Sections 56-65 of the Adoption and Children Act 2002 (the Act) and Disclosure
of Adoption Information (Post-Commencement Adoptions) Regulations 2005
(AIR) cover the agency’s duties in respect of its adoption records after the
making of an adoption order. Guidance to those provisions is largely
contained in chapter 11. The provisions with regard to safe storage and
obligatory disclosure are, however, matched in both the AAR and the AIR and
the guidance in respect of those provisions is contained in this chapter.
In this chapter the term ‘adoption case records’ unless otherwise indicated
includes records subject to the AAR, the Adoption Agencies Regulations 1983
(the 1983 Regulations) and section 56 information under the AIR.
Storing records
1. Adoption agencies are required to set up case records both for children who
are being considered for adoption and for prospective adopters. The contents of
such records are dealt with in the relevant chapters. This chapter deals with the
specific duties in respect of storage and confidentiality of these records as set out in
AAR 39-44, and also with access to records. Specific provisions relating to the
statutory scheme for access to information after the adoption order is made are
contained in chapter 11, except as indicated above.
2. It should be borne in mind that adoption records, like other records, are
subject to the provisions of the Data Protection Act 1998, except where there is a
specific exemption. The exemption applying to adoption records relates to the right
of a person whose records are held (the ‘data subject’) to demand access to the
records under section 7 of that Act. The provisions of AAR 41 will prevail over
section 7 of the Data Protection Act 1998 by virtue of the Data Protection
(Miscellaneous Subject Access Exemptions) Order 2000/419 (as amended by SI
2005/3504),
3. The agency is required by AAR 39 and AIR 5 to ensure that adoption case
records, and all their contents, are kept in secure conditions at all times. In particular,
the agency is required by AAR 39 and AIR 5 to ensure that it takes all appropriate
measures to prevent the theft, unauthorised disclosure, loss or destruction of, or The Adoption and Children Act 2002
112
damage to, case records or their contents. This applies equally to information which
may not be stored at the agency’s main premises, or which is removed from the
office while the social worker is working on the case at another location.
4. The adoption agency should keep its security arrangements under review,
and any breaches of the security of records should be acted on promptly to prevent
any recurrence. All agency staff with responsibility for handling section 56
information should be clear about their duty to safeguard this information at all times.
5. There is nothing in the regulations to prevent the agency from transferring
paper records and documents to microfiche or other electronic or digital media but it
must be confident that the information can be retrieved during the next 100 years.
The agency should take particular care when transferring original documentation to
microfiche or other formats to ensure there is no electronic link between the care and
adoption records. Documents which are likely to be significant to the adopted
person, such as reports, cards or letters handwritten or signed by their birth parents
or other birth relatives, should always be preserved in their original format so that the
adopted person can see and handle them.
6. AAR 39 covers the storage of the whole case record, including any
information that may be stored electronically or digitally, or by other means; cards or
letters; the child’s life story information; and photographs or audio-visual film. Where
it is not practicable to keep some of these objects with the main electronic or paper
case record, this fact, and the whereabouts of the other information or objects should
be noted on the main case record. The duty to secure these objects securely applies
as it does to paper or electronic records.
7. Where a case record is not in active use, it should, if it is a paper record, or
stored on disk, CD-rom or microfiche, be stored in a lockable security cabinet or
secure room with access allowed only to authorised staff and any person as
provided for by AAR 42 and 43, or AIR 8 and 9. Where it is stored electronically or
digitally, the agency must ensure that appropriate systems are in place to safeguard
it. Confidential information stored on computers should be password protected, and
the system should ensure that only those properly authorised can have access to it.
The agency should not transmit information from the adoption case record outside
the agency by e-mail or facsimile unless its confidentiality can be assured.Chapter 6
113
Preserving records: AAR 40 and AIR 6
8. AAR 40 provides that the agency must keep the child’s case record and the
prospective adopter’s case record for as long as it considers appropriate. This
applies only to adoption case records where the case has not concluded with an
adoption order.
9. Where an adoption order is not made and the agency decides to close the
child’s adoption case record, it should transfer the information from this record to the
looked after case record, provided it does not duplicate information already on the
looked after case record. Regulation 50 of the Care Planning, Placement and Case
Review (England) Regulations 2010 stipulates that records on looked after children
should be retained for at least 75 years from the birth of the child or for fifteen years
after the child’s death (under the age of 18), whichever is the shorter period. If the
child has never been looked after, the agency should destroy the records when no
further action is necessary. An example of when this may be appropriate is if the
possibility of adoption of a baby was discussed before the child’s birth, but the baby
remained with the birth parents.
10. In considering how long to retain prospective adopters’ case records the
agency needs to be mindful that one of the principles of the Data Protection Act is
that personal data should only be kept for as long as is necessary. Prospective
adopters can be asked if they want their case records retained – in case they may
wish to reapply to the agency or another adoption agency to adopt again - and to
give their consent to the storage of the case record for whatever period is agreed,
after which the record will be securely destroyed.
11. AIR 6 requires the agency to keep all section 56 information for a minimum of
100 years from the date of the adoption order. This duty applies to information stored
in any format.
12. Where the agency decides to destroy case records or the indexes to those
case records, if any, it must treat this as confidential waste and dispose of it
accordingly. Where the records are electronic, local destruction procedures should
be followed.
Confidentiality: AAR 41
13. The agency is required by AAR 41 to treat the contents of case records as
confidential, subject to the requirements of AAR 42.The Adoption and Children Act 2002
114
Access and disclosure: AAR 42
14. AAR 42 applies to access to and disclosure of adoption records up to the
point where an adoption order is made. AAR 42.1 sets out where the agency is
required to provide access to information; these provisions are similar to those in AIR
9 with regard to disclosure after the making of the adoption order. AAR 42.2 sets out
the circumstances where an agency has discretion to provide access, such as when
the child’s agency needs information from the prospective adopter’s agency during
the matching and placement process.
Obligatory access to or disclosure from records: AAR 42 and AIR 9
15. The following guidance relates to the agency’s duties under both AAR 42 and
AIR 9 where it is required to make disclosure to authorised people under the
provisions of either set of regulations. The duties relate to adoption case records
both before and after the making of an adoption order. The same duties in essence
also apply to case records kept under regulation 14 of the 1983 Regulations where
the adoption order was made before 30 December 2005.
16. In the following circumstances, the agency is required to provide access to
information from the case record to the person or body indicated. Where the
adoption order has been made, on or after 30 December 2005, the requirement is
contained in the AIR. Where no adoption order has yet been made, the AAR apply.
The AIR refer to the information as ‘section 56 information’; the AAR refer to ‘case
records.’
To those holding an inquiry under sections 3 and 4 of the Children Act
2004 (inquiries held by the Children’s Commissioner) or under the
Inquiries Act 2005
Where the agency has concerns about allowing the inquiry access to
the information, for example if the inquiry is being held in public, it may
seek the prior written agreement of the inquiry that any information
disclosed will be properly safeguarded and its confidentiality
maintained.
To the Secretary of State
The Secretary of State may seek access to, or the disclosure of,
adoption case records or section 56 information from an adoption
agency in certain circumstances. This may be in relation to a decision
as to whether to establish an inquiry under sections 3 and 4 of the
Children Act 2004 or under the Inquiries Act 2005. This regulation also
provides the Secretary of State with the general authority to seek Chapter 6
115
information from adoption agencies, including the information provided
in statistical returns to central Government.
To the registration authority
Part II of the Care Standards Act 2000 provides for applications by a
voluntary adoption agency (VAA) for registration with the registration
authority, and for refusals and cancellations of registrations. The
agency may be required by the registration authority to disclose
information from its case records where the authority is considering
whether to cancel a VAA’s registration, or an appeal against such a
decision.
Part III of the Care Standards Act 2000 provides the registration
authority with the powers to regulate and inspect local authority
adoption and fostering services. This gives the registration authority
powers to require a local authority adoption agency to disclose any
information relating to an inspection of its adoption service.
To the Commission for Local Administration in England, for the
purposes of any investigation conducted in accordance with Part 3 of
that Act, subject to the provisions of section 29(7) and 32(3) of the
Local Government Act 1974 (the 1974 Act) (investigations and
disclosure)
This regulation applies where the Local Government Ombudsman is
investigating a complaint involving a local authority adoption agency
and needs access to information from the agency’s case records in
order to do so. The Ombudsman has no power to investigate the
activities of a VAA. But where a VAA has provided, for example, a
prospective adopter’s case record to a local authority in an interagency placement, this will be placed on the record set up by the local
authority under AAR 31.8 and thus subject to disclosure to the Local
Government Ombudsman.
A local authority may refuse to disclose certain information to the
Ombudsman where the authority would not be required to disclose it to
the High Court (see section 29(7) of the 1974 Act). A local authority
may also seek to serve a statutory notice on the Ombudsman under
section 32(3) of the 1974 Act. Such a notice would preclude the
Ombudsman from disclosing to anyone else any information that has
been disclosed to him during the course of an investigation. The Adoption and Children Act 2002
116
To any person appointed by the adoption agency for the purposes of
the consideration by the agency of any representations (including
complaints)
Sections 26(3) and 26(3B) of the Children Act 1989 (the 1989 Act)
require local authorities to establish a procedure for considering
representations, including complaints, and for involving an independent
person in that consideration. The Voluntary Adoption Agencies and
Adoption Agencies (Miscellaneous Amendments) Regulations 2003
require VAAs to establish a complaints procedure. Regulation 11 of
those regulations requires the agency to establish a written complaints
procedure and regulation 12 provides for complaints to be fully
investigated. Where an independent person has been appointed by the
agency to consider any complaint or representations in relation to
adoption services, they are likely to require access to the agency’s
case records in order properly to investigate the complaint.
In relation to adoption services, service users are children who may be
adopted, birth parents and guardians, prospective adopters, adopted
people and adoptive parents or any other person who the agency
considers has sufficient interest in a child who is or may be adopted to
warrant his representations being considered by them. See section
3(1) of the Act.
To a panel constituted under section 12 of the Act to consider a
qualifying determination.
Section 12 of the Act provides for an independent review mechanism
(IRM) to be established to review a range of qualifying determinations
made by the agency. Qualifying determinations may be made in
respect of:
the suitability of a prospective adopter to adopt under AAR 27; and
disclosure of ‘protected information’ under section 61 of the Act
where AIR 15 sets out the duties of an agency where application is
made to the IRM.
Where the case record of a prospective adopter set up under AAR 22
is held under AAR 39, AAR 42 requires the agency to provide access
to its case records and disclose information as may be required by and
to the extent of the AAR. Since AAR 28 requires the prospective
adopter’s case records and other relevant documents to be provided to Chapter 6
117
the IRM, this constitutes a requirement to disclose information to the
IRM.
Where the adoption agency makes a qualifying determination in
relation to an application for the disclosure of protected information
under section 61 of the Act, the process to be followed by the agency is
set out in AIR 15. AIR 9.f also places a general duty on the adoption
agency to supply any section 56 information requested by the
Secretary of State.
To a court having power to make an order under the Act or the 1989
Act
Sections 43 and 44(5) of the Act require the adoption agency to submit
a report to the court on the suitability of the applicants and any relevant
welfare issue under section 1 of the Act. Once an adoption order has
been made, and the case record is subject to the provisions of the AIR,
the agency may still be required to supply information to the court
where, for example, an adoption agency decision is the subject of a
judicial review or in connection with proceedings instigated by the
registration authority. The agency is required to provide access to, or
disclosure of, any section 56 information requested by the court.
To an officer of CAFCASS or a Welsh family proceedings officer in the
discharge of their duties under the Act
This will apply to records held under the AAR prior to the making of an
adoption order. The duties of the CAFCASS officer are set out in
section 102 of the Act. Section 103 provides that they may exercise a
right of access to adoption agency records to fulfil their duties under
the Act. This includes safeguarding the child’s rights in an application
for a placement order, or if they are appointed to do so in an
application for an adoption order, submitting reports to the court
relating to the child’s welfare if so ordered, and witnessing consent to
the making of an adoption order. The CAFCASS officer has no right to
see the adoption case records when witnessing consent to placement
under section 19 of the Act; the information necessary for the
CAFCASS officer to fulfil their duty will be supplied by the agency
under AAR 20.
To the Public Services Ombudsman for Wales for an inquiry held by
him under section 2 of the Public Services Ombudsman (Wales) Act
2005The Adoption and Children Act 2002
118
Similar considerations will apply here as in a request from the English
Local Government Ombudsman.
17. AAR 42 also makes it clear that the agency must disclose information from its
case records to the extent specified in other parts of the AAR. This would include, for
example:
notifying the child’s parents of the agency’s decision that the child
should be placed for adoption under AAR 19;
notifying the prospective adopter of the agency’s decision to approve
them or not as suitable to adopt under AAR 27;
where a prospective adopter requests a review by an independent
review panel, sending information to that panel under AAR 28;
providing the prospective adopter with a copy of the child’s
permanence report and the adoption placement report under AAR 31;
where the agency decides to place a child for adoption with a particular
prospective adopter, notifying them and the child’s parents of the
decision under AAR 33; and
providing the prospective adopter with the adoption placement plan
under AAR 35.
Discretionary access or disclosure to records
18. AAR 42.2 gives the agency the discretion to allow access to its case records
and disclose the information from them as it thinks fit for the purposes of carrying out
its functions as an adoption agency. For example, this may include disclosing
information when the child’s agency needs information from the prospective
adopter’s agency during the matching and placement process or disclosing
information to the prospective adopter prior to the adoption order, such as the child’s
life story information.
Records of disclosure: AAR 42.3 and AIR 11
19. Under AAR 42.3, where the agency discloses information from its records,
whether because of a requirement in AAR 42.1 or in the exercise of its discretion
under AAR 42.2, it must keep a written record of access and disclosure. Under AIR
11, a similar duty applies, but is spelt out in more detail. The record must include:
a description of the information disclosed;
the date on which the disclosure was made;
the person to whom the information was disclosed; andChapter 6
119
the reason for the disclosure.
20. It is important that the agency keeps a detailed and accurate record of any
information disclosed to any person by virtue of AIR 8 or 9. This is particularly
important where the agency has exercised its discretion to disclose information by
virtue of AIR 8.1 or where it has entrusted protected information to an adoption
support agency or an adoption agency under AIR 8.2. It is important that the agency
is able to verify at any given time details of the information it has previously disclosed
under these regulations.
Transfer of records: AAR 43
21. AAR 43 permits the agency to transfer a copy of a case record, or part of that
record, to another adoption agency when it considers this to be in the interests of the
child or prospective adopter to whom the record relates. The agency is required to
keep a written record of any such transfer.
22. If a VAA intends to cease to act or exist as a VAA it must transfer its case
records to another adoption agency (subject to the prior approval of the registration
authority) or transfer them to the local authority for the area in which its principal
office is situated, and notify the registration authority in writing of the transfer.
23. Where the VAA amalgamates with another VAA to form a new VAA, it must
transfer its records to the new VAA and notify the registration authority in writing of
the transfer.The Adoption and Children Act 2002
120Chapter 7
121
Chapter 7: Contact
This part of the guidance explains the duties of an adoption agency in relation
to contact.
Contact
1. One of the key principles of the Children Act 1989 (the 1989 Act) is the
presumption that there should be continued contact between the child and their
family while the child is in the care of the local authority. This is appropriate for care
provided under the 1989 Act, where the underlying philosophy is to work in
partnership with the family and towards reunification where possible, provided that
this is consistent with the child’s welfare. However, the purpose of an adoptive
placement is fundamentally different as the intention is that the child should become
part of another family. Therefore, where the agency is authorised to place the child
for adoption, there should be no general presumption for or against contact. This is
why regulation 45.2 of the Adoption Agencies Regulations 2005 (AAR) removes the
general duty in the 1989 Act to promote contact.
2. Contact between adopted children and their birth families can be beneficial,
but research
1
has also highlighted that any form of contact needs careful planning
and support, and that children’s views and their needs for contact may change over
time so any contact plans must be kept under review
3. Where the agency decides that a child should be placed for adoption, AAR 46
applies. This requires the agency to consider what the contact arrangements – the
arrangements that allow any person contact with the child – will be when the agency
is authorised to place the child for adoption. Until the agency is authorised to place
the child for adoption, the 1989 Act will apply to contact, but it is necessary for the
agency to have formed a view about future contact so that this can be discussed with
the people affected, and considered by the court on any application for a placement
order. Some advice on positive and problematic contact arrangements are
suggested in the Supporting direct contact after adoption research.
4. Where consent is given under section 19 of the Adoption and Children Act
2002 (the Act) or if a placement order is made, the adoption agency is authorised to
place the child for adoption. With authority to place the child for adoption, the contact
provisions in sections 26 and 27 of the Act apply. Where the adoption agency is
authorised to place the child for adoption any existing 1989 Act contact order ceases
1
Neil, E., Young, J., Cossar, J., Jones, C. and Lorgelly, P. (2010) Supporting direct contact after
adoption, Adoption Research Initiative study. The Adoption and Children Act 2002
122
to have effect; birth parents and others may apply to the court for a contact order
under section 26 of the Act.
5. Before making a placement order, section 27(4) of the Act requires the court
to consider the arrangements the agency has made or proposes to make for contact
and to invite the parties to the proceedings to comment on those arrangements.
6. When the adoption order is made it also extinguishes any order under the
1989 Act, and any contact order under section 26 of the Act. Section 46(6) imposes
a duty on the court, when making an adoption order, to consider the existing and
proposed arrangements for contact with the child, and to seek the views of the
parties to the proceedings on those arrangements. The court will be able to make a
contact order under section 8 of the 1989 Act (a section 8 contact order), where it
considers that to be in the best interests of the child.
7. While section 46(6) of the Act places an explicit duty on the court to consider
whether there should be contact there is no presumption that this must be the case.
At all times, the child's welfare and best interests drive any arrangements for contact.
8. Contact arrangements should be focused on, and shaped around, the child’s
needs. The child’s welfare is the paramount consideration at all times and each
child’s needs for contact should be individually considered. For many children,
relationships with members of their family, previous carers and others are valued.
For some children some form of contact may provide a positive aid to a successful
placement with a new family, but all concerned need to understand that the purpose
of any such contact, if it is to take place, is fundamentally different from the contact
that would normally be arranged between children in care and their families.
9. Unauthorised contact will continue to be a challenge for children, their birth
and adoptive parents and social workers alike. A new, and very real, challenge
comes when this contact is via the internet, for example, social networks, Smart
Phones and hand held gaming devises which have wireless connectivity. Social
networking is fast becoming the preferred method of communication for children and
adults alike. It is important that social workers help children, birth and adoptive
parents to understand the implications of disclosing personal information on social
networking sites, and the harm unauthorised or unmediated contact can have.
Agencies should provide help and support in such cases.
10. Arrangements which tend to have the best chance of success are those which
are mutually agreed between the birth family, relatives and others and the adopters,
and have the details and expectations set out and confirmed in writing. The
importance of clear boundaries and expectations for all parties in contact
arrangements is highlighted in the Supporting direct contact after adoption research.Chapter 7
123
11. Where siblings cannot be placed together with the same family, it is important
to ensure that contact arrangements between them are given very careful attention
and plans for maintaining contact are robust. Contact arrangements may need to be
varied as the children’s relationships and need for contact change over time. Contact
arrangements with a child’s relatives may take the form of indirect contact, with
letters and cards and some background information about the child’s progress being
sent via a social worker. The practicalities of such arrangements require careful
planning, see chapter 4.
12. In some cases there may be some form of direct contact. Where the child has
siblings who are placed separately, arrangements may be made for visits and family
meetings between adoptive families. Sometimes, too, visits from or meetings with
grandparents, or former foster carers, may be beneficial to the child. With
appropriate preparation and support, direct contact with a birth parent or guardian
may, for example, help to reassure a child who is anxious about their parent’s wellbeing.
13. AAR 46.3 stipulates that in coming to a decision on the contact arrangements,
the agency is required to:
take into account the wishes and feelings of the parent or guardian of the
child. Where the father of the child does not have parental responsibility
for the child and his identity and whereabouts are known to the agency –
and the agency considers it appropriate – it is also required to take into
account his wishes and feelings;
take into account any advice given by the adoption panel about the
proposed contact arrangements in accordance with AAR 18.3; and
have regard to the considerations set out in section 1(2) and (4) of the Act.
Section 1(2) provides that the paramount consideration of the court or
adoption agency must be the child's welfare, throughout their life. Section
1(4) provides that the court or adoption agency must have regard to a
number of matters, which include the relationship the child has with
relatives, and with any other person, and the likelihood and value of any
such relationship continuing. At all times it must be the child's welfare and
best interests that decide any arrangements for contact. There should be
no presumption for or against contact.
14. AAR 46.4 requires the agency to notify the following people of the contact
arrangements:The Adoption and Children Act 2002
124
the child, if the agency considers the child is of sufficient age and
understanding;
the parent or guardian, if their whereabouts are known to the agency,
including the father of the child where he does not have parental
responsibility for the child, his identity and whereabouts are known to the
agency and the agency considers it appropriate;
any person who had provision for contact under the 1989 Act which
ceased to have effect by virtue of section 26(1) of the Act and any other
person the agency considers relevant.
15. Where the agency decides to place a child for adoption with a particular
prospective adopter, AAR 46.5 requires it to review the contact arrangements in the
light of the prospective adopter’s views and any advice given by the adoption panel
in accordance with AAR 32.3.
16. If the agency proposes to change the contact arrangements which affects
anyone mentioned in AAR 46.4, it must seek that person’s views and take them into
account in deciding the contact arrangements while the child is placed for adoption.
17. AAR 46.7 reiterates the agency’s duty to set out the contact arrangements in
the adoption placement plan and to keep them under review.
Variation from the terms of a contact order
18. AAR 47 contains provisions to deal with cases where a variation from the
terms of a contact order under section 26 of the Act may be appropriate or
necessary. Under section 27 of the Act such a variation may be by unilateral
decision of the agency, for a maximum of seven days, or by agreement with all those
affected.
19. Where the agency decides under section 27(2) of the Act to refuse to allow
the contact that would be required by an order made under section 26 of the Act, it is
required by AAR 47 to inform the persons specified in AAR 47.3 as soon as the
decision is made. The agency is also required to notify them in writing of the
decision, the date of the decision, the reasons for the decision and the duration of
the period. Unless the case is urgent, the appropriate course is for the agency, if it
cannot reach agreement as set out below, to apply to the court under section 27(1)
for a variation or revocation of the order.
20. AAR 47.2 sets out the steps that must be taken when the agency and a
person entitled to contact under a section 26 order reach an agreement to vary the
arrangements for contact. Any agreement is subject to the following conditions:Chapter 7
125
where the child is of sufficient age and understanding, subject to their
agreement;
where the child is placed for adoption, subject to consultation before the
agreement is reached, with the prospective adopter; and
written confirmation by the agency to the persons specified in AAR 47.3 of
the terms of that agreement.
21. The people specified in AAR 47.3 are:
the child, if the agency considers they are of sufficient age and
understanding;
the person who had provision for contact under section 26; and
the prospective adopter, if the child is placed for adoption.
Contact after adoption
22. Before making an adoption order, the court will consider whether there should
be arrangements for allowing any person contact with the child. At this time an
application may be made for a contact order under section 8 of the 1989 Act. Such
orders are however relatively rare, and where some form of continuing contact is
proposed, whether direct or indirect, it is more likely that this will be a matter for
agreement between the person concerned and the adopters. The court may however
make a note on the court file about the agreement reached.
23. Once the adoption order has been made, birth parents lose their status as
parents, and no longer have a right to apply for a section 8 contact order without the
leave of the court. Other birth relatives, or any other person connected to the child
would also need the court’s leave to make an application.
24. The circumstances in which a birth parent or relative would be most likely to
seek the court’s leave to apply for a section 8 contact order after adoption are those
where an agreement for some form of continuing contact had been made, but was
not adhered to. The agency may have an important role to play in supporting the
child and the adults concerned in such a situation. Assistance, including mediation
services, in relation to contact between an adoptive child and birth relatives or other
connected people is one of the adoption support services that local authorities must
make available under regulation 3 of the Adoption Support Services Regulations
2005 (ASR) (see chapter 9). With the agreement of the adoptive parents the local
authority may be able to make enquiries as to the reasons why the contact agreed The Adoption and Children Act 2002
126
has not taken place, and to consider whether it would be in the interests of the child’s
welfare to offer support to enable it to resume. Support for the person who has been
denied the expected contact will also be necessary, and could if appropriate be
provided by another adoption agency or adoption support agency.
25. The case of Re T (Adopted children: contact) [1995] 3 WLR 793, [1995] 2 FLR
792 suggested that a refusal by adoptive parents to adhere to an agreement for
contact may be sufficient to enable the birth relative concerned to obtain leave to
apply for a section 8 contact order. The adoptive parents in this situation may wish
to obtain legal representation. The local authority should also provide as much
support as possible to minimise the risk of an adverse effect on the child’s welfare. A
mediated outcome is more likely to be successful than an order obtained after a
disputed court application.
26. Where an application for leave to apply for a section 8 contact order is made
in the absence of any previous agreement for contact, it is unlikely to succeed
without strong reasons. It may be unnecessary even to involve the adoptive parents,
who will only need to be notified of the application if the court has decided that there
may be a case for granting leave. In the case of Re C (A Minor) (Adopted child)
[1993] 3 WLR 85, [1993] 2 FLR 431 the court considered that in most such cases the
local authority involved in the original adoption proceedings should be notified.
27. Where a section 8 contact order has been made, whether at the time of the
adoption order or subsequently, it is open to those named in the order to apply to the
court for the order to be varied. Again, in these circumstances, the local authority
should be ready to assist with support and/or mediation in the interests of the child’s
welfare.
Summary of contact requirements, chapters 2-5, 8 and 9
28. The following summarises the duties of the agency in respect of contact as
set out in the AAR and the Adoption Support Services Regulations 2005 (ASR) and
this guidance.
Chapter 2
29. The agency must, so far as is reasonably practicable:
ascertain the child’s wishes and feelings regarding contact with their
parent or guardian or other relative or with any other person the agency
considers relevant (AAR 13 and regulation 36 of the Adoptions with a
Foreign Element Regulations 2005 (FER)); andChapter 7
127
ascertain the wishes and feelings of the birth parent, guardian or any other
person the agency considers relevant about contact with the child if the
agency is authorised to place the child for adoption or the child is adopted
(AAR 14 and FER 37).
30. Counselling of the child’s parent or guardian should include the consequences
of the adoption process for contact with the child and how this will change if the
agency is given authority to place the child for adoption. The counselling should
explain that the 1989 Act contact obligations would be replaced by the contact
arrangements provided for by the AAR where the agency obtains authority to place
the child. This can be difficult information for birth parents and guardians to accept.
It is important that they are offered independent support (through their independent
support worker) regarding this and other matters related to the adoption. Research
1
has shown that birth relatives benefit from support but can be hard to reach, and that
take up of services is low. It can help to offer a flexible range of services, available at
different points in time and with multiple referral routes. The agency should also
explain the right that the parent or guardian and others have to apply for a contact
order under sections 26(2) and 26(3) of the Act.
31. The child’s permanence report must include:
the wishes and feelings of the child regarding contact with their parent or
guardian or other relative or with any other person the agency considers
relevant
the wishes and feelings of the child’s parent or guardian, and of any other
person the agency considers relevant, regarding contact with the child if
the agency is authorised to place the child for adoption or the child is
adopted; and
the agency’s views about the child’s need for contact with their parent or
guardian or other relative or with any other person the agency considers
relevant and the arrangements the agency proposes to make for allowing
any person contact with the child.
32. Where the panel makes a recommendation to the agency that the child should
be placed for adoption, it is required to consider and may at the same time give
advice to the agency about the arrangements which the agency proposes to make
for allowing any person contact with the child (AAR 18.3). The decision maker may
also express a view in relation to the panel’s advice on contact, and any such view
should be recorded on the child’s case record.
1
Neil, E., Sellick, C., Young, J., Cossar, J., and Lorgelly, P. (2010) Helping Birth Families: A study of
service provision, cost and outcomes, Adoption Research Initiative study.The Adoption and Children Act 2002
128
Chapter 3
33. The preparation of the prospective adopter should include giving information
to the prospective adopter about contact between a child and their parent or
guardian or other relatives where a child is authorised to be placed for adoption or is
adopted (AAR 24).
34. The prospective adopter’s report prepared for the adoption panel under AAR
25 and Schedule 4 must include the views and feelings of the prospective adopter
about contact.
Chapter 4
35. Where the agency is considering placing a child with prospective adopter it
must ascertain the view of the prospective adopter about the arrangements that the
agency proposes in relation to contact with the child (AAR 31.1).
36. Under AAR 31.2 when the agency considers that a proposed placement
should proceed, it must consider the arrangements for contact, and include details of
these in the adoption placement report. Where the views of the parents or other
relevant people have been ascertained with regard to the proposed arrangements for
contact, these should also be included in the placement report, see chapter 4.
37. When the adoption panel considers the proposed placement it must consider
the arrangements the agency proposes to make for allowing any person contact with
the child (AAR 32.3). Where the panel makes a recommendation that the child
should be placed for adoption with a particular prospective adopter, the panel may at
the same time give advice to the agency about the matters set out under AAR 32.3,
which include contact arrangements (AAR 32.4).
38. When the agency’s decision maker makes a decision that the child should be
placed with a particular adopter, they may express a view on the advice given by the
panel, including any advice on contact, see chapter 4.
Chapter 5
39. The adoption placement plan that must be prepared when the agency decides
to place the child with a particular prospective adopter must include any
arrangements for contact (AAR 35).
40. The agency must keep the arrangements for contact under review, and will
have to consider at each review under AAR 36.6 the existing arrangements for
contact and whether they should continue or be altered.Chapter 7
129
Chapter 8
41. Before making a placement order, the court must consider contact, and may
make a contact order under section 26 of the Act.
42. Once a child is authorised to be placed for adoption (and also in cases where
a child under six weeks old has been placed for adoption) the provisions in the 1989
Act regarding contact cease to apply and contact is dealt with under sections 26 and
27 of the Act. The local authority no longer has an obligation to promote contact
between the child and birth family members. The court may however make an order
for contact under section 26 of the Act, and may revoke or vary a section 26 order
under section 27 of the Act. The court may make an order under section 26 even if
there has not been an application.
43. In a case where the child is placed or about to be placed with a prospective
adopter whose identity is not to be disclosed to other parties, the agency will need to
ask the court to make arrangements to preserve their anonymity.
44. On the making of an adoption order any section 26 contact order will cease to
have effect. Section 26(5) of the Act however permits an application to be made for a
contact order under section 8 of the 1989 Act when it is to be heard at the same time
as an application for an adoption order.
45. If no section 8 contact order is made at the time of the adoption order, a birth
parent or relative who wishes to apply for contact will need first to obtain the leave of
the court. The application for leave, and the application itself if leave is granted, will
be governed by the provisions of the 1989 Act.
Chapter 9
46. One of the prescribed adoption support services under ASR 3 is assistance,
including mediation services, in relation to arrangements for contact between an
adoptive child and birth relatives or other related people. The need for such support
will form part of the assessment of support needs for the child, adoptive family and
parents or others who may be having contact. Support services, including support for
contact, will form part of the adoption placement plan drawn up and kept under
review under AAR 35 and 36.
47. Once an adoption order has been made, any plan for adoption support that
includes assistance with contact should be kept under review according to the
provisions in ASR19.The Adoption and Children Act 2002
130Chapter 8
131
Chapter 8: Adoption Agency and Local Authority Responsibilities
in Court proceedings
This chapter addresses the duties of adoption agencies (and local authorities
in ‘non-agency’ adoption cases) in court proceedings. In addition to the
specific responsibilities imposed by the legislation and the Family Procedure
Rules 2010, guidance is given on issues that must be addressed in
coordinating adoption agency functions with on-going court proceedings
under the Children Act 1989 for a care order. Directors of Children’s Services
should develop and sustain constructive links between their adoption and
looked after children’s teams and the courts in their area with the aim of jointly
minimising delays in court proceedings.
Introduction
1. Chapters 1-7 of this guidance set out the processes that adoption agencies
must follow in order to achieve an adoption placement, but no adoption can be
finalised without a court order. In addition, a child cannot be placed for adoption
without a placement order made by a court, except where the parent gives consent
to their child being placed for adoption.
2. The Family Procedure Rules 2010 (the Rules) and their accompanying
Practice Directions come into force from 6 April 2011 and set out in detail the
procedure to be followed in court proceedings. The adoption agency (or local
authority in a non-agency case) has an important part to play in these proceedings.
Section 1(3) of the Adoption and Children Act 2002 (the Act) requires courts and
agencies to be mindful of the prejudicial effect delay has on children. Rule 1 includes
the need to ensure that cases are dealt with expeditiously and fairly as part of the
‘overriding objective’ of the Rules. All parties, including the agency/local authority,
must help the court in furthering this overriding objective. This will include
compliance with timetables set by the court.
Court proceedings
Placement order applications
3. As explained in chapters 2, 4 and 5 the decisions by the agency decisionmaker that a child ‘should be placed for adoption’, or should be placed for adoption
with a particular prospective adopter, are necessary stages in the process. But
these decisions can only be implemented if the agency is ‘authorised to place the
child for adoption.’ Where the agency does not have authorisation through parental The Adoption and Children Act 2002
132
consent, it will be necessary to apply for a placement order. An application for a
placement order must be made:
if the child is accommodated but no adoption agency is authorised to
place the child for adoption provided that either:
o the child has no parent or guardian, or
o the authority considers that the grounds in section 31(2) of the
Children Act 1989 (the1989 Act) are met, (section 22(1) of the Act);
or
if there are care proceedings in train (whether or not the parents are
prepared to consent to placement for adoption); or
if a care order is in existence but the parents will not consent to the
child being placed for adoption (section 22(2) of the Act).
The local authority may apply for a placement order if there is a care order and
parental consent has been given under section 19 of the Act but the local authority
believe that parental consent may be withdrawn, see section 22(3) of the Act.
4. If a child has been placed for adoption by consent given under section 19 of
the Act, but the parent subsequently withdraws the consent, the agency must
immediately to review their decision to place the child for adoption (see AAR 38 and
chapter 5). If they consider that the child should still be placed for adoption, and that
there are grounds for a placement order, the application should be made
immediately. If a parent is seeking the return of the child, the prospective adopter
and the agency will need to comply with the request within 14 days, unless the
placement order application has been issued before then. Where a child has been
placed by a voluntary adoption agency (VAA), that agency will not be able to apply
for a placement order, and any steps to secure the child’s position will need to be
taken by the local authority if it agrees that the child is at risk of harm if returned to
the parent.
Timing of application
5. Where it is decided that a child should be placed for adoption during the
course of care proceedings, the local authority must apply for a placement order. It
is essential that the application be issued without delay. The local authority’s legal
advisers should be kept fully up to date with developments so that the application
can be made quickly. It is important that adoption agencies coordinate their actions
with the court proceedings.Chapter 8
133
Making the application
6. Applications for placement orders are made by submitting form A50 to the
court. This should be completed by or with the advice and assistance of the local
authority legal adviser. It is important that up-to-date details are included in the form.
To avoid delays in court proceedings, it is vital that agencies keep in touch with the
parent or guardian, for example through the independent support worker, so that
their current address(es) is known. If their current whereabouts are not known, it will
be necessary to provide details to the court of the attempts made to locate them and
the date when any address was last known to be current. In the majority of cases,
the application for a placement order will be made with or during the course of an
application for a care order under section 31 of the 1989 Act. In this case, the
application will of course be made to the court hearing the care proceedings. A
freestanding application may be made to any family proceedings court or to a county
court, which is an adoption centre. In some circumstances, it may be appropriate to
make the application to the court, which has made any existing care order unless
this was made by a county court, which is not an adoption centre (see Allocation and
Transfer of Proceedings Order 2008).
7. Form A50 sets out the documents that will need to be filed with the
application. The report prepared in accordance with Rule 14.11 and in accordance
with Practice Direction 14C of the Rules should be included. It is not a requirement of
the Rules for this to be filed with the application, but it will save time if it is.
The statement of facts
8. The grounds for dispensing with consent are that the parent cannot be found,
or is incapable of consenting, or that the child’s welfare requires the consent to be
dispensed with. The local authority will need to provide the information necessary to
their legal adviser for them to draft the statement of facts, setting out the facts on
which the local authority relies to establish that one of these grounds is made out.
9. If it is claimed that the parent cannot be found, the statement of facts will need
to provide evidence that rigorous investigations have been made by the local
authority to try to find them. As well as the obvious steps of contacting the parent’s
independent support worker, writing to and visiting their last known address and
place of work, emailing and sending text messages, other methods can be used.
These include making enquiries through other members of the family, the parent’s
GP, electoral rolls, telephone directories, the local housing authority and possibly by
placing advertisements.
10. For the parent to be incapable of consenting, the court will need to be
satisfied that they are unable to make a decision for them self in relation to the
adoption ‘because of an impairment of, or disturbance in the functioning of the mind The Adoption and Children Act 2002
134
or brain’. See section 2(1) of the Mental Capacity Act 2005, and note that the parent
may be incapable due to their minority; it will normally fall to their solicitor to
determine whether they are able to give instructions. This is likely to require
appropriate medical evidence, and a parent who is incapable of consenting is also
likely to be incapable of conducting the proceedings and will need to have a ‘litigation
friend’ (who may be the Official Solicitor) to conduct the proceedings on their behalf.
In cases where the Official Solicitor represented the parent in earlier care
proceedings, the local authority should notify the Official Solicitor of the proposed
application.
11. If it is claimed that the child’s welfare requires the court to dispense with
parental consent, the statement of facts will need to include information about the
child’s history and long-term needs and the capacity of the parents to meet those
needs. It will need to show also, why the child’s welfare requires adoption, rather
than any other order. The statement of fact should include any findings in earlier care
proceedings and the judgment, if there has already been a care order with an
adoption care plan.
12. The statement of facts will be sent to the parent. It is important that the
statement of fact does not include any information which might identify the
prospective adopter where they have already been chosen and their identity is not to
be disclosed to the parents.
Appointment of children’s guardian
13. Since the child is a party to any application for a placement order, the court
will appoint a children’s guardian under Rule 16.3 unless it is satisfied that it is not
necessary to do so to safeguard the interests of the child. Where there are combined
care and placement order applications the guardian appointed in the care
proceedings will usually be appointed for the placement order application.
Contact
14. Before making a placement order the court must consider contact, and may
make a contact order under section 26 of the Act. The application form therefore
requires information to be given about the current and proposed contact
arrangements, and Practice Direction 14C also contains information about contact,
the child’s and parents’ wishes in this regard, and the local authority’s
recommendations.
Combined care and placement order applications
15. If care proceedings are in progress at the time that the local authority’s
decision-maker decides that a child should be placed for adoption, section 22(2) of Chapter 8
135
the Act requires it to issue an application for a placement order. If this decision is
made before any care proceedings are commenced, the local authority has the
option of applying for a placement order alone, but it will usually be preferable to
apply for both a care and a placement order. If this were done, then although the
care order will not have effect while the placement order is in force, it would remain
in force if the placement order were subsequently revoked. In the case of Re P-B (A
Child) [2006] EWCA Civ 1016 the court makes clear that it is not permissible to issue
the placement order application before the decision-maker has decided that the child
should be placed for adoption. For further guidance on the issue of care proceedings
in these circumstances, see the guidance to the Children Act 1989 (Volume 1 Court
Orders).
16. It is essential that the child’s social worker, the agency adviser to the adoption
panel and the local authority’s legal advisers, work closely together to ensure that
each is kept aware of the progress of the case (see chapter 2). Each team should be
prepared to act quickly. It will be the responsibility of the child’s social worker, with
the assistance of the adoption team, to have prepared as much of the Practice
Direction 14C report as possible even before the case goes to the agency’s decisionmaker . This is so that the report can be finalised and lodged with the court promptly
if the decision is made that the child should be placed for adoption and the
placement order application is issued. Agencies may find it helpful to devise their
own protocols to fit in with local arrangements.
Revocation of placement orders
Application by birth parents
17. A parent may apply, with the leave of the court, for revocation of a placement
order provided the child is not at the time placed for adoption. The court may only
give leave for an application if it is satisfied that there has been a change of
circumstances since the order was made but, even if there has been a change of
circumstances, the decision on whether to give leave will be a matter for the exercise
of the court’s discretion. In the case of Coventry City Council v PG [2011] EWCA Civ.
729, the Court of Appeal held that a child is not “placed” for adoption until he or she
begins to live with the prospective adopters or, if he or she is already living with them
in their capacity as foster carers, when the adoption agency formally allows him or
her to continue to live with them in their fresh capacity as prospective adopters.
While an application for revocation of a placement order is pending, the local
authority may not place the child for adoption without the court’s permission. Strictly
speaking, an application for leave to apply for revocation does not act as a bar to the
child’s placement. However, the Court of Appeal has said that it was good practice
for the local authority, where it knows of a pending application, to agree not to take
any steps to place the child for adoption whilst the application is pending. The local
authority should make the birth parents aware that placement plans are at an The Adoption and Children Act 2002
136
advanced stage and could seek the court’s leave to place the child under section
24(5) of the Act. See the case of Re F (Placement Order: Revocation) [2008] EWCA
Civ 439. A deliberate move designed to frustrate a parent’s application might be
amenable to judicial review.
18. A finding by the court that there has been a change of circumstances since
the placement order was made is a necessary condition for the granting of leave to
make the application for revocation, but it does not follow that a change of
circumstances will automatically mean that leave is granted. Although in making its
decision on whether to grant leave the court is not required to regard the child’s
welfare as its paramount consideration, this will be one of the factors that it will
consider, along with the prospects of the parent’s success in securing revocation of
the placement order if leave is granted. See the case of Warwickshire County
Council v M [2007] EWCA (Civ) 1084. It will be important for the local authority to be
able to supply up-to-date information about the child’s current situation, including
their views and wishes, and the progress on finding and making a suitable
placement. Where a parent has applied for leave or has made a substantive
application for revocation and the prospective adopter is unwilling to await the
outcome of the application, every effort should be made to ensure that the case is
heard as quickly as possible. In the meantime the prospective adopter will need to
be given support, and it may be appropriate for them to be offered independent legal
advice.
19. If leave is granted for the parent’s application for revocation, the child’s
welfare throughout their life will be the court’s paramount consideration in
determining that application. The child will be a party to the application and will be
entitled to be legally represented, and a children’s guardian will be appointed. If the
application is successful, any care order made before or at the same time as the
placement order will have effect, unless separately discharged, and the local
authority will therefore need to revise the care plan for the child.
Application by the local authority or the child
20. The local authority or the child, without the leave of the court, may make an
application for revocation of a placement order. Where the local authority decides
that the child should no longer be placed for adoption following a review under
AAR36,
,
the local authority must revise the child’s care plan and apply to the court for
revocation of the placement order, thus ensuring the accuracy of the child’s legal
status.
21. There is no requirement in the AAR for the adoption panel to consider this
change of plan, but it is good practice to ensure that the adoption panel is kept
informed. Chapter 8
137
Adoption applications
22. When the child has been placed by an adoption agency, the prospective
adopter is permitted to lodge their adoption application once the child has had their
home with them for at least ten weeks. In many cases the prospective adopter and
the child may need a longer ‘settling-in’ period than this before they are ready to
address the potential stress of court proceedings, but the timing of any application
should be a matter discussed by the agency and the prospective adopters.
23. When a notice of application to the court for an adoption order is received, it
will be necessary to check whether the record contains a notice (under section 20(4)
of the Act) that the parent does or does not wish to be informed of any application for
an adoption order.
24. Although the adoption itself will not usually be opposed by the birth parents,
they will nevertheless be entitled, as respondents if they have parental responsibility
and they have not given notice to the contrary under section 20 of the Act, to be
given notice of the application, and to be heard if they wish on the issue of contact. It
will reduce the applicant’s potential anxiety if the agency, perhaps through the
independent support worker, has been able to maintain contact with the birth
parent(s) and be aware of their current wishes and feelings. The parent’s support
worker should, for example, have helped them to understand that they will in due
course receive notice of the adoption application, and ensured that they are able to
obtain legal advice if necessary. If there are unresolved issues such as disputes over
contact arrangements, there is a greater risk that birth parents will take the
opportunity of the adoption application to raise issues that concern them or, possibly,
seek leave to oppose the application.
Children freed for adoption under the Adoption Act 1976
25. It is possible that some applications will be brought in respect of children who
were freed for adoption prior to 30 December 2005 under the Adoption Act 1976. In
these cases, although the adoption application is brought under the Act and the
Rules, the birth parents are not parties to the application and are not entitled to
notice of the hearing, as they are legally defined as ‘former’ parents under the 1976
Act see the case of Re F (Adoption; natural parents) [2006] EWCA Civ 1345.
Legal representation for adoptive applicants
26. Where the adoption application is opposed, it might be necessary for the
applicants to be legally represented. The cost of legal representation, as well as
payment of court fees, is one aspect of adoption support provided by a local
authority that should not be means tested (see regulation 15.4 of the Adoption
Support Services Regulations 2005 (ASR)). Even where the application is not The Adoption and Children Act 2002
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opposed, it may be necessary for the prospective adopter to be legally represented,
in order, among other things, to avoid the risk that they attend court in person at the
same time as the birth parents. Advice should be sought from the agency legal
adviser about the appropriateness of legal representation. The legal department will
also be in a position to provide some of the documentation needed for the filing of
the application.
Which court?
27. An application for an adoption order may be made to a court anywhere in the
country. It is likely to be a magistrates’ family proceedings court, or a county court,
which is also an adoption centre. There is no requirement to make the application to
the same court to which an earlier order, such as a placement order, has been
made; but there may be advantages in returning to the court which is already familiar
with the earlier proceedings, particularly if it is thought that the parents may seek
leave to oppose the application.
28. The convenience of the applicant is also a factor, since it may be necessary
for them and the child to attend court in person before the order is made. An
application to their local court may be the most convenient, but this may be unwise if
it is particularly important not to risk giving any indication to the birth parent of where
the adoptive family lives. In an interagency placement where the adoptive family
lives at a distance from the placing agency, it will be wise to seek advice about any
particular local factors that could affect the application, not only from the placing
agency’s legal adviser but also from the local authority for the area in which the
adoptive family lives. Applicants should be given advice to enable them to make an
informed decision, as the final choice is one for the applicants themselves.
The application
29. The application is made by submitting form A58 to the court together with the
accompanying documents. The applicant, or their legal representative if one is
appointed, will need information from the child’s record to complete the application
form. This will include a copy of any placement order and the child’s birth or
adoption certificate. It is important for the agency to ensure that they are provided
with the information and support needed. The agency must be ready to submit the
report required under Rule 14.11 so that the hearing of the application is not
delayed. Where the prospective adopter wish their identity to remain confidential,
Form A58 allows them to ask the court to allocate them a serial number, which will
be used instead of their name on any documents sent to the other parties.Chapter 8
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The position of the child
30. The child will not be a party to the adoption application except in certain
circumstances. The Rules provide that the child will be a party when:
permission has been granted by a court for parents or guardians to
oppose the making of an adoption order;
the child opposes the making of the adoption order;
a children and family reporter recommends that it is in the best
interests of the child to be a party to the proceedings, and the court
accepts that recommendation;
the child is already an adopted child;
any party to the proceedings is opposed to the arrangements for
allowing any person contact with the child, or a person not being
allowed contact with the child after the making of the adoption order;
the prospective adopters are relatives of the child.
31. If the child is made a party, then a children’s guardian will be appointed unless
this is not considered necessary to safeguard their interests, and they will be entitled
to legal representation. Whether or not the child is a party, they must attend court for
the final hearing unless the court specifically directs otherwise (Rule 14.6). The court
will usually dispense with the child’s attendance if there is good reason to do so. If
the child is particularly anxious about the idea of attending court, this is a matter that
should be brought to the attention of the court in advance of the final hearing.
The Directions Hearing
32. The court will need to give directions about the way the case is to be dealt
with so that there will usually be a short hearing to consider what is necessary.
However, there are variations in the way different courts deal with these procedural
issues (perhaps using telephone conferencing, for example) so it is essential to
ascertain what process is likely to be followed by the court in question, and to ensure
that the applicants are as aware as possible of what to expect.
The final hearing
33. Unless a birth parent has been given leave to oppose the application, the final
hearing should be a relatively straightforward process. The birth parent is however
entitled to receive notice of the hearing and to attend (unless they are consenting
parents and have indicated that they do not want to be kept informed).
34. When giving directions about the final hearing, the guidance issued by the
President of the Family Division on 3 October 2008 provides for the court to consider The Adoption and Children Act 2002
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the practical arrangements and to direct whether the child and/ or the prospective
adopter need not attend. The guidance requires each adoption centre and
magistrates’ court, which hears family proceedings, to have arrangements in place to
provide information to the parties about any special arrangements made for their
attendance at, and the conduct of, the final hearing. The arrangements will vary
depending on a number of factors, including the facilities available at the court,
whether the applicants are legally represented, and how far away from the court they
live. Where the court makes the adoption order in the absence of the child or
applicant, the guidance encourages the court to make arrangements for a
celebratory event to be attended by the adoptive parent and the child. This event
should take place at least 14 days after the making of the order, after the time limit
for appealing has passed.
Applications by parents for leave to oppose adoption order
35. Where consent to placement for adoption has been given under section 19 of
the Act, or a placement order has been granted, birth parents may not oppose the
making of an adoption order unless the court gives them leave to do so. Leave may
not be granted unless the court is satisfied that there has been a change of
circumstances since the consent was given or the placement order made. In dealing
with an application for leave to oppose, the court will also treat the child’s welfare
throughout their life as its paramount consideration. Unless and until leave is given,
the adoption application is treated as unopposed. Depending on the circumstances
of the case, it may not be necessary for the prospective adopter to become involved
in the application for leave to oppose, although, if a change of circumstances is
proved, then consideration of the child’s welfare may need to include evidence of
how they are thriving (or otherwise) in the care of the prospective adopter.
36. If leave is given to oppose the application, then it will be necessary for the
court to address the issue of parental consent. A statement of facts will be needed,
setting out the facts on which the prospective adopter relies to establish the grounds
for dispensing with consent. The child will (if not already) be made a party to the
application and a children’s guardian appointed, and, if they are not already legally
represented, the prospective adopter is likely to need legal representation. If there is
any question of the agency ceasing to support the adopter’s application, this will
need to be discussed and decided with the agency’s decision maker.
Contact applications
Applications under section 26 of the Act
37. Once a child is authorised to be placed for adoption (also in cases where a
child under six weeks old has been placed for adoption) the provisions in the 1989
Act regarding contact cease to apply and any order for contact made under that Act Chapter 8
141
will cease to have effect. As explained in chapter 7, contact is dealt with under
sections 26 and 27 of the Act, and a local authority no longer has an obligation to
promote contact between the child and birth family members. The court may
however make an order for contact under section 26 of the Act, and may revoke or
vary a section 26 order under section 27 of the Act. At the time of making a
placement order, the court is required by section 27(4) to consider the arrangements
made or proposed by the agency for contact and invite the views of the parties. The
court may also make an order under section 26 on its own initiative, i.e. even if no
application has been made.
38. If no section 26 order has been made at the time of the making of a
placement order, it is open to any of those entitled to apply to the court for a section
26 order (broadly the child or agency, the parents or guardians and relatives, but see
section 26 for the full list). Anyone not falling within the categories in section 26(3)
may also apply with the court’s leave.
39. An application for a section 26 order is governed by the Rules and is made by
submitting form A53 to the court. The application may be made to any court, but if
made to a county court it must be to one which is an adoption centre. If a placement
order has been made, it will probably be convenient for the section 26 application to
be made to the court which made the placement order. The adoption agency, any
parent with parental responsibility for the child, and the person with whom the child
lives or is to live will always be respondents to the application. The child (if not the
applicant) will be a respondent, if:
they, or the agency or any parent with parental responsibility opposes the
making of the order; or
an existing provision for contact is to be revoked; or
relatives of the child do not agree to the arrangements for allowing or not
allowing a person contact; or
the child is suffering or at risk of suffering harm within the meaning of the
1989 Act.
If the child is a party, the court will appoint a children’s guardian unless it is satisfied
that this is unnecessary to safeguard the interests of the child.
40. In a case where the child is placed or about to be placed with a prospective
adopters whose identity is not to be disclosed to other parties, the agency will need
to ask the court to make arrangements to preserve their anonymity. If the agency
and the prospective adopter hold the same views in respect of contact, it should not The Adoption and Children Act 2002
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be necessary for the prospective adopter to be separately represented, although, as
a party, they are entitled to be represented.
41. If there is already a section 26 order in force, section 27 allows for an
application to be made by the agency, the child or a person named in the order to
vary or revoke the order. Such an application is made on form A54. If a prospective
adopter makes the application and wishes their identity to remain confidential, the
form makes provision for them to apply for a serial number, which will be used
instead of their name on any documents sent to the other parties.
Contact after adoption
42. On the making of an adoption order any section 26 contact order will cease to
have effect. Section 26(5) of the Act however permits an application to be made for a
contact order under section 8 of the 1989 Act when it is to be heard at the same time
as an application for an adoption order. Section 46(6) of the Act requires the court
making an adoption order to consider whether there should be arrangements for
allowing any person contact with the child. The making of an arrangement for contact
does not imply that there should be an order; the court may simply indicate its
approval of agreed arrangements, or it may make a section 8 order if it considers
that this is necessary to promote the child’s welfare. It is important to make sure that
arrangements are settled; loose ends should not be left to be resolved after the
adoption order has been made, see the case of Re X and Y v Warwickshire County
Council and B [2009] EWHC 47 (Fam).
43. If no section 8 contact order is made at the time of the adoption order, a birth
parent or relative who wishes to apply for contact will need first to obtain the leave of
the court (see chapter 7). The application for leave, and the application itself if leave
is granted, will be governed by the provisions of the 1989 Act.
Non-agency adoptions
44. The majority of this guidance deals with duties of adoption agencies, but local
authorities additionally have duties in respect of adoption applications where the
child has not been placed with the prospective adopter by an adoption agency.
Although section 92 of the Act prohibits ‘private’ adoptions, a child may be the
subject of an application to adopt even though they were not placed for adoption by
an adoption agency. These are called non-agency adoptions. When this occurs,
the local authority has a responsibility to provide a report to the court to assist it in
reaching a decision on the application. These reports must be completed quickly to
avoid delaying the court hearing the adoption application. The local authority with
responsibility for investigating and preparing the report to the court may arrange for
another local authority or VAA to carry out the investigation and prepare the report to
the court, but the local authority remains responsible for the quality of the work and Chapter 8
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that the report is filed with the court without delay. See chapter 1 for guidance on
who can prepare the report to the court.
45. The principal categories of non-agency adoptions are:
applications by the partner of the parent of a child, ie the parent’s
spouse, civil partner or unmarried partner (partner adoptions, but
sometimes inaccurately, referred to as step-parent adoptions);
applications by local authority foster carers where the child has not
been placed with them for adoption under the AAR;
applications by relatives of the child or by private foster carers.
Under the adoption support provisions of the Act and regulations, it may be
necessary to consider the need for adoption support, and at least to provide
counselling, information and advice.
Notice of intention to apply
46. Sections 42-44 of the Act contain provisions concerning the conditions that
will need to be met before a single person or a couple may apply to adopt a child. As
for all adoptions, the applicant will need to satisfy requirements as to domicile or
habitual residence and age. In addition, section 44 provides that non-agency
applicants must give formal notice to the local authority where they have their home
of their intention to apply for an adoption order. The notice must be given at least
three months and not more than two years before the application is made to the
court. On receipt of the notice, the local authority is required to ‘investigate’ the
matter with a view to preparing a report to the court. Local authorities need to have
procedures in place for responding to notices of intention, and allocating a suitably
qualified social worker to deal with the case. The social worker who prepares the
report to court must meet the conditions of the ARR (see chapter 1).
47. Where prospective adopters are resident abroad, but still entitled to apply for
an adoption order, regulation 3 of the Local Authority (Adoption) (Miscellaneous
Provisions) Regulations 2005 sets out how the appropriate local authority is to be
identified. In principle this is the local authority where they last had their home, but
where each partner of a couple lived in different local authority areas in England, and
they have never had a home together in England, they may choose which of the two
relevant authorities they wish to give notice. These cases will require careful
planning, since the requirement under section 42(7) of the Act for the court to be
satisfied that the writer of the report has had sufficient opportunity to see the
applicants and the child together in their home will still apply. It may be possible to
arrange to visit the proposed adopters and the child during periods when they are in The Adoption and Children Act 2002
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England on holiday, for example, but reports will need also to cover their home
situation in the place where they currently reside. In the case of Re A (A child) [2009]
EWCA Civ 41 the court said that “home” does not have to be a home in the UK.
48. The local authority has an opportunity to discuss with the proposed adopters
their hopes and expectations of adoption and to offer them advice and information.
This should include ensuring that they fully understand the implications of adoption
and are aware of possible alternative courses of action. For step-parents, for
example, a parental responsibility agreement may be more appropriate, and for
foster carers or relatives, special guardianship may be suitable. It will be important to
ensure that the child, if of sufficient age and understanding, is aware of what is
proposed and is given an opportunity to express a view.
Minimum period for child to have home with the applicant
49. Section 42(3)-(5) of the Act sets out the minimum period for which the child
must have had their home with the prospective adopter before they may apply to the
court, with the possibility of an earlier application in some cases if the court gives
leave. The notice of intention may be given up to three months before that minimum
period has expired, although in this case the protection offered against removal of
the child under sections 36-40 of the Act may not apply. Where leave would be
required to make the application because the minimum residence period would not
be completed, notice cannot be given to the local authority until leave has been
granted.
50. The relevant residence periods required under section 42 are as follows:
for applications by the child’s own parent – 10 weeks;
for applications by the partner of the child’s parent – 6 months;
for applications by a local authority foster parent – one year;
in any other case – three years (whether continuous or not) during the
period of five years immediately preceding the application.
The possibility of an application for leave to apply after a shorter period does not
apply in the case of partner adoptions.
Protection from removal of the child
51. Sections 36-40 of the Act (removal of children in non-agency cases) contain
detailed provisions restricting the right of a birth parent and others to remove a child
from the care of people who have applied, or in some cases have given notice of
intention to apply, for an adoption order. These do not prevent the removal of the
child under child protection provisions. Chapter 8
145
52. The situation most likely to affect local authorities under these provisions is an
application by a local authority foster carer, perhaps where they have sought and
been refused approval under the AAR as a prospective adopter for the child, or
where the foster carer is unhappy with the plan to move a child to another
placement. If the child has been living with the foster carer for at least one year
when they give notice of their intention to apply for an adoption order, the local
authority may not remove the child from their care without the leave of the court.
Where such a situation arises, it is essential that the local authority seek the advice
of its legal department without delay. If there is a case to justify an application for
leave to remove the child, action should be taken speedily. The application will be
made under Part 18 of the Rules. It should be remembered that notice of intention to
adopt is given to the local authority for the area in which the applicant lives, which
may not always be the local authority that has placed the child with the foster carer.
Where a local authority receives notice in these circumstances, (and it is aware that
the child is looked after) it is required by section 44(7) of the Act to inform in writing
the local authority looking after the child within seven days.
Applications by local authority foster carers
53. It should not normally arise that a local authority foster carer gives formal
notice of intention to apply to adopt without this issue having previously been
discussed with the local authority. If the issue is raised, the local authority must give
it serious consideration and, in its role as an adoption agency, ensure that the foster
carer is offered information and counselling under AAR 21. If adoption is already the
plan for the child, and the local authority considers that the foster carer may be
suitable to be approved as an adoptive parent, the rest of the procedure under Parts
3 and 4 of the AAR (assessment and approval of prospective adopter and matching
of child with prospective adopter) will need to be followed. It is not usually
appropriate to leave it to the foster carer to make a ‘non-agency’ adoption
application. There will be cases where the local authority is clear that it considers it
inappropriate to pursue the foster carer’s interest in adopting the child. In such a
case, it must respond promptly to the foster carer explaining the reasons for its
views, and ensure that the carer has access to their own independent legal advice.
See, for example, the case of Re A, TL v Coventry City Council [2007] EWCA Civ
1383. A failure to take the foster carer’s representations seriously may lead to a risk
of delay to a placement with other prospective adopters when they are identified.
54. If a foster carer gives notice of intention to apply to adopt a child whom the
local authority is not authorised to place for adoption, it will be necessary
immediately to consider the plan for the child and to ascertain the child’s and birth
parent’s wishes and feelings. If the local authority considers that adoption may be
appropriate, it will need to follow the procedure set out in Part 2 of the AAR.The Adoption and Children Act 2002
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55. Because of the time needed to complete the procedures under the AAR, it
may be that the three months period of notice of intention will expire before the
agency has reached its own determination, and the foster carer may have issued
their adoption application before the local authority has been able to issue a
placement order application. The local authority will need to consider all the
circumstances, including the age of the child, and the degree of parental opposition
(if any) to the adoption, in deciding the most appropriate course of action. Even if the
local authority issues a placement order application before the foster carer’s
adoption application has been heard, it would be open to the court to adjourn the
placement order application and proceed to hear the foster carer’s adoption
application. In this case the foster carer’s application would still technically be a nonagency one. It should be borne in mind, however, that for the purposes of adoption
support, the child in these circumstances falls within the definition of an ‘agency
adoptive child’ unless the local authority opposes the application, see ASR 2.1.
Alternatively, the court may adjourn the foster carer’s adoption application and hear
the placement order application first so that, if the placement order is granted, the
foster carer’s adoption application can proceed as an agency application.
Partner applications
56. Section 4A of the 1989 Act defines ‘step-parent’ as the spouse or civil partner
of the child’s parent. However, an adoption application may be made by the partner
of the child’s parent, whether or not they are married or in a civil partnership. It may
cause confusion to refer to these types of application as ‘step-parent’ applications
(see section 51(2) of the Act). A person is the partner of the child’s parent if they and
the child’s parent are a couple but the partner is not the child’s parent. Couple is
defined in section 144(4) of the Act as:
a married couple;
two people in a civil partnership; or
two people whether of different sexes or the same sex, are living as partners
in `an enduring family relationship` (except where they are closely related, i.e.
parents, grandparents, siblings, or uncle/aunt and nephew/niece).
See chapter 5, paragraphs 45-46 of the practice guidance Preparing and assessing
prospective adopters and section 144(5) of the Act.
57. Because the Adoption Act 1976 did not permit adoption by unmarried couples
(same sex and opposite sex), there will be some instances where an adoption order
was made, probably following an agency placement, in favour of one partner in such
a relationship, even though the placement was made with the couple and they were
both assessed. Even some years after implementation of the Act on 30 December Chapter 8
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2005, there may be cases where the couple are only now taking steps to make the
application that will accord both partners equal legal status. The agency that made
the placement should offer advice and assistance to enable the application to
proceed. One area of difficulty may be explaining the position to the child, who will
probably already regard both partners as their parents.
58. An adoption application may be made by the partner of the child’s parent
alone without the child’s own birth parent of whom they are the partner losing their
parental status or parental responsibility, although the non-resident parent will lose
that status and parental responsibility if they enjoyed it previously. See section 46(2)
and 46(3)(b) of the Act.
59. It is important for the appointed social worker to ascertain from the proposed
adopter what their hopes and expectations are, and ensure that they have a full
understanding of the implications of adoption, and are aware of the court’s duty
under section 1(6) of the Act, if an application is made, to consider all the options
available to it. Sometimes they will not have appreciated fully that any decision will
not only depend on the child’s welfare, but will consider the child’s wishes and
feelings. In those cases where the proposed adopter has lived as a partner of the
parent for a long time, it may be the case that the child believes this partner to be
their parent, and the couple have not realised that the proposed adoption will need to
be explained to the child. The involvement of the social worker as the result of the
notice of intention to adopt provides an opportunity for the parent and partner to be
given support and assistance in telling the child about their origins. In cases where
the partner and parent obstruct attempts to discuss the true position with the child, it
may be necessary, once their application is made, to seek directions from the court.
60. In some cases, it may appear that the primary motivation is for the child to
have the same surname as the mother’s partner and their half-siblings. Couples
need to be given information about other means by which such an end may be
achieved (if desirable and consistent with the child’s welfare). Where the child’s birth
father does not have parental responsibility, although his consent to the change of
surname is not strictly required by law, it is considered good practice to seek his
consent so that the matter can be brought to court if there is a disagreement. See
the case of Dawson v Wearmouth [1999] 2WLR 960, [1999] 1 FLR 1167.
61. Proposed adopters may also need information about the alternatives to
adoption by which the birth parent’s partner may obtain parental responsibility
(whether or not coupled with a change of surname).
62. Where the couple are married or civil partners, the birth parent’s partner may
acquire parental responsibility under section 4A of the 1989 Act, by agreement or
court order. If the child’s non-resident birth parent does not have parental
responsibility, then a simple formal agreement between the birth parent and theirThe Adoption and Children Act 2002
148
spouse or civil partner will suffice. Where the non-resident birth parent does have
parental responsibility, then their agreement will also be needed. In such a case,
both birth parents and the step-parent will all share parental responsibility. The form
of agreement is set out in the Parental Responsibility Agreements Regulations 1991
(as amended by SI 2005/2808), and the agreement once signed must be filed in the
Principal Registry of the Family Division.
63. If the non-resident birth parent does not agree, an application may be made to
a court for a parental responsibility order. The parental responsibility granted to the
step-parent, whether by agreement or by court order, can only be brought to an end
by a court order. It is also open for the birth parent and their partner to apply for a
joint residence order under section 8 of the 1989 Act, which will have the effect of
giving the partner parental responsibility during the currency of the order.
64. Where the child’s birth parent and partner are not married or civil partners,
section 4A does not apply, but they may still apply for a joint residence order. The
child’s non-resident birth parent will be a party to any application if they have
parental responsibility, or if there is any order in force affecting them, for example a
contact order.
65. Special guardianship is not an appropriate alternative to adoption in ‘partner’
cases, since a special guardianship order made in favour of a birth parent’s partner
would prevent that birth parent from exercising their own parental responsibility.
66. In some cases, the motivation for the proposed action may arise from anxiety
about the child’s position if the birth parent were to die. It may be that sufficient
reassurance can be provided by the appointment of a guardian under section 5 of
the 1989 Act and couples should be given information about this possibility, and
encouraged to take legal advice.
Investigation
67. In these cases, the likelihood is that, even if the adoption application is not
granted, the child will continue to live in the household. The process of ascertaining
the information necessary for the completion of the court report is not as rigorous as
the assessment needed under the AAR for prospective agency adopters, but the
investigation will nevertheless need to cover, as far as possible, all the topics listed
in Rule 14.11 and in accordance with Practice Direction 14C in the Rules.
68. The social worker should explain to the proposed adopter and partner what
will be involved and ask them to supply as much of the information and
documentation as possible (for example evidence of current or former marriages or
civil partnerships). It is good practice to interview the birth parent and proposed
adopter separately, in case there are any safeguarding issues, or undue pressure Chapter 8
149
has been applied. Although in partner adoptions, a formal health report is not
required to be filed at court, it should be ascertained whether there are significant
health issues that could affect the application.
69. The proposed adopter is not required to name referees, but it should be
explained to them that it will be necessary to undertake CRB checks in respect of the
proposed adopter and adult members of the household, including the child’s own
birth parent who is the proposed adopter’s partner. The existence of a criminal
conviction or caution for a ‘specified offence’ is not an absolute bar to the grant of an
adoption order, but is a matter that will need to be included in the Practice Direction
14C report.
70. Where the non-resident birth parent holds parental responsibility, their
consent will be required to the making of an adoption order, unless the court
dispenses with consent on one of the statutory grounds. Even where such consent is
not required, the writer of the report will need to make every reasonable attempt to
ascertain their views and wishes concerning the proposed adoption, and to gather
information about them for inclusion in the report. If an adoption order is made, the
non-resident birth parent will be relieved of any obligation to maintain the child, but
they will also be deprived of their legal relationship with the child, including the right
to make an application for a section 8 order (including a contact order) without the
leave of the court.
71. The views and wishes of members of the wider family are also likely to be
relevant, and the social worker will need to consider whom it will be necessary to
approach. This may be a matter of special significance if the child’s non-resident
birth parent is dead. Even where an absent parent does not have current contact
with the child, their parents may have a continuing and beneficial grandparental
relationship. Where there is contact between the child and the grandparents, it will
be necessary for all the family members to consider how the making of an adoption
order might affect their relationship. Where a birth parent and/or members of the
wider family live outside the UK, the social worker will need to consider the most
appropriate way of obtaining information and ascertaining their views. In cases
where there might be a risk of harm to the child or their birth parent in disclosing their
whereabouts to wider family members, some discretion should be exercised, and in
exceptional cases, it may be necessary to ask the court for directions.
Applications by same-sex couples following in vitro fertilisation or
surrogacy
72. The Human Fertilisation and Embryology Act 1990 (as amended by The
Human Fertilisation and Embryology Act 2008) has made it possible under certain
conditions for the female partner of a woman who gives birth following donor
insemination to be treated as the child’s parent and to share parental responsibility The Adoption and Children Act 2002
150
with the carrying mother. Where the treatment was given before the amendments
came into force on 6 April 2009 the couple may wish to achieve parental status for
the other partner by an application for an adoption order. A male couple may be able
to apply for a parental order under the Human Fertilisation and Embryology Act 1990
following a surrogacy arrangement provided they meet certain criteria. Where they
do not meet the criteria for such an application, they also may consider adoption. In
either case, where the couple is in a civil partnership, a parental responsibility
agreement may be a suitable alternative; if they are not, then a residence order
would enable both partners to share parental responsibility.
Applications by relatives
73. As with partner applications, it will be necessary for the local authority, on
receipt of a notice of intention, to offer advice and information and to ascertain the
reasons why the proposed adopters wish to adopt. In these cases, unless they have
obtained the court’s leave to apply earlier, the child will have been living with the
proposed adopters for three years. These applications may arise in a variety of
circumstances, including:
a fear of interference by the birth parent(s) in the arrangements;
a realisation that the current carers need to have parental responsibility
for the child;
the child’s or carers’ wish to cement their relationship by a legal tie;
an application by childless relatives to whom a child has been ‘gifted’
by a family member in accordance with the family’s culture;
where the child is looked after by the local authority and the relatives
are local authority foster carers for the child, a wish to end the legal
involvement of the local authority and/or to create a stronger legal
relationship between the carers and the child.
74. In some cases there may already be a residence or special guardianship
order in place, in which case it will be necessary to discover why the proposed
adopter believes that this is not sufficient, and whether, for example, the substitution
of a special guardianship order for a residence order would meet the needs of the
proposed adopter and child. If there is no order currently in force, consideration of
alternatives such as residence or special guardianship orders will be necessary, and
the local authority should ensure that the proposed adopter is provided with
information about these options.Chapter 8
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75. Adoption by close relatives of the child has the disadvantage of imposing a
distorted set of relationships. Adoption by a grandparent, for example, means that
the grandparents’ other children, including the child’s own parent, become, legally,
the child’s siblings. Nevertheless, the possibility of adoption by a relative should not
be automatically ruled out. There may be some circumstances where the security
provided by the irrevocability of an adoption order, and its lifelong effect, would be
best for the child. There is no statutory presumption that a special guardianship order
will be preferable to an adoption order in favour of a relative. It will be necessary to
consider the particular facts of each individual case. See for example Re S (Adoption
order or special guardianship order) [2007 EWCA Civ 54, Re AJ (adoption order or
special guardianship order) [2007] EWCA Civ 55 and Re M-J (Adoption order or
special guardianship order) [2007] EWCA Civ 56.
76. As with partner adoptions, the adoption by a paternal or maternal relative will
terminate the child’s legal relationship with members of the other side of the family,
and this factor will need to be carefully considered.
77. If a special guardianship order is already in place, a detailed report will have
been provided to the court when that order was made. If a different local authority
from the one to whom notice of intention to apply to adopt is given submitted the
report, it will be necessary for the local authority to ask the court that made the
special guardianship order to supply a copy of the report filed in those proceedings
.
An application for leave to disclose could be made under Part 21of the Rules.
78. In these cases, the proposed adopters will be required under Rule 14.12 to
submit a medical report on themselves and the child with their application to the
court, and they will need to name at least two referees, who should be interviewed
by the local authority before the court report is completed.
Applications by private foster carers
79. Non-relatives who have been caring for a child under private fostering
arrangements for at least three years may make an adoption application if they have
given the required notice to the local authority. In these circumstances, provided the
Children (Private Arrangements for Fostering) Regulations 2005 have been complied
with, the child and the local authority, who will have been visiting regularly, will
already know family. If there has been a failure to comply with the private fostering
regulations it will be necessary to refer the matter to the private fostering team for
them to consider what action should be taken. Failure to notify (with or without
subsequently being convicted of an offence under section 70 of the 1989 Act) is
something that should be taken into account when considering the suitability of those
persons to adopt. In addition, full medical reports and interviews with at least two
referees will be required. The Adoption and Children Act 2002
152
Reports to court
Placement Order Applications
80. A placement order application is made by a local authority in the
circumstances set out in section 22 of the Act, and Rules 14.6(3)(a) and 14.11 apply
to a report to court from the local authority. Under Rule 14.6(3)(a) the court has a
discretion whether to direct the filing of a report, but in practice a report will usually
be required. To avoid delay, it should be filed with the placement order application.
81. Rule 14.11 provides that the report will be sent to any children’s guardian
involved in the case, and/or to any reporting officer or children and family reporter.
The report is confidential and will not automatically be sent to the parent of the child
or other parties to the proceedings, but it is likely that the court will agree to the
disclosure to the parent of at least any part of the report that refers to them. The
Practice Direction reports by the adoption agency or local authority, which
supplements Rule 14.11, sets out the requirements for the contents of this report in
Practice Direction 14C.
Preparation of the Report
82. Although a report to the court in respect of a placement order application is
not one of those listed in ARR 4 it will most often be appropriate for it to be written by
the social worker who has prepared the child’s permanence report (CPR) , which is
subject to the restriction under the ARR. There is also considerable similarity
between the information required in both reports. To reduce delay, local authorities
should consider how to enable information contained in the local authority’s
electronic recording system to be transferred into a format acceptable to the court
and complying with the requirements of Rule 14.11 and the Practice Direction.
Confidentiality
83. It is essential that the writer of the report is alert to the need for any particular
pieces of information contained in it to remain confidential. Usually the prospective
adopter will not yet have been identified at the time of a placement order application,
but where they have been and their identity is not to be disclosed to members of the
birth family, it is vital that no information which might disclose their identity or
whereabouts is contained in the report. If, however, it is relevant and needs to be
included, it should be given on a separate sheet with a notice emphasising the
importance of not disclosing it to the birth family. In any case, where the identity of
the child’s current carers or the whereabouts of the child needs to be protected, this
must also be made clear.Chapter 8
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Contents of the report
84. There are three sections to the Practice Direction. Section A requires
information about the author(s) of the report; in addition to a description of the
writer’s role in relation to the case, it is likely to assist the court if it is made clear how
well and for how long they have known the child and birth family. The second part of
Section A requires information about whether in the view of the local authority any
other person should be made a party. This might be a father without parental
responsibility or a relative of the child whose request to care for the child has been
rejected by the local authority. This part also requires information about any
respondent who is under 18, or who is incapable because of mental disorder of
managing their affairs. If this is the case, medical evidence will be required.
85. Part 1 of Section B of the report will contain information that was included in
the CPR. Provided that the application for the placement order is made immediately
after the agency decision, there should be little updating required. The summary by
the medical adviser of the child’s health history, current health and anticipated health
care needs required under paragraph (j) of Part 1.i will contain the same information
as was provided to the panel under AAR 17.1.b. This is, of course, unless there has
been any change since this was prepared, or the medical adviser considers an
updated examination is required.
86. The information required by Part 2 of Section B will also for the most part be
available in the CPR. In relation to the child, the information for paragraph (a) will be
in the chronology prepared for the CPR (paragraph 9 of Schedule 1 Part 1 of the
AAR); the information for paragraphs (b) and (c) as to the child’s views will have
been gathered in accordance with AAR 17.1.c for the CPR. There may be an
addendum if the child has expressed further wishes following the agency decision
that they should be placed for adoption. Paragraph (d) requires information as to the
child’s wishes and feelings as recorded in any other proceedings; this is not explicitly
required for the CPR. In most cases the ‘other proceedings’ concerned are likely to
be current parallel care proceedings, and the child’s wishes and feelings with regard
to those proceedings are likely to be found in the report of the children’s guardian for
the proceedings.
87. Again, most of the information regarding the child’s parents and relatives
required for Part 2 of Section B will be contained in the CPR, notably in paragraphs
11 and 14 of Part 1 and paragraphs 11 and 27 of Part 2 of Schedule 1 of the AAR,
and AAR 17.1.d, e and g. AAR 17.1.d requires information concerning current as
well as previous court proceedings in respect of the child’s siblings, and this
information may not have been recorded in the CPR, and the information required by
AAR 17.1.d is not limited to siblings who are still under the age of 18. If it is possible
to ascertain these details in respect of siblings who are now adult, these should be
included.The Adoption and Children Act 2002
154
88. Part 3 of Section B requires for the most part factual information concerning
the agency’s actions to date, but importantly must also set out the agency’s reasons
for considering that adoption would be in the child’s best interests. The reasons
given by the agency’s decision maker for making the decision under AAR 19 should
be included here. See chapter 1 for guidance on the way the decision maker should
make and record their decision.
89. Section 3 contains the agency’s recommendations, and will need to set out
clearly the alternatives to adoption that have been considered and why the agency
believes that the child’s long-term interests will be best met by a placement order.
The agency’s opinion as to future contact, including the need for any order under
section 26 of the Act must also be set out. This is a matter that will have been
considered by the agency and the panel under Part 3 of the AAR, and on which the
panel may have given advice under AAR 18.3. The agency will need to have
considered whether it believes that the arrangements for contact that it proposes can
be implemented without the need for an order, and, if so, explain why. Since
generally the prospective adopter will not yet have been matched with the child, it
may be difficult to be precise about the contact arrangements that will be appropriate
once the child has been placed. But the report needs to make it clear what sort of
future contact, and with whom, the agency believes is important for the child’s
welfare, and how crucial a factor this will be in identifying a suitable prospective
adopter for the child.
Signing and submitting the report
90. The report must identify its principal authors and their role in relation to the
case (see Part 1) and its contents should be signed off by the agency. It is also
essential that its contents be seen by the local authority legal adviser with
responsibility for lodging the application and filing evidence with the court. The legal
adviser should submit the original report plus an extra copy with the court for service
upon a Cafcass Officer. In the exceptional case where it is not possible to file the
report at the same time as the placement order application, the agency will need to
be ready to tell the court, by the time of the first Directions hearing, (which is held
within four weeks of the issue of the application) how soon it will be ready.
Agency adoption applications
91. It is a matter for the prospective adopter when they issue their adoption
application (provided the child has had a home with them for at least ten weeks) but
in practice it will be important for the placing agency to liaise closely with them about
this. Section 43 of the Act and Rules 14.6 and 14.11, and Annex A of the relevant
Practice Direction provide for the submission of reports in agency adoption
applications. Rule 14.6 provides that the court clerk will request a report from the Chapter 8
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adoption agency once the adoption application has been issued, and Rule 14.11
requires the agency to submit the report within the timetable specified by the court.
The contents of the report are set out in Annex A of the Practice Direction. The court
may ask for further information or assistance from the agency. Section 42 of the Act
provides that the court cannot make an adoption order unless it is satisfied that the
agency has had sufficient opportunities to see the child with the applicant together in
their home. The visits that the agency must make under AAR 36, and the reports
made of those visits, will therefore be important in enabling the report to be
completed.
Preparation of the report
92. The social worker who writes the report must either have the qualifications
and experience as required by the ARR or be supervised by a person with the
qualifications and experience as required by the ARR, see chapter 1. The report will
contain information about the child, birth family and prospective adopters. In an
interagency case, it is the placing agency which has the statutory responsibility for
submission of the report, and that agency will need to ask the agency that approved
the prospective adopter to contribute. Much of the information needed will be
available in the CPR and the prospective adopter’s report, but this will of course
need to be updated to reflect developments since the child was matched with the
prospective adopter.
Confidentiality
93. Although the report is confidential, parts of it are likely to be shared with the
parties to the proceedings. In a case where the prospective adopter’s identity is not
to be disclosed to the birth parents, care must be taken to ensure that any identifying
information is contained in a separate section which is not to be disclosed except to
the court and any children’s guardian or family court reporter. Identifying information
may include addresses, employment and, for example, the name of the school
attended by the child.
Signing and submitting the report
94. The report must identify its principal authors and their role in relation to the
case (see Section A, Part 1) and its contents should be signed off by the agency.
Although the prospective adopter is not entitled to a copy of the report, unless the
court so orders, it is good practice to discuss those aspects which relate to them.
This will include the recommendations the agency is making and issues such as
contact. The local authority’s legal adviser should submit the original report plus an
extra copy with the court for service upon a Cafcass Officer.The Adoption and Children Act 2002
156
Contents of the report
95. The requirements for the contents of the report set out in Annex A of the
Practice Direction are for the most part self-explanatory. The writer of the report must
ensure that they check that the matters set out in the Annex are all addressed, or, if
information is not available or does not apply in the particular case, the reason for
this is made clear. Annex A has five sections (plus a sixth for certain intercountry
adoption cases). Each section should be started on a new page so that different
sections may where appropriate be shared with some or all of the parties.
Section A – The report and Matters for the Proceedings
96. Section A sets out clearly the information required. Where more than one
person has contributed to the report, this section will explain the role of each
contributor and for which parts of the report they have been responsible. The
provision of information about the qualifications and experience of the author(s)
should not only show that they are permitted under the ARR to prepare the report but
make clear to the court the extent of their experience and qualifications. Part 2 of this
section requires the writer to address the issue of whether it is recommended that
any other person be made a party to the proceedings, for example a father without
parental responsibility and whether any respondent is under 18 or suffering from a
mental disorder within the meaning of the Mental Health Act 1983. If this is the case,
medical evidence will be required.
Section B - Information about the child and birth family
Part 1
97. The information required in Part 1 of Section B is similar to that included in the
CPR, and the reviews of the child’s case, and reports of visits to the child in
placement should have enabled the agency to keep the information up to date
through the ICS record.
Health
98. B.1.(i)(m) requires a summary written by the agency’s medical adviser of the
child’s health history, current state of health and any anticipated need for health
care, with the date of the most recent medical examination. The agency will need to
ensure that the medical adviser is advised in good time of the date by which the
report is needed and supplied with all the information available. This will enable them
to decide whether a further medical examination is required.
99. B.1.(ii)(j) requires health information, when available, about the child’s
parents. Although this section of the report does not have to be written by the Chapter 8
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medical adviser, the agency should ensure that they have the most recent
information available about the parents in order to advise, in particular, on any health
factors with genetic implications for the child.
Part 2
100. Part 2 gathers together information about:
the child’s previous placement history (if they have been looked after);
the child’s wishes and feelings;
the parent’s or guardian’s wishes and feelings;
relationships between the child and birth family members and other people
important to them;
the wishes and feelings of wider family members and others;
current contact between the child and the birth parent;
details of arrangements concerning siblings, including half- and stepsiblings;
whether the prospective adopter has met the child’s birth parent or other
family members and, if so, the effect of the meeting.
101. It is important to note that information given about wishes and feelings should
indicate clearly when these were last ascertained, and, in relation to the parents,
also indicate their wishes and feelings as recorded at earlier stages in the process
leading up to the adoption application. This part of the report is not solely factual,
since it must include the agency’s opinion on the nature of the child’s relationships
and whether they are likely to continue, and, if so, to benefit the child. It must
include also an assessment of the ability and willingness of family members or
friends to provide a secure environment for the child and meet their needs.
102. The details required concerning siblings (whose names and ages will have
been entered in Part 1) include their current living arrangements and details of any
current or previous court proceedings to which they are or have been subject. An
indication must also be given of whether any of them is the subject of a parallel
application (that is an application by the same prospective adopter).
Part 3
103. Part 3 consists of a summary of the agency’s actions in respect of the child
and birth family, as set out in paragraphs (a)-(g). Paragraph (h) sets out the reasons
for the agency’s decision that adoption would be in the child’s best interests. This will
require information regarding the agency decision-maker’s decision under AAR 19
and the reasons for it, together with the date, and should explain the reason for any
delay in implementing the decision. Note that this is historical information. Section E
will set out the agency’s current view.The Adoption and Children Act 2002
158
Section C – The prospective adopter(s)
Part 1
104. The information for Part 1 will be in the prospective adopter’s report. It will
however need to be updated to reflect current circumstances, future plans, and an
assessment of the prospective adopter’s suitability to bring up this particular child
throughout childhood. It must confirm that the prospective adopter continues to be
approved under AAR 27. Where the prospective adopters are a couple, paragraph
(h) requires a current assessment of the stability and permanence of their
relationship.
Health information
105. Again, the medical adviser is required to write a summary of the prospective
adopter’s health history, current state of health and any anticipated need for health
care, with the date of the most recent medical examination. The medical adviser will
need to consider whether any developments in respect of the prospective adopter’s
health since approval and placement justify further investigation.
Part 2
106. Part 2 will set out the views, wishes and feelings of the prospective adopter
and members of their household and wider family concerning the adoption. It must
include information as to whether the prospective adopter is willing to follow any
wishes of the child or birth parent in respect of the child’s religious or cultural
upbringing, and the prospective adopter’s wishes and feelings concerning contact.
Paragraph (c) explores the prospective adopter’s reasons for wishing to adopt the
child, their understanding of adoption, and whether they have discussed adoption
with the child.
Part 3
107. This part will set out the history of the agency’s involvement with the
prospective adopter, including the dates and reasons recorded for their approval
under AAR 27. The agency’s proposals for contact must be described, together with
options for facilitating such contact, whether direct or indirect, and the agency’s
opinion on the likely effect of the proposed contact on the prospective adopter and
the security of the placement.Chapter 8
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Section D – The placement
108. This section explains the circumstances and date of the child’s placement,
which could usefully include information contained in the placement report prepared
under AAR 31. This will include a summary of arrangements for adoption support,
with the support plan and timescales for continuing support after the making of the
adoption order. If no support is being provided, the agency must explain the reasons
why. It must also provide a summary of information obtained from visits and reviews
during the placement, and make it clear whether the child has been seen separately
and whether the agency considers there has been sufficient opportunity to see the
family group and the child’s interaction in the home environment. The agency must
give its own assessment of the child’s integration into the adoptive family and the
likelihood of their full integration into the family and wider community. In cases where
the prospective adopter’s ethnic, religious or cultural background does not reflect
those of the child, it will be particularly pertinent to provide information about the
ways in which the prospective adopter is making use of resources within the wider
family and/or community to assist in meeting the child’s identity needs.
Section E – recommendations
109. This section needs to set out clearly the agency’s own views on the merits of
the application for adoption, including consideration of alternative orders. It should be
apparent to the court from this section whether the agency itself considers that
adoption is more likely than any other order to meet the child’s long-term needs and
why. The decision is of course a matter for the court, but it will be assisted by a clear
and reasoned recommendation. The agency must also provide its own
recommendation as to whether or not there should be arrangements for future
contact, again with reasons.
110. Under paragraph (b) if the report recommends that the adoption order should
not be made, it must include alternative proposals. These may be for a different
order in favour of the applicants, for example a residence or special guardianship
order. In these circumstances, if a placement order is currently in force, the court
would need to consider revoking the placement order under section 24(4) of the Act.
This is because the making of a residence or special guardianship order would not
automatically revoke the placement order but it would discharge any care order that
might be revived by the revocation of the placement order. See section 29(1) of the Act and
section 91(1) and (5A) of the 1989 Act. In a case where the agency considers that the
child should not remain the care of the prospective adopter at all, it will need to be
clear what alternative arrangements it is proposing, and how these can be achieved.
If there is a placement order in force when the adoption application is refused, and
no other order is made, the agency may give notice to the prospective adopter under
section 35 of the Act requiring them to return the child, and the court should be
informed if this is the agency’s intention.The Adoption and Children Act 2002
160
111. In a case where a birth parent has been given leave to oppose the adoption
order, the recommendation will need to address the issue of whether the child should
be returned to the care of the birth parent. The recommendation will need to take
account not only of the birth parent’s ability to meet the child’s needs, but also of the
child’s legal status, in particular whether there is a placement order in force. If there
is a placement order, and the plan is to return the child to the birth parent’s care, the
court will need to consider revocation of the placement order. The local authority will
need to be clear whether it wishes to oppose the discharge of any care order or to
propose a care plan whereby the child returns to the birth parent’s care on a trial
basis, under the protection of the care order. In a case where there is no placement
order or care order, the birth parent would be entitled to resume the care of the child
immediately, and the agency report could include a recommendation as to suitable
arrangements to ease the child’s transition.
Non-agency adoption applications
Preparation of the report
112. As for agency adoptions, this report is one that must only be prepared by a
person who meets the requirements of the ARR. Where Annex A uses the term ‘the
adoption agency’ this refers to the local authority in non-agency cases, although
there are some pieces of information requested that will not be applicable in nonagency cases.
Confidentiality
113. The comments regarding the confidentiality of the report in agency cases
apply, but in many non-agency cases the identity of the prospective adopter will be
known to the birth parent. Nevertheless there will be cases where even though the
birth parent is aware of the identity of the prospective adopter there may be good
reason for not disclosing information as to the current whereabouts of the child, so
care will still be needed in the way the report is set out.
Contents of the Report
114. In most non-agency cases, the local authority will have had to gather all the
information needed for the report during the course of its investigation following
notice given in accordance with section 44 of the Act. In some cases, much of the
material will already be available, for example, where the prospective adopter is a
local authority foster carer, and the child is looked after by the local authority writing
the report. It will facilitate the task of gathering the necessary information if the
prospective adopter is shown a copy of the Annex A format early on during the
investigation, so that they are aware of what will be needed. The preparation of the Chapter 8
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report is not the same as an assessment of prospective adopters under the AAR, but
some of the practice guidance Preparing and assessing prospective adopters may
be a helpful resource for the writer of the report. The prospective adopter can be
encouraged in appropriate cases to complete some of the information needed
themselves, although it is the responsibility of the social worker writing the report to
check this.
115. Where the child is of sufficient age and understanding, the report writer must
also explain to them in appropriate terms the purpose of the report and the
importance of expressing their own views, wishes and feelings for inclusion in it. It
will be important to provide appropriate material to help the child to understand the
nature and effect of adoption.
116. The amount of background information about the child and birth family that
the prospective adopter themselves hold will vary. Information provided by them, or
by the parent of the child whose partner is applying to adopt, will need to be checked
with information provided by the child’s birth parent (or other parent in the case of a
partner adoption) or members of the child’s wider family. In some cases, the report
may prove to be the only source of information available to the child on reaching
adulthood so that its contents have an importance beyond the immediate task of
providing information to the court.
117. It will be necessary to ascertain early on after the prospective adopter has
given notice of their intention to apply to adopt whether they have informed the birth
parent (or other parent) of their intention. If they have not done so, the social worker
will need to explain the contribution from the (other) birth parent that will be needed,
and discuss with the prospective adopter whether they wish themselves to inform the
birth parent before the social worker makes contact with them. If there is likely to be
difficulty in tracing the birth parent attempts to do so need to be commenced as early
as possible.
Section A – The report and matters for the proceedings
118. The information required for Section 1 is the same for a non-agency case as
for an agency case.
Section B - Information about the child and birth family
Part 1
119. The gathering of the information required for Part 1 of Section B will be a task
similar to the initial assessment of a child under the assessment framework. If the
child is of school age, information should be sought from their school about their
educational progress and any special needs. The Adoption and Children Act 2002
162
Health
120. Except in the case of applications by the parent or partner of the child’s
parent, the prospective adopter will need to arrange for the child to be medically
examined so that they can provide a medical report in accordance with Rule 14.12.
The health report to be attached to an application for an adoption order must not be
more than three months old. If it is, the report will need to be updated. Even if a
medical report is not required for the court, the social worker should enquire whether
there are any particular health issues relating to the child. Once the report has been
provided, a copy will be passed to the local authority. This should be given to the
local authority’s medical adviser to enable them to complete the necessary summary
in accordance with paragraph (m) of Part 1(i).
121. It will be for the social worker completing the report to ascertain as far as
possible from the birth parent information about their health in accordance with
paragraph (j) of Part 1(ii). This information should be shared with the medical adviser
in order to inform the summary in respect of the child’s health, particularly in respect
of any factors which may have genetic implications for the child’s health.
Part 2
122. The information required for this part is the same in non-agency applications
as for agency adoptions. The gathering of information about the child’s placement
history, if they have not been in care, is likely to depend on information obtained from
the prospective adopter and birth parent, and from the child in appropriate cases.
Part 3
123. Much of Part 3 will not apply in non-agency cases, but the local authority
should indicate what information it has provided to the child and birth parent, any
support and advice given to the birth parent, and any steps taken to contact a father
without parental responsibility. In the majority of cases there may not have been any
detailed assessment of the child’s needs, but where the child has been looked after,
or has otherwise come to the attention of a local authority as a child in need, these
may be available.
Section C – The proposed adopter of the child
Part 1
124. This part consists largely of factual information which will need to be obtained
from the proposed adopter, but information from other sources will also be required, Chapter 8
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including a CRB check, health information and interviews with referees. Paragraphs
(h) and (m) require a professional assessment.
CRB checks
125. It will be necessary to ascertain whether the propose adopter has been
convicted of or cautioned for a ‘specified offence’ within the meaning of AAR 23.3.
Paragraph (r) of Part 1 refers only to confirmation that the prospective adopter has
not been convicted or cautioned. However, regulation 4 of the Local Authority
(Adoption) (Miscellaneous Provisions) Regulations 2005 requires the local authority
to obtain an enhanced criminal record certificate, within the meaning of section 115
of the Police Act 1997, in respect of both the proposed adopters and any adult
members of their household.
126. If a proposed adopter or a member of their household has been convicted of
or cautioned for a specified offence, this is not an absolute bar to the making of the
adoption order. The court will exercise its discretion after taking the offence into
account. Where the check does disclose a conviction or caution in respect of one
proposed adopter, and their partner is unaware of it, the local authority is not
permitted to share this information with the partner, but may suggest that the person
with the conviction or caution disclose it to the other person, since the information
will be given to the court. Likewise, where the checks reveal information about the
conviction or caution of another adult member of the household, the local authority is
restricted from disclosing the conviction or caution to the proposed adopter. It may
inform the other adult member of the household and suggest that they inform the
proposed adopter but it may not do so itself. In these circumstances, it will be
necessary when submitting the report to the court to make the position clear, and to
include the information about the offence(s) on a separate sheet, since it would be
normal practice for the court to direct that this part of the report be shared with the
proposed adopter.
Health
127. Except where the proposed adopter is the child’s parent or partner of the
child’s parent, they will need to provide a medical report in accordance with Rule
14.12. As with the report on the child this will need to be given to the local authority’s
medical adviser so that they can write a summary of the proposed adopter’s health
history, current health and anticipated need for health care. The health report to be
attached to an application for an adoption order must not be more than three months
old. If it is, the report will need to be updated. Even in a case where a medical report
is not required under Rule 14.12 the social worker should discuss with the medical
adviser any apparent health issues which might be relevant to the decision on the
adoption order. In these cases, the reality is that the child is likely to continue to be
cared for by the proposed adopter, whether or not the adoption order is made, but in The Adoption and Children Act 2002
164
some circumstances, for example a life-threatening condition, health may be a
relevant factor in the decision.
Financial circumstances and living standards
128. The proposed adopters should provide appropriate evidence to support
information about their income, details of the tenancy or ownership of their home and
any mortgage.
Assessments
129. Paragraph (h) requires an assessment of the stability and permanence of the
relationship of proposed adopters applying as a couple. Such an assessment will
also be relevant in the case of the relationship of a couple where the child’s parent’s
partner is applying alone. Paragraph (m) requires an assessment of the ability and
suitability of the proposed adopter to bring up the child throughout their childhood.
This will need to address not only their ability to bring up a child in general, but also
their ability to meet the needs of an adopted child in the particular circumstances of
this case, and this child in particular.
Part 2
130. The requirements for this part of the report will be similar to those for an
agency adoption.
Part 3
131. Most of this part is not relevant in non-agency adoptions, although it should
include details of any information given by the local authority to the proposed
adopter. It may not be appropriate in non-agency cases (except for those where a
local authority foster carer is applying to adopt) for the local authority to make
proposals as to contact, but where the proposed adopter has proposals the local
authority should express an opinion on the likely effect of the proposed contact under
paragraph (c).
Section D – The placement
132. Paragraph (a) will not be relevant, and, in most cases, (c) and (d) will not
apply. In an application by a local authority foster carer the child will be an ‘agency
adoptive child’ within the meaning of the Adoption Support Services Regulations
2005 unless the local authority opposes the application. An agency adoptive child,
their adoptive parents, and any children of the proposed adopters are entitled on
request to an assessment of their support needs, see chapter 9. The local authority
will need to indicate whether there has been an assessment and whether adoption Chapter 8
165
support is, or is proposed to be provided, with a summary of the plan and timescales
for continuing support. Equally, if no support is to be provided, the reasons for this
should be given under paragraph (d).
Section E - Recommendations
133. As for agency cases, the local authority needs to provide a clear
recommendation, with a consideration of the relative merits of other orders. In
partner adoption cases it will be particularly relevant to consider whether a joint
residence or parental responsibility order would meet the child’s needs, leaving their
legal relationship with the other birth parent intact. In applications by relatives, it will
be important to consider, with reasons, whether an adoption order would be better
for the child than a special guardianship or residence order. If the report does not
recommend adoption, alternative proposals should be made. These might include
any of the orders mentioned above, with consideration of whether they would provide
appropriate security and stability for the child. Any recommendation as to
alternatives to adoption will need to take into account the particular circumstances of
the case. In an application by local authority foster carers, for example, if the child is
subject to a care order and the local authority considers that the child should be
moved to a different placement, the local authority’s care plan should be set out. If
the child is accommodated under section 20 of the 1989 Act, and the court declines
to make any order in the foster carers’ favour, the birth parent will be entitled to
request the return of the child to their care.
Court Fees
134. The Family Proceedings Fees Order 2008 sets out the fees for the various
applications to the courts. Where the applicant files adoption applications, at the
same time, that relates to two or more children and these children are siblings or
children of the family, only one fee is payable rather than a fee for each child. The Adoption and Children Act 2002
166Chapter 9
167
Chapter 9: Adoption Support Services
This chapter provides guidance on the principal duties of local authorities in
relation to the arrangements for assessment, provision and review of adoption
support services to persons affected by adoption. Some aspects of adoption
support, insofar as they consist of the provision of counselling, advice and
information, are also addressed in other chapters, particularly chapters 2, 3, 10
and 11.
In this chapter of the guidance:
An “adoptive child” means:
a child who has been adopted or in respect of whom a person has given
notice of their intention to adopt under section 44 of the Adoption and Children
Act 2002 (the Act); or
a child whom an adoption agency has matched with a prospective adopter or
placed for adoption.
An “agency adoptive child” means:
a child who has been adopted after having been placed for adoption by an
adoption agency; or
a child whom an adoption agency has matched with a prospective adopter or
placed for adoption; or
a child whose adoptive parent has been a local authority foster parent in
relation to them (unless the local authority oppose the adoption).
An ‘adoptive parent’ means:
a person who has adopted a child, or has given notice under section 44 of the
Act of their intention to do so, or
a person with whom an adoption agency has matched a child or has placed a
child for adoption
.
A ‘related person’ in relation to an adoptive child means either:
a relative of the child (a grandparent, brother, sister, uncle or aunt, whether of
full or half blood, or by marriage or civil partnership), orThe Adoption and Children Act 2002
168
any person with whom the local authority considers the child to have a
beneficial relationship. This should reflect, the likelihood of the relationship
continuing and the value to the child of its doing so, the security of the
relationship and the ability of the person to meet the child’s needs and the
wishes and feelings of the person regarding the child.
Provision of adoption support services
1. The provision of a range of adoption support services is a crucial element of
the statutory framework introduced by the Act. This is based on the recognition that
adoptive children and their families are likely to have a range of additional needs. For
a discussion of these see Section 2 of the Practice Guidance on Assessing the
Support Needs of Adoptive Families. Because of the lifelong effect of adoption,
adults affected by adoption, including adopted people and their adoptive and birth
family members, may have needs for support also, and this is recognised in the
provision of section 3(1) of the Act which requires each local authority to maintain a
service designed to meet the needs of all those affected. The Adoption Support
Services Regulations 2005 (ASR) and this guidance focus largely on the needs of
adoptive children and their adoptive families. It must be borne in mind that some of
the support that may be needed by adopted adults and birth relatives will fall within
the provisions of the access to information and intermediary services set out in
chapters 10 and 11 of this guidance.
2. The ASR set out detailed provisions for the assessments and decisions about
provision of adoption support. It should be noted that it is permissible under ASR 21
to vary or truncate these procedures in cases of urgent need.
What are adoption support services?
3. Under section 2(6) of the Act, adoption support services are defined as
counselling, advice and information, and the services prescribed by ASR 3.1a-f. It is
not necessary for all adoption support services to be extended to each category of
person who might seek such services, (see ASR 4). In particular, ASR 3.2 excludes
from the list of services prescribed in ASR 3.1, services in the case of ‘partner’
adoptions, ie where the child adopted or to be adopted is the birth child of the partner
of the adoptive parent. This means that there is no obligation on the local authority to
provide services other than counselling, advice and information in such cases. It
does not of course mean that children in such families may not be ‘children in need’
and entitled to services under the Children Act 1989 (the 1989 Act).
4. ASR 3.3 provides that services provided under ASR 3.1.b-f above may
include the local authority giving a person assistance in cash, for example, giving an
adoptive parent cash to pay a babysitter so they can have a break for an evening. Chapter 9
169
When cash is provided in this way it should not be means tested as it is being
provided as part of a service rather than as financial support.
5. ASR 3.4 requires that, if respite care consists of the provision of
accommodation, this must be accommodation provided by or on behalf of a local
authority under section 22 of the 1989 Act (accommodation of looked after children)
or by a voluntary organisation under section 59 of that Act. Regulation 48 of the
Care Planning, Placement and Case Review Regulations 2010 and guidance sets
out how short break care is to be provided.
People to whom adoption support services must be extended: ASR 4
6. ASR 4 sets out the persons to whom the local authority must extend adoption
support services. That is not to say that every service must be supplied to each
person in the category, rather that the local authority is obliged to ensure that these
services can be made available if an assessment shows that they are needed. The
following table sets out the services in respect of which each category of person has
a right to an assessment of their needs.
7. Under section 3(3)(b) of the Act, local authorities have discretion to extend services
to persons other than those to whom services must be extended. This means that, for
example, services to prevent disruption could be provided to a non-agency adoptive child,
and financial support could be provided if the local authority considered this appropriate.
Securing the provision of services: section 3(4) of the Act and ASR 5
8. Section 3(4) of the Act enables the local authority to arrange for adoption
support services to be provided by another body. This enables the local authority to
delegate or contract out provision of these services to a third party who will provide
services on its behalf. The Act provides that voluntary adoption agencies (VAAs)
who are registered to do so can provide adoption support services on a local
authority’s behalf. ASR 5 extends this provision to registered Adoption Support
Agencies, other local authorities, (which includes the local authority’s education
department), and primary care trusts
1
- or local health boards in Wales. This enables
the local authority to contract with a neighbouring authority and/or with an
independent registered provider to ensure that the service is provided. This may be
1
The Coalition Government proposes to replace Primary Care Trusts with GP consortia by April 2012
with GP consortia taking full responsibility for commissioning by April 2013. The White Paper Equity
and excellence: Liberating the NHS (July 2010) set out the Coalition Government’s reforms to the
NHS.The Adoption and Children Act 2002
170
People to whom adoption support services must be extended: ASR 4
Person being assessed Services for which they are entitled to be
assessed
Services to enable
discussion of matters
relating to adoption
Assistance in relation to
arrangements for
contact
Therapeutic services
Services to ensure the
continuation of adoptive
relationship
Services to assist in
cases of disruption
Counselling, advice and
information
Financial support
Agency adoptive child • • • • • •
Adoptive parent of an agency
adoptive child
• • • • • •
Child of adoptive parent • • •
Birth parents or guardians of an
agency adoptive child
• • •
A relative (or someone with whom
the local authority consider the
child to have a beneficial
relationship) of agency adoptive
child
• •
Intercountry adoptive child • • • •
Intercountry adoptive parent • • •
Birth sibling of an adoptive child • •
Non-agency adoptive children,
their parents and guardians
•
Prospective adopters •
Adopted adults, their parent, birth
parent and former guardians
•
A relative (or someone with whom
the local authority consider the
child to have a beneficial
relationship) of a non-agency
adoptive child
•Chapter 9
171
appropriate where there is a low demand for a particular adoption support service or
to avoid duplication where an existing service provided by one of the prescribed
bodies can be developed and maintained as appropriate. It will also be helpful in
cases where the person needing the support lives in the area of another local
authority than the one obliged to ensure the provision of the service.
Adoption support services adviser (ASSA): ASR 6
9. All local authorities must appoint an Adoption Support Services Adviser
(ASSA). The role of the ASSA is to:
give advice and information to people affected by adoption - a single point of
contact to provide information, signpost appropriate services and to advise on
how those services may be accessed;
give advice, information and assistance to other staff in the local authority on
assessments of need for adoption support services, the availability of services
locally and effective planning for service delivery - in particular, supporting
and facilitating intra- and inter-agency joint working where needed;
give advice on good practice in adoption where needed;
consult with, and give advice, information and assistance to other local
authorities as appropriate, for example, liaising between authorities where a
family is moving between areas to try to ensure a smooth transition in the
provision of support services.
10. In a small local authority, the ASSA may well be able to deal directly with
queries from adoptive families and queries regarding individual support plans.
However, in larger authorities this may not be possible, so the ASSA should ensure
that appropriate delegation arrangements are put in place.
11. The appointment of an ASSA provides clarity for adoptive parents about who
in the authority to approach for advice, and identifies a first port of call for questions
about adoption support services, the process for accessing support and queries in
relation to existing support arrangements. It is important that contact details for the
ASSA – a ‘phone number and postal and/or email address - be appropriately
publicised to facilitate ease of contact for those seeking help and advice. Where
appropriate, ASSAs should act as advocates, for example, liaising with education or
health services on behalf of a recipient of adoption support services.
12. ASSAs should encourage adoptive parents to access available support
services including mainstream and specialist adoption focussed services. They The Adoption and Children Act 2002
172
should also signpost adoptive parents to information about other forms of support
that might be made available to them. Information on statutory adoption leave and
pay, tax credits and benefits for adoptive parents is available from Direct Gov.
Detailed information on statutory adoption pay and leave is available from Business
Link. ASSAs can receive the latest information about the Department for Work and
Pensions services and benefits through their forum and groups, and magazines and
newsletters.
13. While queries on existing adoption support plans should normally be referred
on to the named lead person for that plan (as required by ASR 16) the ASSA may
have a role to play in resolving queries, in particular where these relate to provision
of services by other agencies. Requests for assessments of adoption support needs
that come to the ASSA should be passed on promptly to an appropriate social
worker to carry out the assessment. The ASSA should then provide advice about
such matters as the services and resources available locally, the way in which
assessments should be undertaken, and processes for planning, decisions and
review.
14. ASSAs will be key facilitators of joint working both across authority boundaries
and between departments within their own authority, particularly the education and
housing departments. The ASSA should obtain agreements with those departments
on issues such as admission priority to schools and housing allocation, so that there
are no disputes within the local authority which would adversely affect children
placed for adoption. The ASSAs should act as the liaison point between the
authorities where two local authorities are jointly seeking to provide a particular
adoption support service, (in accordance with ASR 5). ASSAs should also aim to
secure smooth transition for families in receipt of adoption support services who are
moving between areas. The ASSA should liaise with the appropriate authority before
the family moves to ensure continuity of support. The ASSA, sometimes in concert
with the child’s Independent Reviewing Officer, may also need to press for senior
officers within the authority’s own children and families’ department to make
representations to other departments, or to the health authority, for necessary action
to deliver the required support.
15. The ASSA in a receiving authority will be a key contact for a local authority
placing a child for adoption out-of-area. Whilst the placing authority remains
responsible for the assessment of an agency adoptive child (and their immediate
adoptive family) for three years from the date of the adoption order, in some
instances the receiving authority might agree to provide services and recover costs
from the placing authority (in accordance with ASR 23). The ASSAs should act as
representatives from each authority to negotiate such arrangements. Chapter 9
173
16. Although the ASR applies to local authorities, most VAAs will appoint a
person equivalent to an ASSA. Local authority ASSAs will need to liaise with such
post holders, in order to coordinate the delivery of a comprehensive adoption support
service in the area, and for families that have been approved by VAAs.
Skills and Knowledge required
17. A condition of appointment is that the ASSA will need to have good
knowledge and experience of the adoption process and of the impact of adoption on
all those involved. The ASSA should also develop a good knowledge of the relevant
services in the area, not only within local authority children’s services, but also within
those provided by other relevant agencies. This will include securing strong interand intra-agency working in the relevant local area, and ensuring the strategic
development and provision of adoption support services in local partnership
arrangements.
Cross-boundary placements and services for persons outside the
area: ASR 7
First three years after an order is made when the child is an agency
adoptive child
18. ASR 7 is concerned with ensuring that those in need of and eligible for
support services receive them irrespective of where they live. Accordingly, not only
does ASR 7.3 permit a local authority to provide services to people outside their area
but ASR 7.1 and 7.2 set out the circumstances in which a placing local authority
must be responsible for the provision of services to people living outside their area.
19. This situation may arise at the time of placement, i.e. the child is placed with
an adoptive parent living outside the local authority’s area (whether as an interagency placement or not) or subsequently if the family moves out of the local
authority’s area. In either case the placing authority is responsible for the
assessment for and provision of such support services as are identified as needed
for a period of three years following the making of the adoption order. The placing
authority will need to think carefully about the best way of delivering support. In some
cases, this could mean arranging for a service or services to be provided by the local
authority in which the family now live with that local authority having the option of
recovering costs in accordance with ASR 23. The Adoption and Children Act 2002
174
Adoption Support Duties to people outside local authority’s area: ASR 7
Agency adoptive child or
their adoptive parent or
adoptive parent’s child?
Yes
Support consists of
financial support payable
periodically and agreed
before adoption?
Child and adoptive family
outside local authority’s
area?
Adoption order made
more than three years
ago?
Local authority has no
duty to provide service
for people outside area,
but may do so
Placing local authority
responsible for
assessment and provision
of adoption support
services
Placing local authority
responsible for financial
support
Local authority where
child/family live
responsible for
assessment and provision
of support services
Yes
Yes
No
Yes
No
No
NoChapter 9
175
Ongoing financial support
20. In the case of ongoing financial support payable under ASR 8, however, the
three-year limitation does not apply, and the placing local authority is responsible for
the continued payment of financial support agreed before the adoption order is
made. It is important that this provision is not misinterpreted as justification for a
decision to pay ongoing financial support for a period limited to three years from the
making of the adoption order. Any decision on the provision of support must be
based on the needs and resources of the child and family. This applies equally to a
decision about the period for which financial support is payable. Since the three-year
limitation under ASR 7.2 does not apply to the provision of financial support, the
provision of such support will remain the responsibility of the local authority that
originally agreed it, for as long as the family qualifies for payments. This distinction
has been made because financial support can be paid in isolation from other
services that may have to be locally provided.
21. In the case of contact arrangements agreed before the adoption order, the
placing authority should also continue to be responsible for managing and supporting
the arrangements irrespective of where the adoptive family lives, as well as for any
changes to those arrangements over time.
Any time after the first three years from the date of an order when the
child is an agency adoptive child
22. Where the three-year period following the making of the adoption order has
expired, the local authority where the adoptive family lives will have the responsibility
for assessing and providing adoption support services. It is essential that there is
good communication and advance planning between the placing authority and the
local authority where the family lives to ensure that there is no break in the provision
of services. To assist with this, the placing authority may wish to make use of the
power under ASR 7.3 to provide services for a transitional period.
Liaison between local authorities
23. Liaison between different local authorities will be especially important where
two or more children have been placed with the same adoptive parent but by
different placing authorities. In these circumstances, more than one authority may
have a duty to assess and provide support services (both to the parent and to the
children, arising from the duty owed to the ‘other children’ of the adoptive parent
under ASR 4) and should co-operate with each other to ensure that services are
provided in a consistent and co-ordinated way.The Adoption and Children Act 2002
176
Placement outside of England and Wales
24. Where the child is to be placed, or moves, outside England and Wales, it
should be borne in mind that, even within the UK, the duties of local authorities to
provide adoption support are not the same as those set out under the Act and the
relevant English and Welsh regulations. Each case will need to be considered
according to its own circumstances, but placing local authorities may need to make
use of the powers under ASR 7.3 to continue to provide support services or to
contract and pay for the provision of services for more than the three years after the
adoption order. In appropriate cases, they may also make financial support available,
whether the child is outside England and Wales or outside the British Islands.
Non-agency adoptive children
25. Where the adoptive child is not an agency adoptive child the duty to
undertake assessments and provide support is placed on the local authority where
the person seeking the assessment lives. If the person or family moves to the area of
another authority, the duty will pass to the new authority. Liaison between authorities
will again be essential to ensure a smooth transition for the child. Assessment of
support needs for birth parents is the responsibility of the authority where the birth
parent lives.
Provision of financial support: ASR 8
26. The principle of some financial support for adoptive parents has been
accepted since 1975. The statutory framework sets out certain conditions, which will
trigger the need for financial support, but the overall intention is to ensure that the
adoption of a child or the continuation of adoption arrangements should not be
prevented because of lack of financial support. ASR 8.2 sets out the circumstances
in which financial support may be paid to an adoptive parent. Generally speaking, an
assessment for financial support will include an assessment of the financial
circumstances of the adoptive parent (a means test) under ASR 15, but ASR 15.4
and 15.5 set out the circumstances in which the financial circumstances of the
adoptive parent may or must be disregarded.
27. It will be seen that the conditions set out in ASR 8.2, looked at alongside
those provisions of ASR 15 under which the means test is mandatory, require that
there must be some particular condition relating to the child’s health or development,
or circumstances making it hard to place the child for adoption. Where the child
needs special care under ASR 8.2.b, it is intended that financial support should be
available where the child’s condition is serious and long-term. This might arise, for
example:
where the child needs a special diet, or Chapter 9
177
where clothes, shoes or bedding need to be replaced more frequently than
would be the case for a child unaffected by the particular condition, or
the child’s special emotional needs may mean that extra help is needed to
enable the parent to give the child one-to one attention.
See the Practice Guidance on Assessing the Support Needs of Adoptive Families for
more examples.
Remuneration for former foster carers: ASR 9
28. Financial support cannot normally include the payment of remuneration to the
adoptive parent for care of the adoptive child. ASR 9 provides, however, that where
the adoptive parent previously fostered the child they are adopting, and they
received an element of remuneration in the financial support paid to them as the
child’s foster parent, the local authority may continue to pay that element of
remuneration for a transitional period of two years from the date of the adoption
order. These payments can continue for longer than two years if the local authority
considers the case to be exceptional.
29. The purpose of the transitional provision is to enable local authorities to
maintain payments to foster parents who go on to adopt, at the same rate as they
received when they were fostering the child. This is intended to give the family time
to adjust to their new circumstances.
Payment of financial support: ASR 10, 11 and12
30. ASR 10 allows for financial support to be paid periodically, eg monthly, to
meet a need which is likely to give rise to recurring expenditure, or, in other cases, in
a lump sum or, if the local authority and adoptive parent agree, by instalments.
31. ASR 11 sets out the circumstances in which financial support ceases to be
payable, and ASR 12 sets out the conditions to which an adoptive parent (or both in
the case of a couple) must agree before financial support is payable. This includes
an undertaking to inform the local authority of any change in their financial
circumstances that might affect the amount of support payable. The local authority
may also impose other conditions that they consider appropriate. Where an adoptive
parent fails to comply with a condition the local authority may suspend or cease
payment and seek to recover all or part of the money they have paid. Where there
has been a failure to provide an updated financial report, the local authority may not
suspend, terminate or seek to recover financial support until they have given the
adoptive parent a written reminder of the need to supply this and allowed 28 days for
the response.The Adoption and Children Act 2002
178
Assessment for financial support: ASR 15
32. Particular provision is made in respect of assessments for financial support,
and the circumstances in which a person’s means must be assessed and taken into
account in any decision on payment of financial support. Except in the circumstances
set out in ASR 15.4 and 15.5, the local authority must take into account any other
grant, benefit, allowance or resource available to the person because of the
adoption, and significant income from any investments. The adoptive parent’s home
must not be taken into account. It is therefore important that adoptive parents apply
for statutory adoption pay and leave, and all benefits and tax credits to which they
are eligible. Financial support under the ASR must complement and not duplicate
financial support available through the benefits and tax credits system.
33. In determining the amount of any ongoing financial support the local authority
should have regard to the amount of fostering allowance that would have been
payable if the child were instead to be fostered. Most local authorities will have a
payment structure for foster care consisting of a ‘core’ allowance and enhancements
appropriate to the needs of the individual child. This core fostering allowance,
together with any enhancement that would be payable for the particular child, will
make up the maximum payment (excluding any remuneration for former foster carers
under ASR 9) that the local authority should consider paying by way of ongoing
financial adoption support. The purpose of applying the means test is to ascertain
what proportion of this maximum should be payable in the particular case.
34. ASR 15 sets out the circumstances in which the local authority has discretion
to disregard means (as calculated in accordance with ASR 15.3) and those in which
they must disregard them.
35. The local authority may disregard means (ASR 15.5) where they are
considering providing financial support in respect of:
the initial costs of accommodating an agency adoptive child – a ‘settling-in
grant’ that local authorities often pay when a child is first placed with the
family. It is not expected that this payment will be means tested, but local
authorities might for example, want to means test in the case of any
contribution to an adaptation to the home;
recurring costs in respect of travel for the purpose of visits between the child
and a related person so that, for example, where the local authority want to
underline the value of and facilitate contact for an adoptive child with a birth
relative, they can achieve this by providing non-means tested payments to
support this;Chapter 9
179
any special arrangements or special care referred to in ASR 8.2.b and c in
relation to an agency adoptive child so the local authority can guarantee a
financial package for a particular child who may be difficult to place in order to
facilitate their adoption;
where they are considering including an element of remuneration in financial
support payments to ex-foster carers so that the local authority can maintain
the amount paid to a foster carer who has gone on to adopt for the duration of
the transitional period (up to two years unless the local authority considers the
case to be exceptional).
36. The circumstances in which the local authority must disregard means are
when they are considering providing financial support in respect of:
legal costs, including court fees, where an adoption order is applied for in
respect of an agency adoptive child, see chapter 8; or
expenses associated with introductions between an agency adoptive child
and their adoptive parent prior to placement.
37. Where a foster carer applies to adopt a child that they have been looking after
and the local authority opposes the application, the local authority is not required to
meet the legal costs of the foster carer. This is because the authority has not placed
the child for adoption with the foster carer, and so the child does not fall within the
definition of an ‘agency adoptive child’. In such circumstances the local authority
may wish to advise the foster carer that they may be able to obtain help with legal
costs from the Legal Services Commission provided they satisfy the means and
merits tests.
38. Entitlement to Statutory Adoption Pay (SAP) and adoption leave and ordinary
or additional Statutory Paternity Pay and paternity leave depends on how long the
adoptive parent (or their partner) have been employed by their current employer and
their average earnings. Both of these conditions are based around the date the
adoption agency tells the adoptive parent that they have been matched with a child.
The local authority should consider making a payment of financial support equivalent
to the Maternity Allowance to adoptive parents who are ineligible to receive SAP
because of low earnings, length of service or self-employment, but otherwise satisfy
the relevant criteria for Maternity Allowance.The Adoption and Children Act 2002
180
Review of financial support paid periodically: ASR 20
39. ASR 20 sets out the requirements for the frequency of reviews of periodic
financial support, and the procedure to be followed. A ‘relevant’ change of
circumstances which will prompt a review is defined in ASR 20.3 as any of the
changes that an adoptive parent is required under ASR 12.1 to notify. These include
the death of the child, a change of address and a change in the adoptive parent’s
financial circumstances or the financial needs or resources of the child, as well as
any of the circumstances which would mean that financial support would cease to
payable, as set out in ASR 11.
40. The procedure for assessment set out in ASR 14 and 15 applies equally to a
review of financial support as to first assessments for financial support. If the local
authority proposes, as a result of the review, to reduce or terminate financial support
or revise the plan, before making that decision the local authority must give the
person an opportunity to make representations. For that purpose, they must give the
adoptive parent notice of the proposed decision and the time allowed for making
representations. The local authority may suspend financial support pending that
decision if they think it appropriate. The notice must contain the same information as
the notification of the outcome of the first assessment following the requirements of
ASR 17.
41. The local authority must, having regard to the review, and after considering
any representations received within the period specified in the notice, then decide:
whether to vary or terminate payment of the financial support;
whether to seek to recover all or part of any financial support that has been
paid; and,
where appropriate, revise the plan.
The local authority must then give the adoptive parent notice of their decision
including the reasons for it and, if applicable, the revised plan.
42. It will often be appropriate for an annual review of financial support to be
achieved by an exchange of correspondence between the local authority and the
adoptive family. It should be borne in mind that under ASR 12 financial support
cannot be terminated because of the adoptive parent’s failure to submit an annual
statement of means unless the local authority has reminded them of this requirement
and given them 28 days to comply. A request for the annual statement should
therefore be sent out at least 28 days before the anniversary of the original decision
or previous review.Chapter 9
181
Assessment for adoption support services: section 4(1) of the Act and
ASR 13
43. The people who are entitled on request to an assessment of their need for
adoption support services are set out in section 4(1) of the Act and ASR 13. As
explained in paragraph 6, ASR 4 limits the local authority’s duty in this respect to an
assessment of need for support services of the kind to which each category of
person is entitled. Local authorities have discretion under section 4(2) of the Act to
undertake an assessment for other persons or in other circumstances if they think it
appropriate.
44. In addition, an assessment of the adoption support needs of the adoptive
child, adoptive parent(s) and any child of the adoptive parent must be undertaken at
the time when a match is being considered under AAR 31.
45. Local authorities will normally assess a person based on their needs and
those of the child, taking into account the list of services that must be extended to
them. However, ASR 13 provides that a limited assessment may be undertaken with
reference to a particular service:
where a request for an assessment relates to a particular adoption support
service, or
if it appears that the person’s needs for adoption support services can be
adequately assessed by reference to one particular adoption support service.
46. In addition, if a local authority has decided to provide counselling, advice and
information, it will not always be necessary for an assessment to be undertaken
before that service is provided. For example, providing leaflets on adoption issues or
information on the availability of services locally need not require an assessment as
a pre-condition of receipt. However, if, when considering the person’s needs, the
local authority is contemplating providing support services other than counselling,
advice and information, an assessment should be carried out in accordance with
ASR 13-15 in order that an informed decision can be made about whether that
person should be provided with those services.
47. Local authorities, and others undertaking assessments on their behalf, will
find it useful to refer to the Practice Guidance on Assessment for adoption support
services.
Procedure for assessment: ASR 14
48. ASR 14 sets out the factors to be considered during an assessment. These
factors reflect those to be considered in assessments carried out under the
Framework for the Assessment of Children in Need and their Families. The Practice The Adoption and Children Act 2002
182
Guidance on Assessing the Support Needs of Adoptive Families takes the
framework as its basis and is a tool for practitioners undertaking assessments of
adoptive children in the context of the adoptive family. When assessing persons
other than the immediate adoptive family, local authorities will need to use whichever
of their existing assessment tools is the most appropriate to the particular case,
taking proper account of the adoption context in undertaking the assessment.
49. Section 4(8) of the Act gives local authorities the power to assess adoption
support service needs at the same time as undertaking another assessment, so that
local authorities can undertake a single assessment process avoiding the adoptive
family having to undergo a number of different assessments.
50. If needs identified during an assessment relate to services provided by bodies
other than councils with social service responsibilities, and it appears that there may
be service implications for health or education services, the local authority must
consult the relevant primary care trusts (or local health boards) or the local
authority’s education department during the course of the assessment. In view of the
time frame governing the assessment process at the time of matching, it is vital that
the relevant bodies are notified and consulted as early as possible. Failure to do so
may result in a delay in the child’s placement. Where the adoptive family live or are
going to live in the area of another local authority it will also be important for the
assessing local authority to consult with the authority where the family live. The
ASSAs of both local authorities should be able to assist in this process.
51. It will usually be necessary during the assessment for the local authority to
interview the person whose needs are being assessed, and ASR 14.3 requires this,
where the local authority consider it appropriate. In the case of an adoptive child, the
adoptive parent should be interviewed unless this is inappropriate in the
circumstances, and depending on the age and understanding of the child.
52. A written report of the assessment must be prepared, and this will inform the
decision on what, if any services are to be provided, and the contents of any plan as
to their provision. A copy of the report should be given to the person being assessed
to ensure that the process is transparent and clear
Support services plan: ASR 16
53. The local authority must prepare a plan if they propose to provide support
services, but not for services limited to the provision of advice and/or information, or
a one-off service (see section 4(5) of the Act 2005 and ASR 16). The draft plan and
notice of the outcome of their assessment must be given to the person whose needs
have been assessed. Where it appears to the local authority that the person may
have need for services from a Primary Care Trust, Local Health Board or the local
authority’s education department, they must consult them before preparing the plan. Chapter 9
183
54. The plan should set out:
the services to be provided
the objectives and criteria for evaluating success
time-scales for provision
procedures for review
the name of the person nominated to monitor the provision of services in
accordance with the plan.
55. If the assessment has been undertaken at the matching stage, the plan will be
part of the placement plan under regulation 35 of, and Schedule 5 to, the Adoption
Agencies Regulations 2005 (AAR) (see chapter 5).
Notice of outcome of assessment: ASR 17
56. Once the assessment has been completed the local authority must give the
person concerned notice of their proposed decision and to allow the person a
specified time in which to make representations before a final decision is made. ASR
17.3 sets out the information that the notice must contain, and ASR 17.4 requires
that, if it is proposed to provide services, a copy of the draft plan accompanies the
notice. Where the assessment relates to financial support, the notice must explain
the basis on which this is determined, and, if it is proposed to pay financial support,
the amount that is proposed. The regulation does not require the full report of the
assessment to be provided, but this is likely to be the most effective and open way of
fulfilling the requirement to provide a statement as to the person’s needs for adoption
support services, as required by ASR 16.3. Where the local authority’s assessment
has identified needs for services that it does not propose to provide, it should be
clear about the reason for that proposed decision, since the notice of any final
decision under ASR 18 on whether to provide services will have to give reasons for
the decision.The Adoption and Children Act 2002
184
Section 4(1) of the Act and ASR 13 Request for assessment from:
Adoptive children, their parents/guardians
Birth parents and former guardians of adopted children or adults
Adopted adults, their parents/guardians
A child of an adoptive parents (whether or not adopted)
Birth sibling (full or half blood) of an adoptive child
A ‘related person’ to an adoptive child in respect of contact
arrangements
Assess for support
services when
considering placing a
child with prospective
adopter – AAR 31.2
If the service is counselling, information or advice only, assessment not always required
ASR 14 and 15 Assessment for
adoption support services or
financial support
Consult with PCT
and education arm,
ASR 14.4
Yes Need for service identified? No
One-off service likely Yes
to be provided?
Notice given but no
draft plan needed
Prepare draft
support plan
No
Notice given – ASR 17 – stating
Person’s need for support services
Time period for making representations
Whether local authority intends to provide
services, and, IF SO
Services to be provided
For financial support, amount payable,
basis on which calculated and
conditions attached
Include draft plan
Consult with service
recipients as
appropriate
Representations received or time limit expires
Local authority decision on provision of adoption
support section 4(4) of the Act and ASR 17
Yes
No
No services
provided.
Decision given
with reasons
Notice includes
details of plan and person to review it
For financial support
Amount and how determined
Frequency of payments
Period for payment and date of first or only
payment
Conditions attached
Arrangements for review
Services/financial
support provided
ASR 19-20 Review Services
If circumstances change
At least annually
If local authority vary, revise or terminate plan
Must give notice and include draft revised planChapter 9
185
57. The ASR do not specify a period of time to be allowed for representations. For
assessments carried out on request, a period of 28 days from the time the proposed
decision was sent to the applicants is suggested as good practice. Where
assessments are undertaken at the ‘matching’ stage, the local authority’s proposals
regarding the provision of adoption support services will be part of the adoption
placement report. The timescale will then need to fit the timetable for that report
which would allow 10 days (under AAR 31.3) for the adoptive parent to consider the
report and make any representations.
58. After considering any representations received, the local authority must then
decide whether to provide any services to the person who has been assessed,
taking into account the individual circumstances of the case and the resources that
are available locally. The local authority cannot make a decision until the person has
made representations to the local authority or notified the local authority that they are
satisfied with the proposed decision and, where applicable, the draft plan, or where
the period of time for making representations has expired.
59. In the case of a decision in a ‘matching’ assessment, the local authority
decision regarding adoption support should be taken at the same time as the
decision about the proposed placement, following consideration of the placement by
the adoption panel, and will need to take account of any advice given by the panel.
Notification of decision: ASR 18
60. Once the local authority has made its decision under ASR 17, it must give
notice to the person concerned. The notice must include the reasons for the
decision. If the decision is to provide services, the notice must include a copy of the
plan and the name and contact details of the person nominated to monitor the
provision of services. In the case of a ‘matching’ assessment, the decision regarding
the provision of adoption support services will be notified alongside the agency’s
decision that the child be placed with the adoptive parent.
61. Where the local authority decides that financial support is to be provided, the
notice must include all the information set out in ASR 18.3. To ensure that adoptive
families are able to demonstrate, if necessary, in relation to tax returns or benefit
claims that financial support under the ASR should be disregarded, the following
statement should be included in the written notification:The Adoption and Children Act 2002
186
`This payment(s) is made in accordance with regulations made pursuant to section 4
of the Adoption and Children Act 2002. Under the provisions of the Finance Act, the
payment is to be exempt from tax. In addition, the payment will be disregarded if you
currently receive, or apply to receive Child Tax Credit or Working Tax Credit. You
should keep this letter safe in case you need to provide it to support any tax return or
application for a tax credit.`
62. Where service providers other than social services have been involved in the
assessment of support needs, the local authority should try, wherever possible, to
ensure that decisions made by those service providers follow the same timetable as
decisions made under this regulation. These should then be covered in a single
notification and plan sent out by the local authority that encapsulates decisions for
the whole service package wherever possible. It will be useful to develop strategic
and operational agreements to facilitate the involvement of other agencies. Where
there is difficulty obtaining the support from these other agencies within the
timescale necessary for the child’s needs, the local authority will need to be prepared
to take an active role in advocating on behalf of the adoptive child and family. The
family’s support worker should consult with the ASSA on the most appropriate way of
achieving the desired outcome.
Reviews of support services: ASR 19 (non-financial support)
63. Regular reviews enable the local authority and the service user to review the
effectiveness of any services provided and to consider whether it is appropriate to
continue that service or change the provision in some way.
64. ASR 19 sets out the circumstances in which the local authority is required to
carry out a review of the provision of support services, other than financial support
paid periodically. In addition to these requirements, the person charged with
monitoring the provision of support should be aware of any indication that the
support is no longer the most appropriate to the person’s needs, and they or the
person in receipt of services should request an earlier review if this appears to be
needed.
65. Where services are being provided during the placement period, the review
process will follow the process of review for the placement in accordance with the
AAR. AAR 36 provides that the child’s case must be reviewed within the first four
weeks of placement (the first review) then not more than three months of the first
review, and thereafter not more than six monthly intervals.
66. ASR 19 prescribes that where services are being reviewed, the procedure for
assessment set out in ASR 14 and 15 must be followed in reviews as they are in a
first assessment. Chapter 9
187
67. If the review results in the local authority proposing to vary or terminate the
provision of support services, they must give the person concerned notice and allow
them time to make representations in a similar way to the original assessment and
notice of outcome. As with the original notification in ASR 17, the notice will need to
be accompanied by a revised draft plan (if services are to be provided), and the final
decision can only be made after considering any representations from the person
affected within the time scale given in the notice.
68. The format and content of the review will vary depending on the
circumstances of the case. Notification of changes of circumstances and any review
of the provision of support services need not always necessitate direct contact
between the local authority and the adoptive parent. Where the change of
circumstances is relatively minor, the review might be limited to an exchange of
correspondence. Where the change of circumstances is relevant only to one service,
the review may be carried out with reference only to that service. However, where
the change of circumstances is substantial, for example, a major change in the
behaviour of the child, it will be appropriate to conduct a new assessment of needs.
Urgent cases: ASR 21
69. It is important that the assessment process and follow up does not delay
provision where a person has an urgent need for a service. ASR 21 therefore
provides that where any requirement under the ASR in relation to an assessment,
preparing a plan or giving notice would delay provision in a case of urgency that
requirement does not apply. The local authority will need to review provision as soon
as possible after support has been provided, in accordance with the procedures set
out above.
Notices: ASR 22
70. Notices must be in writing. The notice to the child can be sent to their
adoptive parent or to another appropriate adult where the local authority considers
the child is too young to be served or that it is otherwise not appropriate.
Recovery of expenses: ASR 23
71. The local authority that assesses need and decides that services should be
provided is responsible for funding any resulting social services provision. In
arrangements where a placing authority is responsible for assessment but the
adoptive family lives out of the area, the placing authority will need to think carefully The Adoption and Children Act 2002
188
about the best way of delivering support. In some cases, this could mean arranging
for a service or services to be provided by the local authority in whose area the
family now live with that local authority having the option of recovering costs in
accordance with ASR 23.
72. Under section 4(10) and 4(11) of the Act, a local authority responsible for
assessing and providing support services may request another local authority’s help
where this is appropriate, and the second local authority is required to comply with
the request as long as this is consistent with the exercise of their functions. ASR 23
provides that where a local authority (‘the paying authority’) has requested the help
of another local authority (‘the recovering authority’) under section 4(10) of the Act,
and the recovering authority complies with the request under section 4(11), the
recovering authority may recover the expenses associated with providing any
adoption support services from the paying authority. This however will not be the
case where the recovering authority itself has responsibility for the assessment of
the person in relation to whom help has been requested, nor does it apply where the
service provided by the recovering authority consists only of advice or information. Chapter 10
189
Chapter 10: Intermediary services and access to information in
pre-commencement adoptions (pre-30 December 2005)
This part of the guidance explains the legal framework governing the provision
of information, and of intermediary services to facilitate contact between
adopted adults and their adult birth relatives, in respect of any adoption prior
to 30 December 2005. In relation to access to information, the Adoption
Agencies Regulations 1983 still apply. In relation to intermediary services the
Adoption Information and Intermediary Services (Pre-Commencement
Adoptions) Regulations 2005 provide a framework within which intermediary
agencies may, on application of an adult adopted person, or an adult relative
of such a person, act as intermediaries and, with the consent of the subject of
the application, facilitate contact between them. The practice guidance
Adoption: Access to Information and Intermediary Services provides further
guidance.
Introduction
1. In relation to a person adopted before the commencement of the Adoption
and Children Act 2002 (the Act) on 30 December 2005, the provisions in section 51
of the Adoption Act 1976 regarding access to records were retained with some
modifications. A framework for facilitating contact between adopted adults and their
adult birth relatives was introduced under section 98 of the Act and the Adoption
Information and Intermediary Services (Pre-Commencement Adoptions) Regulations
2005 (ISR), giving these people a right to request an intermediary service from
intermediary agencies. The Adoption Contact Register, originally established in
1991, was retained with some amendments. See chapter 12.
2. The framework under section 98 and the ISR provides adopted adults and
their adult birth relatives with a right to apply to an intermediary agency for an
intermediary service. Most birth relatives, including birth parents, will have little or no
information that enables them to seek to trace a person from whom they have been
separated by adoption and establish if they wish to have contact. This framework
enables an intermediary agency to seek information from a range of sources that it
may use to establish the current identity of an adopted adult, to trace them, and
subject to obtaining their informed consent, disclose identifying information about
them to the birth relative and facilitate contact. The intermediary agency will have an
important role to play in providing specialist support and advice to all parties
throughout this process.The Adoption and Children Act 2002
190
3. An intermediary service is provided to assist adopted adults and their birth
relatives obtain the information they need to trace a relative and establish contact
with them, i.e. in relation to an adopted person, any person who (but for their
adoption) would be related to them by full and half-blood, or by marriage or civil
partnership (section 98(7) of the Act). An adopted person aged 18 or over, who was
adopted prior to 30 December 2005, has the right to request an intermediary service
to trace and facilitate contact with a birth relative. An adult birth relative of an
adopted person has the corresponding right where they wish to trace and establish
contact with an adopted adult.
4. Unlike birth relatives, adopted people have a long established right to obtain
information about their adoption and family history. Schedule 2 of the Act preserves
the legal right of an adopted person, on reaching age 18, to apply to the Registrar
General for the information needed to obtain a certified copy of their birth certificate.
Schedule 2 replaces the previous access to birth records provision at section 51 of
the Adoption Act 1976. Adopted people may also apply to the appropriate adoption
agency (AAA) for access to their adoption records. This is likely to include identifying
information about their birth parents and, possibly, others who were involved in their
adoption. See paragraph 16 for the definition of `appropriate adoption agency` and
`identifying information`.
5. An adoption agency has the discretion under the Adoption Agencies
Regulations 1983 (the 1983 Regulations) to disclose the information it considers
appropriate to an adopted person. This enables adoption agencies to provide
adopted adults with the information they need about their family history and origins.
This recognises that some adopted adults have no wish for contact with former
relatives but do wish to receive information about their family history and early life.
6. Most adopted people apply for information from the adoption agency first
before deciding if they wish to go further and actively pursue contact with a birth
relative. Some adopted people undertake their own research to establish the identity
and whereabouts of the person with whom they wish to have contact. They may then
apply to an intermediary agency, in order to request that it make the initial approach
to that person. In other cases, the intermediary agency may undertake the research
and tracing on behalf of the adopted person, obtaining the information it needs from
the adoption agency, the Registrar General, the courts or other public records. The
extent of the work undertaken by the intermediary agency will therefore depend upon
the range of information that the adopted person already holds. Chapter 10
191
Confidentiality and access to information
7. Regulations 14 and 15 of the 1983 Regulations provide for the retention,
secure storage and confidentiality of adoption case records in all cases where the
adoption order was made before 30 December 2005. The case records, in
whatever format the information is preserved, must be kept in secure conditions at all
times, e.g. a lockable cabinet or secure room to prevent the theft, unauthorised
disclosure, loss or destruction of, or damage to the adoption records. This applies to
adoption case records not kept at the agency’s main premises, either on a temporary
or permanent basis. The regulations also set out the circumstances in which
adoption agencies must disclose information from the records, or have discretion to
do so. Records must be retained for a minimum of 75 years from the date of the
adoption order.
8. The adoption agency should keep its security arrangements under review.
Any breach of the security of records are acted on promptly and security
arrangements changed, if necessary, to prevent recurrence. All agency staff with
responsibility for handling adoption case records should be clear as to their duty to
safeguard the records at all times.
9. ISR 4.2 distinguishes between the provision of an intermediary service and an
adoption agency’s function of disclosing information to adopted adults about their
adoption, their family history and early life. Initially, most adopted people seek
information about their adoption and reflect on this before deciding if they wish to go
further and initiate a search for a birth relative. Where an adopted person is only
seeking information about their adoption, they should apply to the adoption agency
that holds the relevant case records about their adoption. The adoption agency has
the discretion under regulation 15 of the 1983 Regulations to disclose the information
it considers appropriate to the adopted person. The adoption agency’s function of
providing access to the records it holds does not in itself constitute an intermediary
service for the purposes of section 98 of the Act and the regulations.
10. Adoption records, like other records, are subject to the provisions of the Data
Protection Act 1998, except in one respect. They are exempted from the subject
access provisions of section 7 of that Act by virtue of the Data Protection
(Miscellaneous Subject Access Exemptions) Order 2000 (as amended by article 2 of
the Adoption and Children Act 2002 (Consequential Amendments) Order 2005). This
means that the person who is the subject of the record does not have the right to
insist on seeing all the records that the data controller holds about them.
Nevertheless, in most cases it will be appropriate for the agency to exercise its
discretion under regulation 15 of the 1983 Regulations to disclose to the adopted
person information that it holds about him. Where it is a question of the possible
disclosure of ‘third party’ information, such as identifying information about members
of the birth family or former foster carers, the agency must act in accordance with the The Adoption and Children Act 2002
192
principles of the Data Protection Act. Although the starting point for disclosure of
third party information is that it should only be disclosed with the consent of the
person to whom it relates, information about a third party must be disclosed if “it is
reasonable in all the circumstances” to do this without their consent; see section 7(4)
of the Data Protection Act. A similar approach is likely to be helpful in deciding how
to apply the Data Protection Principles to disclosure of adoption information. It will
be necessary to consider the impact that disclosure will have on the third party and
weigh this against the impact that non-disclosure will have on the person seeking
information. The agency in exercising its discretion will need to take account of the
context and all the circumstances; see the case of Gunn-Russo v Nugent Care
Society [2001] EWHC Admin 566. It is important that the reasoning behind any
decision as to disclosure be fully recorded.
11. Under Schedule 2 of the Act, an adopted person on reaching age 18, may
apply to the Registrar General for the information needed to obtain a certificate copy
of their birth certificate. The adopted person may use this information as the basis for
undertaking their own search for a birth relative using the public records available to
them. They may then apply for an intermediary service to make the initial approach
to the birth relative with whom they are seeking contact on their behalf.
12. Part 1 of the practice guidance on Access to Information and Intermediary
Services provides further information about the provision of information and
counselling to adopted adults under the 1983 Regulations and Schedule 2 of the Act.
It should be noted that adoption support agencies may also have a role to play in the
delivery of this service.
Intermediary services
13. An intermediary service is assisting adopted adults, who were adopted before
30 December 2005, to obtain information in relation to their adoption; and facilitating
contact between such persons and their relatives. See ISR 4.1.
14. However, it is important to note that the provision of information to adopted
people may also occur under the 1983 Regulations when the adoption agency
holding the records exercises its discretion to provide information ‘for the purposes of
its functions as an adoption agency’. In these circumstances, as is made clear by
ISR 4.2, the provision of information does not fall within the definition of an
intermediary service under the ISR.
15. An intermediary agency is an adoption support agency (ASA) or an adoption
agency that provides an intermediary service in accordance with the regulations. See
ISR 4.3.Chapter 10
193
16. ‘Appropriate adoption agency’ is defined by section 65(1) of the Act, in relation
to an adopted person or to information relating to the adoption, as the agency that
placed that person for adoption, or if different, the agency which keeps that person’s
adoption records. In a non-agency adoption, the AAA is the local authority to which
notice of intention to adopt was given. In some older adoptions, particularly before
1976, there may be no AAA. This might be, for example, where the adoption was
arranged privately and no local authority was given notice of intention. In some
cases it may prove impossible to establish which agency, if any, was the AAA.
17. ‘Identifying information’ is defined in ISR 7.4, for the purposes of regulations
7, 9 and 12 as information which, whether taken on its own or together with
information possessed by the applicant, enables the subject, i.e. the subject of the
application, to be identified or traced.
Who may provide services?
18. ISR 3.1 stipulates that an intermediary service under section 98 of the Act
may be provided by an ASA or an adoption agency (a local authority or voluntary
adoption agency (VAA)). An ASA will need to be registered under Part 2 of the Care
Standards Act 2000 to provide these services, and indicate this in its statement of
purpose. An adoption agency may choose to provide an intermediary service,
although there is no statutory requirement for it to do so. When it does so, it must
provide the service in accordance with the requirements of the ISR. A VAA that
provides intermediary services is exempt from having to register as an ASA but they
need to notify Ofsted and request the variation of their conditions of registration. A
local authority should also notify Ofsted that they provide an intermediary service.
19. The regulations confer functions on:
ASAs;
adoption agencies;
the courts; and
the Registrar General.
The regulations set out the detail of how intermediary services will operate and the
circumstances in which the bodies listed above will be able – or required – to
disclose information to each other to facilitate the tracing of individuals involved in a
person’s adoption.
Accepting applications under ISR 5
20. Applications may be accepted:
from persons adopted before 30 December 2005 for assistance in contacting The Adoption and Children Act 2002
194
a birth relative; or
from a relative of a person, adopted before 30 December 2005, for assistance
in contacting the adopted person.
In respect of adoptions after 30 December 2005, the framework at sections 56-65 of
the Act and the Disclosure of Adoption Information (Post-Commencement
Adoptions) Regulations 2005 will apply, see chapter 11.
21. An intermediary agency must give priority to those applications it receives in
respect of adoptions that took place prior to 12 November 1975. This is intended to
help intermediary agencies, the Registrar General and the courts manage demand
for these services, and to provide priority access to services for those who have the
greatest need. These are likely to be those birth relatives who relinquished a child
for adoption many years ago, and are now elderly, and adopted people who were
adopted many years ago and whose birth parents are now elderly. In relation to
adoptions after 12 November 1975, where the intermediary agency has limited
capacity it may only accept applications where it is satisfied that the circumstances
are sufficiently exceptional, such as where the applicant is terminally ill. Where the
intermediary agency does have spare capacity, it may routinely accept applications
in respect of post-1975 adoptions.
22. Both the applicant and the subject of the application must have attained the
age of 18. Before proceeding with an application, the intermediary agency should
seek to establish, as far as reasonably practicable, that both the applicant and the
subject of the application are aged 18 or over. Where the intermediary agency
accepts an application, for example from an adopted person seeking contact with a
birth sibling, and the agency subsequently discovers that the subject of the
application is under the age of 18, it must not proceed further with the application.
This does not limit the powers of a local authority, which has responsibilities under
the adoption support provisions to provide support and counselling to an adopted
adult in this position.
No obligation to proceed if not appropriate: ISR 6
23. The intermediary agency has a general discretion not to proceed, or continue
proceeding, with an application unless it considers it appropriate to do so. In
reaching this decision, ISR 6.2 requires the intermediary agency to have regard to
certain specified issues.
24. It is important to note that this regulation applies not only to the intermediary
agency’s initial decision on whether to proceed, but also to the possibility of a later
decision on the appropriateness of continuing. In some cases, there may be strong
reasons, either apparent immediately to the intermediary agency in its contact with
the applicant, or expressed by the AAA when it gives its views, which argue against Chapter 10
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taking up the application. In the majority of cases, however, the information gathered
and other factors affecting a decision will become apparent over time. The agency’s
own procedures need to ensure that they allow the opportunity to reflect on the
information as it becomes available, so that the agency can appropriately exercise its
discretion as to whether to continue with the application.
25. In deciding whether to proceed or continue proceeding with an application,
ISR 6.2.a requires the intermediary agency to have regard to the welfare of the
applicant, the subject of the application, and any other person who may be identified
or otherwise affected by the application. It must also have regard to all the other
circumstances of the case. Each case will be different and some will involve
additional factors or particularly complex issues.
26. Where the AAA is providing the intermediary service, it will first need to
consider the information available to it on the case records it holds. If necessary, it
may also seek additional information held by the Registrar General on the Adoption
Contact Register to help inform the exercise of its discretion as to whether to
proceed, or continue proceeding, with the application. For example, where the
subject of an application has registered a wish for no contact with the applicant on
the Adoption Contact Register, the intermediary agency may decide, based on that
entry, not to proceed further with the application. Nevertheless, the agency should
advise the applicant that the subject might change their mind in the future and that if
the applicant registered on the Adoption Contact Register, they would be notified if
this were to occur. There may also be information on the relevant adoption case
record to indicate that proceeding with the application could place the applicant (or
the subject) at risk of harm.
27. Many adopted people have already sought some information about their
adoption before deciding that they wish to pursue contact with a relative. Some
adopted people will have undertaken their own research and established the current
identity and whereabouts of the person with whom they are seeking to establish
contact. In such cases, they may apply to an intermediary agency to make the initial
approach to that person. It is important, therefore, that on receipt of an application
the intermediary agency establishes, as far as possible, what information the
applicant already holds, what steps they have taken to trace the person(s) with
whom they are seeking contact and their expectations in relation to possible contact.
This will be an important part of the preparatory work with any applicant, and still
assist the agency in deciding whether to initiate the further enquiries needed to
proceed with the application.
28. Where the intermediary agency is not the AAA, ISR 12 requires it to establish
if an adoption agency was involved in the adoption and, if so, to identify the AAA. It is
then required to ascertain the adoption agency’s views on the application and any
proposed contact between the applicant and the subject of the application. It is The Adoption and Children Act 2002
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possible that another agency involved in the placement (in the case of an
interagency placement), or the provision of adoption support (where the adoptive
family lives outside the area of the placing agency) may have information that has
not been shared with the AAA. The AAA may wish to ascertain from such an agency
whether they hold information that would be relevant to the enquiry of the
intermediary agency.
29. The adoption agency may express the view, based on the information it holds,
that proceeding with the application could be harmful to the welfare of the applicant
or the subject of the application. The intermediary agency must have regard to those
views. The adoption agency will be best placed to provide advice to the intermediary
agency based on the information it holds. If the subject of the application is an
adopted person who has registered a veto, the agency will be bound by the terms of
the veto. The intermediary agency may also seek information held by the Registrar
General on the Adoption Contact Register to help inform its decision as to whether to
proceed with the application.
30. ISR 12 sets out the enquiries that the intermediary agency must make of the
AAA. In the majority of cases the intermediary agency will be best placed to deal with
the case, and to form a view on the appropriateness of proceeding, if it receives from
the AAA not only its views on the application, but the reasons for those views, with
information supporting the reasoning. This will also be essential to enable the
intermediary agency to provide counselling for the applicant.
31. In circumstances where:
the intermediary agency is unable to establish the identity of the AAA;
the AAA is identified but its records have been lost or destroyed; or
the intermediary agency establishes that no adoption agency was involved
in the adoption,
the intermediary agency will have scant information to inform its decision as to
whether to proceed. Thus, it may be useful to seek information that the Registrar
General may hold on the Adoption Contact Register to inform any decision as to
whether to proceed with the application.
32. In addition to the welfare of the applicant and the subject of the application,
the intermediary agency is also required by ISR 6.2.a.iii to have regard to the welfare
of “any other person who may be identified or otherwise affected by the application”.
The agency will therefore need to have regard to the welfare of the adoptive parents
as well as any siblings within the adoptive family. Although the intermediary agency
is not routinely required to seek the view of the adoptive parents, it will need to
exercise its discretion as to whether it is appropriate to do so having regard to the
particular circumstances of the case.Chapter 10
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33. The views of the adoptive parents will not on their own be decisive but one of
a range of factors to which the agency must have regard in deciding whether to
proceed, or continue proceeding, with the application. However, where a younger
sibling within the adoptive family is under the age of 18, the intermediary agency is
required by ISR 6.3 to have particular regard to his or her welfare.
34. The intermediary agency must have regard to any information it obtains from
the Registrar General on the Adoption Contact Register under ISR 13 in deciding
whether to proceed, or continue proceeding, with an application. Where the subject
of the application had registered a wish for “no contact” on the Adoption Contact
Register, this does not preclude the intermediary agency from proceeding, or
continuing to proceed, with the application. The intermediary may still proceed with
the application if it considers it appropriate to do so. Each case will be different and
must be judged on its merits. That is why the intermediary agency is also required by
ISR 6.2 to consider “all the circumstances of the case”. Any approach made by the
intermediary agency in these circumstances should make it clear that the agency is
aware of the subject’s registered wish for no contact.
35. The intermediary agency must have particular regard to the welfare of any
person who may be identified or affected by the application who is under the age of
18. This regulation will apply where, for example, the subject of an application is a 19
year old adopted person with a sibling under the age of 18. Although it will ultimately
be for the adopted adult to decide if they wish to have contact with the applicant, the
intermediary agency must also consider the welfare of the younger sibling in
deciding whether to continue with the application. The agency may wish to seek the
views of the subject’s adoptive parents on this issue in coming to its decision. Where
the agency decides to consult them it should make clear that this is an opportunity
for them to make their views known but that they have no right to veto the
application. Where the intermediary agency forms the view that proceeding with the
application would not be in the interests of the younger sibling’s welfare, it may
decide not to proceed with the application or to proceed with the application in the
future.
36. The intermediary agency must not proceed, or continue proceeding, with an
application where it ascertains that the subject of the application is under the age of
18.
Consent of subject to disclosure of identifying information: ISR 7
37. The framework for the provision of intermediary services is based on the
premise that contact and the sharing of information will only be facilitated where both
parties agree. ISR 7 therefore prohibits an intermediary agency from disclosing
identifying information to the applicant about the subject of the application without The Adoption and Children Act 2002
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having first obtained the subject’s consent. This important safeguard recognises that
some adopted persons and birth relatives have no wish to be traced or to have their
details passed on.
38. The requirement to obtain consent is intended to provide a safeguard against
the inappropriate disclosure of sensitive information about the subject, which the
intermediary agency has obtained on the applicant’s behalf, and which would not
otherwise be available to the applicant. This will generally be the identifying
information which the intermediary agency obtains from the adoption agency’s case
records or other information which is not in the public domain. Therefore, this
regulation will not apply to any identifying information that the applicant already
holds, for example, where an adopted adult has undertaken their own research and
has been able to establish the identity and/or whereabouts of the subject. The
regulation will also not apply to identifying information which could reasonably be
obtained by the applicant from existing public records such as birth, marriage, civil
partnership or death certificates held by the Registrar General or information from
the electoral register.
39. ISR 7.2 applies where intermediary agency discovers that the subject of the
application has died or where it determines that the subject is incapable of giving
informed consent. Informed consent means that the subject fully understands the
nature, circumstances and background of the agency’s request and the implications
of their decision to give or withhold consent.
40. Where the intermediary agency ascertains that the subject of the application
has died, this regulation provides the discretion to disclose identifying information
about the subject, having first had regard to the matters specified at ISR 6.2. The
intermediary agency must therefore have regard to the welfare of any other person
who may be identified by disclosing the identifying information about the subject or
any other person who may be affected by the application.
41. Each case will be different but the intermediary agency should consider, as a
minimum, whether it is appropriate to seek the views of the deceased person’s next
of kin before deciding whether to disclose the identifying information. Much will
depend on the circumstances, particularly the length of time since the person’s death
and the circumstances (if known) of the death. The agency may also consider it
appropriate to seek the views of persons in addition to the next of kin, such as other
family members of the subject, depending on the circumstances of the case. Where
it has sought the views of the next of kin (and possibly others), the agency must
have regard to their welfare and views, when deciding whether to disclose the
identifying information. It may then disclose the information to the applicant if it
considers it appropriate to do so. Chapter 10
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42. In circumstances where the intermediary agency determines that the subject
is incapable of giving informed consent because of a learning difficulty or other
mental impairment, it is again required to have regard to the matters specified in ISR
6.2. The agency may again need to seek the views of others before deciding
whether it is appropriate to disclose identifying information about the subject to the
applicant.
43. The intermediary agency will need to establish if someone has been
appointed to act on behalf of the subject, for example, the Court of Protection, and
would have to consult that person or body. Depending on the circumstances of each
individual case, the agency may also wish to seek the views of others such as the
subject’s spouse or registered civil partner (if applicable) or other family members.
Subject to any views obtained by the intermediary agency and having regard to the
welfare of others identified or affected by the application, the agency may then
disclose identifying information to the applicant if it considers it appropriate to do so.
44. The intermediary agency must take steps to ensure that any person whose
consent is required has sufficient information to be able to make an informed
decision as to whether to give their consent. This regulation requires the
intermediary agency to provide the subject with information about the application and
the background of the case. The intermediary agency may also provide the subject
with information about the applicant, their circumstances and the reasons for their
application. This may include information that identifies the applicant, as the subject
will wish to know who is making contact, their reasons for doing so and their
expectations, see ISR 16.
45. The process of obtaining consent will need to be handled carefully and
compassionately and the intermediary agency should advise the subject about such
counselling services or other specialist support and advice as may be available.
Finally, the intermediary agency must be satisfied that the subject fully understands
the nature and circumstances of the request for consent and the implications of any
consent decision they might make.
46. Adopted people and birth relatives are likely to be in a different position, in
that an adopted person has a right to obtain a certified copy of their birth certificate
and is likely already to possess a range of information about the subject of the
application, including their identity. They may also already have had access to some
information from adoption agency records. It is principally for this reason that
“identifying information” in this regulation is defined as information, which, whether
taken on its own or together with other information possessed by the applicant,
enables the subject to be identified or traced. Where the applicant is a birth relative it
will usually be the former, i.e. the information which reveals the current identity of the
adopted person. The Adoption and Children Act 2002
200
47. Where the applicant is an adopted adult, they may have undertaken their own
research that enabled them to establish the current identity and/or the whereabouts
of the person with whom they are seeking contact. They may subsequently apply to
an intermediary agency to make the initial approach to that person. The requirement
to obtain the subject’s consent will not therefore apply to any identifying information
already held by the applicant. However, where the intermediary agency obtains any
identifying information about the subject over and above that which is already held
by the applicant, and which is not otherwise publicly available to the applicant, it is
required to obtain the consent of the subject to the disclosure of that information.
Where consent is not given, the intermediary agency will need to make it clear to the
subject that the applicant already holds sufficient information to enable them to make
a direct approach and may choose to do so even if the subject has indicated a wish
for no contact with them.
Veto by an adopted person: ISR 8
48. Where an adopted adult has no wish for contact with birth relatives, the main
repository for formally registering such a wish will continue to be the Adoption
Contact Register maintained by the Registrar General. Section 80 of the Act
enhanced the role of the Adoption Contact Register so that an adopted adult or a
birth relative may formally register a wish for no contact or for contact. An adopted
person may also specify those birth relatives with whom they do or do not wish to
have contact. ISR 6.2 requires an intermediary agency to have regard to any
information which it has obtained from the Adoption Contact Register in informing its
discretion as to whether to proceed, or continue proceeding, with an application.
49. There will be some cases where an adopted adult has no wish for contact or
to be approached by an intermediary agency on behalf of a birth relative. There will
also be cases where the adopted person only wishes to be approached on behalf of
a specified birth relative or in specified circumstances. In such cases, ISR 8.1
enables the adopted person to register a formal veto with the AAA.
50. An adopted adult may formally register an absolute or a qualified veto. An
absolute veto would prevent an intermediary agency from making an approach in
any circumstances. However, a qualified veto would enable the intermediary agency
to make an approach on behalf of a birth relative specified by the adopted person or
in circumstances specified by the adopted person, for example, where there was
information about a hereditary medical condition.
51. This provision is intended to ensure that where an adopted person has no
wish to be approached by an intermediary agency, that wish for privacy is respected.
52. Where an adopted person wishes to register a formal veto with the adoption
agency under ISR 8, the adoption agency must first take steps to verify that the Chapter 10
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person seeking to register the veto is the adopted person. Any veto must be an
`informed veto`. Therefore, before any veto may be registered the agency must also
be satisfied that the adopted person fully understands the implications of so doing,
particularly where they wish to register an absolute veto. The agency should explore
fully with them their reasons for wishing to register a veto and should explain clearly
the effect of doing so. The agency must also make clear to the adopted person their
right to amend or withdraw the veto at any time and the steps to be taken should
they wish to do so. The agency should consider the adopted person’s need for
counselling in respect of any decision to register, amend or retract any veto, whether
absolute or qualified.
53. A formal veto is not a life-long veto but will remain in place until such a time as
it is amended or retracted by the adopted person. An absolute veto under ISR
8.1.b.i will prevent an intermediary agency from making an approach on behalf of a
birth relative under these regulations. So, for example, where the birth relative
wished to establish contact with the adopted adult because of a possible hereditary
medical condition, the intermediary agency would be precluded from proceeding with
an application under these regulations by virtue of ISR 8.3. In such cases, the AAA
could pass on the medical information supplied by the birth relative to the adopted
person where it considers it appropriate to do so. The agency must be fully satisfied
that the circumstances are sufficiently exceptional to warrant contacting the adopted
person to pass on this information. In exceptional cases, a person may also make an
application to the court under section 79(4) of the Act for the disclosure of the
identifying information held by the Registrar General on the Adopted Children
Register.
54. There may be a small number of cases where a birth relative has been able to
establish independently the identity and/or the whereabouts of an adopted adult
without any assistance from an intermediary agency. They may then apply to an
intermediary agency to make an initial approach to the adopted person on their
behalf. Where the intermediary agency ascertains that the adopted person has
registered a veto it will not be able to make this approach on behalf of the birth
relative, unless the circumstances of the application match those specified by the
adopted person in any qualified veto.
55. However, given that the birth relative already holds the information that would
enable them to make a direct approach, the adoption agency that holds the veto may
contact the adopted person to notify them of this fact. The agency should advise
them that the veto would need to be amended or withdrawn to enable the
intermediary agency to take forward the application and provide the necessary
expert counselling and support. It should be made clear to the adopted person that if
they do not wish to amend or withdraw the veto, then the birth relative may choose to
make a direct approach. The Adoption and Children Act 2002
202
56. An adopted person can register a qualified veto which enables them to specify
the person(s) on behalf of whom an approach from an intermediary agency would be
welcome. For example, an adopted person may not wish to be approached on behalf
of a birth parent but would welcome an approach on behalf of a birth sibling.
57. This regulation also enables the adopted person to specify the circumstances
in which an approach from an intermediary agency would be welcome. They could
specify, for example, that an approach would only be welcomed where the
intermediary agency was acting on behalf of a birth relative who had important
medical information they wished to impart or in circumstances involving a bequest
from a deceased birth relative.
58. The AAA must keep a written record of any veto on the adopted person’s
case record. It is important that where an enquiry is made by an intermediary agency
the AAA is able to respond speedily and inform the intermediary agency of the
existence of the veto. Agencies may find it helpful to maintain a central register of
any vetoes recorded, perhaps with the index to their adoption records. Where an
intermediary agency contacts the adoption agency under ISR 12 to ascertain its
views on an application, it is also required by this regulation to notify the intermediary
agency of the terms of any veto which may have been recorded on the adopted
person’s case record.
59. An intermediary agency may not proceed with an application from a birth
relative where it is aware that an absolute veto has been registered by an adopted
person under this regulation. Where a qualified veto has been registered with the
AAA, the intermediary agency may only proceed where the application falls within
the circumstances specified by the adopted person.
Provision of background information where consent refused etc: ISR 9
60. ISR 9 will apply where the intermediary agency has been unable to obtain, for
whatever reason, the consent of the subject to the disclosure of identifying
information to the applicant. It will also apply where the adopted person has
registered a veto with the AAA under ISR 8.
61. The intermediary agency has the discretion to disclose background
information to the applicant if it considers it appropriate to do so. This could be a
wide range of information, provided it does not fall within the definition of identifying
information at ISR 7.4. It allows the intermediary agency to pass on details of the
subject’s domestic or family circumstances, their general health and well-being or
other information which may be of value to the applicant. For more guidance on this
issue see 4.38-44 of the practice guidance on Adoption: Access to Information and
Intermediary Services. Chapter 10
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Counselling: ISR 10
62. There is no legal requirement for a person to receive counselling, whether or
not they have already received counselling when applying to the Registrar General
for access to birth records or to the adoption agency for the disclosure of information
about their adoption. However, the valuable role that counselling can play is well
established. Chapter 12 provides guidance on who should be offered counselling
and which body can provide counselling services.
Procedure on receipt of application: ISR 11
63. The agency must take reasonable steps to verify the identity of the applicant
and any person acting on the applicant’s behalf. For this purpose, it may be
necessary to ask for a passport, driving licence or other evidence. The passport or
driving licence, or a birth certificate, will also provide proof of age, which is required
by ISR 12.b.
64. Where a person is claiming to act on behalf of the applicant it will be
necessary (ISR 11.c) for the agency to satisfy itself that they are authorised to do so.
Where the applicant suffers from mental incapacity this may not be a straightforward
matter.
65. Where the applicant is a birth relative of an adopted person, ISR 11.d requires
the agency to confirm the relationship. For example, a birth mother may prove her
relationship to the adopted person by providing a copy of her birth certificate, her
child’s original birth certificate, and if she was married after the child’s birth, her
marriage certificate. Before proceeding with an application the intermediary agency
may request any additional documentation it considers appropriate in order to be
satisfied on this point.
Contacting the appropriate adoption agency: ISR 12
66. ISR 12 will only apply in those cases where the intermediary agency is not the
AAA. Where the intermediary agency has accepted an application, it must take all
reasonable steps to establish whether an adoption agency was involved in the
adoption and, if so, to identify the AAA. The applicant may know the adoption agency
that arranged the adoption, in which case the intermediary agency needs not make
any further enquiries other than to establish if the agency still exists or where the
relevant adoption records are held.
67. ISR 12.2 sets out the steps that the intermediary agency may take in seeking
to identify the AAA, through the Registrar General, the court, or the local authority for
the area in which the adoption took place. The Registrar General may be able to
identify, from the records he holds, if an adoption agency was involved in the The Adoption and Children Act 2002
204
adoption and the name of that agency. It needs to be borne in mind that, for past
adoptions, the courts had no obligation to notify the Registrar General of the name of
the adoption agency and the court itself may be the best source of information.
Where the Registrar General does hold information about the AAA, he is obliged by
ISR 14.1 to disclose this information to the intermediary agency. Where he does not
hold this information he is required by ISR 14.2 to provide the intermediary agency
with written confirmation of that fact together with details of the court that made the
adoption order. ISR 12.2.b then permits the intermediary agency to make an
application direct to the court for the information it needs, and the court is required by
virtue of ISR 15 to supply the information, for which it may charge a fee of up to £20.
Where the court is unable to comply with the request because it does not hold the
information sought, it must notify the intermediary agency in writing, specifying the
searches that have been made of the court records. Where it has reason to consider
that another court may hold the relevant information it must also provide the
intermediary agency with details of that court.
68. An application to the court for information to identify the AAA, is to be
distinguished from an application by an adopted person, or a birth relative to a court
under Rule 53(4) of the Adoption Rules 1984 or Rule 32(1),(3) and (6) of the
Magistrates’ Courts (Adoption) Rules 1984 asking for other information from the
court files under the exercise of judicial discretion. The provision of information under
ISR 15.1 is an administrative act that can be undertaken by the court staff.
69. The intermediary agency may make enquiries of the local authority in the area
in which the adoption took place. The local authority may have placed the child for
adoption or it may have provided a report to the court. It may also hold the adoption
records in respect of former VAAs that used to operate within its boundaries or it
may be able to signpost the intermediary agency to the authority that now holds the
relevant record.
70. If it has been possible to identify the AAA, the intermediary agency must make
enquiries of that agency. It is first essential to establish, in the case of an application
by a birth relative, whether the adopted person has registered a veto with the AAA
under ISR 8. If a veto has been registered, the intermediary agency is prohibited
from proceeding with the application, unless the circumstances fall within the terms
of a qualified veto. The agency may nevertheless be able to provide the applicant
with some background information under ISR 9.
71. On an application by a birth relative, where no veto exists, the intermediary
agency is required to ascertain from the AAA whether the subject of the application
has ever registered their views with the agency as to contact or about being
approached by the agency with regard to facilitating contact. The adopted person
may have previously contacted the agency to register their views about possible
contact or about being approached by an agency on behalf of a birth relative. They Chapter 10
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may have previously indicated a wish for contact or no contact or expressed a wish
only to be approached by the agency in certain circumstances, such as where
important health information has come to light. Where a wish for no contact was
registered by an adopted person prior to implementation of the Act, this will not
constitute a formal veto under ISR 8. Where the adopted person has registered their
views with the adoption agency, the intermediary agency is therefore required by ISR
6 to have regard to those views in deciding whether to continue with the application.
72. Where the application is by or on behalf of an adopted person, the birth
relative who is the subject will not have been able to register a veto. Nevertheless,
they may have contacted the adoption agency to indicate their views on any possible
approach with regard to contact. If they have done so, then the intermediary agency
must have regard to those views in deciding whether to proceed.
73. The intermediary agency must ascertain the AAA’s views as to the
appropriateness of the application and any proposed contact between the applicant
and the subject. In forming its view on the application, the AAA must have regard to
the matters set out in ISR 6, including the welfare of the applicant and the subject.
There may be information on the case record to indicate that the application is
inappropriate or even vexatious. The intermediary agency is required by ISR 6.2.b to
have regard to the views of the adoption agency in deciding whether to proceed, or
continue proceeding, with the application.
74. Having considered the adoption agency’s views on the application, together
with the other matters set out at ISR 6, if the intermediary agency decides to proceed
with the application it may then seek the disclosure of certain information from the
adoption agency. ISR 12.3.c permits the intermediary agency to seek the information
it requires for the purposes of:
counselling and preparation of the applicant;
tracing the subject of the application;
enabling the subject to make an informed decision as to whether they consent
to the disclosure of identifying information to the applicant or possible contact;
counselling the subject, in the relation to the consent decision.
75. The AAA is required by ISR 12.4 to take reasonable steps to provide the
intermediary agency with the information it has requested for the purposes listed
above. Where the information requested is clearly not relevant to the purposes set
out in ISR 12.3.c the AAA is under no obligation to provide it. It is important that the
agency respond quickly to the request for information; there is a risk that an
applicant, particularly an adopted person who already knows the identity of birth
family members, frustrated by the delay in providing the information, may decide to
bypass the intermediary agency and attempt direct contact themselves. The AAA
should make clear to the intermediary agency any conditions or restrictions that the The Adoption and Children Act 2002
206
agency may have imposed in respect of the continued safekeeping or onward
disclosure of that information.
Obtaining information from the Registrar General: ISR 13 and 14
76. ISR 13 permits an intermediary agency to seek further information from the
Registrar General in certain circumstances. These are where the intermediary
agency:
is unable to obtain sufficient information from the AAA to enable it to trace the
subject of the application;
is unable to identify the AAA or ascertains that there is no AAA; or
finds that the AAA does not hold the relevant information.
77. The intermediary agency may request in writing from the Registrar General
information from the Adoption Contact Register. An entry in the Adoption Contact
Register may contain the information that the agency needs, such as an address, to
enable it to trace the subject. If the entry in the Adoption Contact Register indicates
that the subject has registered a wish for no contact with the applicant, the agency
will need to consider whether it is appropriate to continue with the application despite
the registered wish, but it is not prohibited from doing so.
78. The agency may also request, if necessary, the information that the Registrar
General holds linking an entry in the Register of Births with an entry in the Adopted
Children Register. Where the intermediary agency has been unable to establish the
post-adoption identity of the adopted person, for example because the records have
been lost or are incomplete, or because the adoption was a private arrangement with
no agency involvement, this information will enable it to do so.
79. An AAA whose own records are lost or incomplete may also seek information
from the Registrar General under this regulation.
80. The Registrar General must take reasonable steps to comply with a written
request for information under ISR 12 or 13. If he holds the information requested he
is obliged to disclose it, and he may charge a fee of £10 for doing so.
Authorised disclosures: ISR 16
81. ISR 16 stipulates the circumstances in which an intermediary agency may
disclose information, including identifying information, to other persons or bodies.
82. The intermediary agency may disclose information to the Registrar General or
the court where it is seeking information from them under ISR 12 or 13. The agency
will need to provide the Registrar General or the court with sufficient information Chapter 10
207
about each individual case to enable them to properly discharge their functions
under ISR 14 and 15. This will include information which identifies individuals
including the applicant and the subject of the application.
83. The intermediary agency may disclose information to the AAA for the purpose
of ascertaining the agency’s views on the application or seeking information under
ISR 12.3.c. The agency will need to disclose the information it holds about the
application, including details of the applicant and the subject to enable the AAA to
identify the case records to which the application refers and provide the intermediary
agency with the information it requires.
84. The intermediary agency may disclose information, including identifying
information, to the subject of the application as required by ISR 7.3 to provide
sufficient information to enable the subject to make an informed decision as to
whether to give consent. This information will include details of the applicant and any
other information that will assist the subject in fully understanding the nature,
circumstances and background of the application.
85. The intermediary agency may disclose information to any person or body with
whom it has made an arrangement to provide counselling on its behalf. For
counselling and support to be meaningful and beneficial, the body providing the
counselling will probably require access to some or all of the information that the
intermediary agency holds about the application. This will include any information
that the intermediary agency may have obtained from the AAA under ISR 12. It is
important that the AAA which has supplied the information is aware of the intention
of the intermediary agency to share it with another body in order for it to provide the
counselling.
86. The intermediary agency may attach conditions or restrictions on the
information it passes to the body or person providing the counselling. For example,
where counselling is being provided to the applicant, the body or person providing
that counselling must take care not to disclose any identifying information about the
subject where their consent to the disclosure has not been obtained. However,
where such consent has been obtained and the intermediary agency considers that it
is appropriate for the information to be disclosed to the applicant, the person
providing the counselling may be authorised to disclose that information on behalf of
the intermediary agency.
Offence: ISR 17
87. The inappropriate disclosure of identifying information could be distressing
and may even place individuals, including children, at risk of harm. ISR 17 therefore
makes it a criminal offence for an intermediary adoption agency to disclose any
information in contravention of ISR 7. See Annex A. The Adoption and Children Act 2002
208
Fees: ISR 18
88. An intermediary agency has the discretion to charge a reasonable fee to
cover any costs incurred in processing an application, including counselling. It may
include any costs incurred by the agency in seeking to identify the AAA, and
ascertaining the agency’s views under ISR 12, tracing the subject of the application
and seeking their consent under ISR 7. The fee may be charged to the applicant or
the subject of an application who is considering whether to give their consent to the
disclosure of identifying information under ISR 7.
89. Where the subject has requested that counselling and support be provided, it
is envisaged that any fees associated with providing the counselling would normally
be met by the applicant, as it would not be appropriate to charge the subject in
connection with a service which they did not initiate. There may be circumstances
where the subject would be prepared to meet those costs such as where the
applicant was unable to do so themselves.
90. The general expectation is that the intermediary agency would normally
provide the counselling itself, although it may choose to make an arrangement with
any of the bodies listed at ISR 10.4 to provide counselling services on its behalf.
Where the intermediary agency secures the provision of counselling by another
agency on its behalf, ISR 18.2.a permits it to charge a fee to cover any reasonable
costs it incurs in securing that provision.
91. Where the intermediary agency secures the provision of overseas counselling
for a person, ISR 18.2.b permits it to charge a fee to that person to cover any
reasonable costs it incurs in securing that provision.
92. An adoption agency may charge an intermediary agency a fee in connection
with a request under ISR 12. This will be a fee which it decides is reasonable for
providing its views on the appropriateness of an application, or for disclosing
information for the purposes set out at ISR 12.3.c.
93. The intermediary agency is obliged to pay fees charged under these
provisions, but may seek to recover these costs from the applicant as part of the
charge it may make for processing an application.Chapter 11
209
Chapter 11: Access to information in post-commencement
adoptions (post 30 December 2005)
This part of the guidance explains the legal framework for managing and
disclosing information in relation to people once they have been adopted. It
covers the information which must be kept by adoption agencies, the length of
time for which it must be kept and the circumstances in which it may be
disclosed. It also explains the procedure for dealing with applications for the
disclosure of information from adopted people, birth relatives and others. See
also chapter 6 on safeguarding adoption records and the practice guidance
Adoption: Access to Information and Intermediary Services.
The legal framework
1. Sections 56–65 of the Adoption and Children Act 2002 (the Act) and the
Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations
2005 (AIR), set out the legal framework for managing and disclosing information in
relation to adoptions which have taken place since 30 December 2005. This
framework specifies:
the information that adoption agencies must keep about a person’s
adoption;
the length of time for which it must be kept;
the information that agencies must disclose to an adopted adult on
request; and
the information that agencies may disclose to adopted people, birth
relatives and others who may apply to the agency.
The overarching aim of the framework is to ensure greater consistency in the
information that adoption agencies keep, the length of time for which it is kept and
the way in which that information is disclosed.
Adopted persons – legal rights
2. Under the Act, people adopted on or after 30 December 2005 retain the right,
on reaching age 18, to apply for the information needed to obtain a certified copy of
their birth certificate. The application for this information must be made to the
appropriate adoption agency (AAA) rather than to the Registrar General. This is
because the adoption agency is considered best placed to disclose sensitive
information, to consult interested parties and to arrange for the provision of
counselling and support. The AAA will generally be the agency that placed the child
for adoption or, if different, the agency that holds the relevant adoption case records. The Adoption and Children Act 2002
210
It may also be the local authority to which notice of intention to adopt was given.
See sections 60(2)(a) and 65(1) of the Act.
3. Section 60(2)(b) of the Act provides an adopted person, on reaching age 18,
with a right to receive from the AAA the information disclosed under section 54 of the
Act to the prospective adopters during the adoption process. This will be the
information contained in the child’s permanence report provided by virtue of
regulation 31 of the Adoption Agencies Regulations 2005 (AAR.) The child’s
permanence report will include identifying information about the child, the birth
parents, birth siblings and possibly other members of the birth family. It will also
include information about the child’s early life and family history, their social,
emotional and behavioural development and other matters.
4. On receipt of such an application, the agency will need to consider carefully
how best to disclose it since it will contain information about their early life and some
of this may be upsetting or distressing. Prior to disclosure the agency should
consider whether it would be best for the information to be disclosed in parts over
time accompanied by appropriate counselling and support. This may help lessen the
impact for the adopted person of receiving potentially distressing information about
their early life while still enabling them to fulfil their right to receive the information.
5. Section 60(4) of the Act provides that an adopted adult has the right to receive
from the court which made the adoption order, documents relating to their adoption
in so far as they do not contain any protected information. These documents are
prescribed in Rule 14.18 of the Family Procedure Rules 2010 and include the
application form for an adoption order, the adoption order itself and reports made to
the court by a children’s guardian, a local authority or an adoption agency. An
adopted person seeking this information from the court is unlikely to have access to
counselling unless this is offered by an adoption agency or an adoption support
agency.
Adoption agency responsible for keeping information: AIR 3
6. AIR 3 clarifies to which adoption agency the general duty to keep certain
information in relation to a person’s adoption will apply. Generally, the case record
for the adopted person, established under Part 3 of the Adoption Agencies
Regulations 2005 (AAR), will continue to be kept by the adoption agency that placed
the child for adoption. Where that agency has ceased to operate or exist, the agency
to which the case records are transferred must keep the information.Chapter 11
211
Information to be kept about a person’s adoption: AIR 4
7. Where an adoption order has been made by the court, AIR 4 specifies the
information that the adoption agency must continue to keep on the child’s adoption
case record. There may be some transitional cases where the child’s case record
was established under the Adoption Agencies Regulations 1983 but where the
adoption order was made after 30 December 2005, the agency is required to keep
the information prescribed by AIR 4. This is referred to as “section 56 information”
which encompasses both identifying information and background information about
the persons involved in the adoption.
8. Identifying information is “information which, whether taken on its own or
together with other information disclosed by an adoption agency, identifies the
person or enables the person to be identified” (see section 57(4) of the Act).
Identifying information kept by the agency will be wide-ranging and includes:
information about the adopted person, their birth parents and other birth
relatives, the adoptive parents and others, such as former carers,
professionals involved in assessments and social workers, and may comprise
of names, residential addresses, educational or employment addresses, legal
and medical information and photographs or audio-visual material;
information given to the agency by a birth parent or birth relative (or other
significant people in the adopted person’s life). It also covers information
obtained from the Registrar General about an adopted person’s birth record
and about an entry relating to the adopted person on the Adoption Contact
Register.
Any identifying information, and information obtained from the Registrar General
described in paragraph 4 is defined by section 57(3) of the Act as “protected
information”.
9. Background information will be information that does not identify any person
or enables them to be identified. It will include, for example:
the child’s birth details and medical history;
information about the child’s educational needs and progress;
details of any hobbies and interests; and
other contextual information. The Adoption and Children Act 2002
212
10. The agency must keep also:
any information, mementos and photographs that has been deposited by a
birth parent or relative or other significant person in the adopted person’s
life, with instructions that it is passed to the adopted person at an
appropriate time in their life.
any information supplied by the adoptive parents or other persons. This
regulation also covers information in respect of other issues that may arise
after the adoption order has been made, for example, where the adoptive
parents have contacted the agency to request an assessment for adoption
support services, including financial support.
any information that the adopted person has requested should be kept.
This might include the adopted person’s views as to the disclosure of
information about themselves or a formal expression of their wish for
contact, or no contact, with their birth parents or other birth relatives. This
regulation also covers any general correspondence that the adopted
person may have with the agency after the adoption order has been made.
any information given to the adoption agency by the Registrar General that
would enable an adopted person to obtain a certified copy of their birth
certificate. This information would be sought by the agency if it receives a
request from the adopted adult but does not hold the information. See
section 79(5) of the Act.
any information given to the adoption agency by the Registrar General
about an entry relating to the adopted person on the Adoption Contact
Register.
any information required to be recorded in accordance with AIR 10, 14 or
18.
the record of any agreement for the disclosure or non-disclosure of
protected information about an individual under AIR 11.
11. AIR 4.4 provides the agency with the discretion not to keep information
supplied under paragraph (3)(a) to (c) if it considers that it would be prejudicial to the
adopted person’s welfare to keep it or if it considers that it was not reasonably
practicable to do so. For example, the agency may decide not to keep an item
`supplied by a birth parent where it considers that the material is inappropriate or
vexatious or where it was unreasonable to expect the agency to store the item
because it was too large or too valuable. Chapter 11
213
Storage and manner of keeping of section 56 information: AIR 5
12. Any section 56 information, in whatever format it is preserved, must be kept in
secure conditions at all times, e.g. a lockable cabinet or secure room to prevent the
theft, unauthorised disclosure, loss or destruction of, or damage to, the section 56
information it holds. This applies to any section 56 information which is not kept at
the agency’s main premises, either on a temporary or permanent basis
13. There is nothing in Part 2 of AIR to prevent the agency from transferring paper
records and documents to microfiche or other electronic or digital media but it must
be confident that the information can be retrieved during the next 100 years.
Documents that are likely to be significant to the adopted person, such as reports,
cards or letters handwritten or signed by the birth parents or other birth relatives,
should always be preserved in their original format so that the adopted person can
see and handle them.
14. Where section 56 information is so transferred, the agency must ensure that
systems are in place to protect the confidentiality and integrity of this material. The
agency should not transmit section 56 information outside the agency by email or
facsimile unless its confidentiality can be assured.
15. The adoption agency should keep its security arrangements under review,
and any breaches of the security of records should be acted on promptly to prevent
any recurrence. All agency staff with responsibility for handling section 56
information should be clear as to their duty to safeguard this information at all times.
Preservation of section 56 information: AIR 6
16. All section 56 information must be kept for a minimum of 100 years from the
date of the adoption order. This duty applies to information stored in any format. See
chapter 6 for guidance on storing the case of adoption records of children who were
not adopted, or the records of prospective adopters who were not approved.
17. Where the agency wishes to destroy section 56 information after the 100 year
period, this must be treated as confidential waste and disposed of accordingly.
Records should be shredded prior to disposal. The Adoption and Children Act 2002
214
Transfer of section 56 information: AIR 7
18. Where a voluntary adoption agency (VAA) ceases to operate or exist, any
section 56 information it holds must be transferred to:
another adoption agency, having first obtained the approval of Ofsted
(the registration authority) for such transfer.
the local authority in whose area the VAA’s principal office is situated;
to the new VAA in the case of a VAA which amalgamates with another
VAA to form a new VAA.
19. The adoption agency receiving the section 56 information must give Ofsted
written notification of the transfer of records and will automatically become subject to
the duties in the AIR in respect of the safeguarding, preservation and disclosure of
that information.
20. Where a VAA transfers its records to another adoption agency it must, if its
activities were principally based within a single local authority area, notify that local
authority of the transfer. This requirement is intended to ensure that clear
signposting exists in respect of the former VAA’s case records. It is important that
former clients of a VAA that has ceased to operate are able to locate easily that
agency’s case records in the event that they wish to make an application for the
disclosure of information. This recognises that persons may seek information many
years after a VAA has ceased to exist.
Disclosure for purposes of agency’s functions or for research: AIR 8
21. AIR 8.1 provides an adoption agency with the discretion to disclose any
background information from the section 56 information it holds as it thinks fit for the
purposes of its functions.
22. The general discretion provided by this regulation may be used by the agency
to provide a range of people – such as the birth parents, other birth relatives, former
carers, or others who may have played a significant part in the child’s life – with
information about the child. Such information should only normally be shared by the
agency with the full knowledge and agreement of the adoptive parents while the
adopted person is still a child. This could be information about:
their progress within the adoptive family;
their general well-being
educational achievements or social development; Chapter 11
215
other important milestones in the child’s life, without revealing the child’s
identity or whereabouts or the identity or whereabouts of the adoptive
parents.
23. The agency could also use this discretion to provide additional information
about the child to the adoptive parents. This could be information supplied by the
birth parents or other birth relatives whom the agency considers will be beneficial to
the adoptive parents in the care and upbringing of the child. This may be particularly
relevant where the child has no contact with the birth parents or any ongoing links
with the birth family.
24. Where the agency exercises its discretion to disclose background information
to any person, it must take care to ensure that background information, disclosed in
isolation, does not identify a person when linked with other information previously
disclosed by the agency. This is one reason why the agency is required by AIR 10 to
make a written record of the disclosure of any background information by virtue of
AIR 8.1.
25. AIR 8.2.a permits an adoption agency to disclose section 56 information,
including protected information, to an adoption support agency (ASA) or an adoption
agency which provides services in connection with any of its functions under section
61 or 62 of the Act. Where an adoption agency has received an application for the
disclosure of protected information under sections 61 or 62 of the Act, and the
agency has determined to proceed with the application, it is required to take certain
steps before making a determination as to whether the information being sought
should be disclosed. These steps include seeking the views of any person the
information is about as to the disclosure of that information. This could require the
agency to engage in research work, to use the information it holds, and possibly to
gather additional information, such as purchasing certificates from the Registrar
General, to enable it to trace a person and seek their views.
26. Depending on the circumstances of each case, the adoption agency may wish
to make an arrangement with an ASA or another adoption agency to undertake this
work on its behalf. Therefore, AIR 8.2.a permits the agency to disclose its section 56
information to an ASA or an adoption agency to enable these bodies to be able to
trace a person (or persons) and seek their views on the agency’s behalf. The agency
working on behalf of the adoption agency will be able to obtain the person’s views as
to the disclosure of information about themselves and report those views back to the
original adoption agency. The responsibility for making a determination as to whether
to disclose the information being sought will remain with the adoption agency that
received the initial application.
27. Before making such an arrangement with an ASA or adoption agency, the
adoption agency must first be satisfied that the conditions of the ASA’s or VAA’s The Adoption and Children Act 2002
216
registration do not prevent it from providing such services; and that the ASA or
adoption agency has the requisite skills and experience to manage each individual
case, especially those involving difficult or complex issues.
28. The adoption agency should also seek the prior agreement of the ASA or
adoption agency providing services on its behalf that any section 56 information it
discloses will only be used for the purposes for which it was disclosed.
29. An adoption agency may disclose to a researcher authorised in writing by the
Secretary of State, section 56 information and protected information. It is for the
adoption agency to decide if it wishes to participate in any research, as the Secretary
of State cannot commit any agency to research activity. A Department for Education
civil servant, acting on behalf of the Secretary of State, will provide the written
authority for a researcher to seek the disclosure of section 56 information.
30. Before the Secretary of State’s authority is given, research proposals will be
examined carefully to assess whether the potential value of the research justifies
disclosure by the agency (or agencies). The adoption agency must also be satisfied
that the researcher will properly safeguard any section 56 information it discloses
and its confidentiality maintained. Authorised researchers should be required by the
agency to sign an undertaking to use any section 56 information only for the
purposes of the research project and that no information will be published in the
research findings that may enable any person involved in an adoption to be
identified.
Disclosure required for purposes of inquiries, inspection, etc: AIR 9
31. An adoption agency is required by AIR 9 to provide access to the section 56
information it holds or to disclose this information as may be required to the persons
or bodies listed at AIR 9.a to h. Where a request for access to, or the disclosure of,
section 56 information falls within the scope of this regulation, the agency has no
discretion to withhold the information or deny access to it. The circumstances in
which disclosure is required are set out in detail in chapter 6, as they are similar to
those prescribed in AAR 42.
Requirements relating to disclosure: AIR 10
32. The adoption agency must keep a written record of any disclosure made
under AIR 8 or 9 on the adoption case record. This record must include a description
of the information disclosed, the date on which the disclosure was made, the person
to whom the information was disclosed; and the reason for the disclosure.
33. It is important that the agency keep a detailed and accurate record of any
information disclosed to any person by virtue of AIR 8 or 9. This is particularly Chapter 11
217
important where the agency has exercised its discretion to disclose information by
virtue of AIR 8.1 or where it has entrusted protected information to an ASA or an
adoption agency under AIR 8.2. It is important that the agency is able to verify at any
given time details of the information it has previously disclosed under the AIR
Agreements for the disclosure of protected information: AIR 11
34. An increasing number of adopted children will have experienced a number of
placements during their time in care and there could be a range of people who
played in important or stable role in the child’s life prior to their adoption. A formal
agreement in accordance with this regulation would enable any of those persons
formally to register their views as to the disclosure of protected information about
themselves at some future time. In the event that the adopted person applied to the
agency for the disclosure of protected information about that person, the agency
would not be required to take the steps at section 61(3) of the Act to seek that
person’s views, as their prior agreement to the disclosure of the information had
already been given. Such an agreement is not intended to override or limit the
sharing of information as part of the life story work for the adopted child. Every child
has a right to full information in their life story book, and this will include identifying
information about a range of people in their life prior to their adoption.
35. Formal agreements for the sharing of protected information between the
agency, the adopters and the birth parents are likely to be rare. The majority of
children being placed for adoption will have been the subject of care proceedings,
and it is not uncommon for one or both of the birth parents to be hostile to the plan
for adoption. However, where an agreement is being contemplated the agency must
be satisfied that all parties are fully aware of the implications of entering into such an
agreement and its effect. The agency must provide information about the availability
of counselling and any fees that may apply, to any person who is considering
entering into an agreement. Before making the agreement, the agency must also be
satisfied that it is beneficial to the child’s welfare and best interests.
36. AIR 11 does not impose a specific duty on the agency to review the
agreement. However, where a person’s views change or where the agency becomes
aware of a change of circumstances of any of the parties it should consider the
continuing validity of the agreement and, in consultation with those who are party to
the agreement, amend or withdraw it. As the adopted child grows older, the agency
should also consider if the agreement continues to meet their needs. The agency
may consult the child about this where it considers they are of sufficient age and
understanding. The Adoption and Children Act 2002
218
Manner of application for disclosure of protected information: AIR 12
37. Any application to an adoption agency for the disclosure of protected
information under sections 61 or 62 of the Act must be made in writing and state the
reasons for the application. It is important that the application contains sufficient
information to enable the agency to make an initial assessment of the merits of
application and to locate and retrieve the records to which the application relates.
This is particularly important where the agency holds large numbers of adoption
records, some of which may have been inherited from other adoption agencies that
have ceased to exist or operate.
38. Where the applicant is the adopted person, the following details should be
provided in the application:
current (and any previous) forename(s) and surname;
name on adoption (if different from current name);
date of birth;
full names of adoptive parent(s);
name at birth/prior to adoption (if known);
date of adoption (if known).
39. Where the application is from a birth relative of an adopted person or from any
other person:
current forenames(s) and surname;
name of adopted person (if known);
original birth name of adopted person;
relationship to adopted person (if a birth relative);
date of adoption (if known).
40. There is nothing in AIR 12 to prevent a person from registering their intention
to apply to the agency for the disclosure of information by other means (e.g. by
telephone, email or via the agency’s website). But the formal application to the
agency must be made in writing - which may include email - and must include the
information listed above so as to enable the agency to properly discharge its duties
under AIR 13. In addition to the information listed above, the applicant should also Chapter 11
219
Application for disclosure of
protected information
AIR 12
Duties of adoption agency on
receipt of application
AIR 13
Information about adult
Section 61 applies
Information about child
Section 62 applies
Proceed?
Section 61(5)
Proceed?
Section 62(6)
and (7)
No – Notify
Applicant
Section 61(2)
AIR 15
No – Notify
Applicant
Section 62(2)
Independent Review
AIR 15
AGENCY DETERMINES TO
PROCEED WITH APPLICATION
ADULT (Section 61)
Seek and record views
Provide counselling
Section 61(3)
AIR 14 and 17
CHILD (Section 62)
Seek and record views
Provide counselling
Section 62(3) and (4)
AIR 14 and 17
Disclose Information?
Section 61(4)
Disclose Information?
Section 62(5)
Disclose in accordance
with views obtained
Disclose contrary to
views obtained
Withhold disclosure
contrary to views
obtained
Disclose in accordance
with views obtained
Disclose contrary to
views obtained
Withhold disclosure
contrary to views
obtained
PROCESSING APPLICATIONSThe Adoption and Children Act 2002
220
provide brief reasons for making the application. Where the applicant does not
provide sufficient information, the agency should seek any additional information it
needs from them before making a determination as to whether to proceed with the
application.
Duties of agency on receipt of application, and record of views: AIR 13
and14
41. It is ultimately for the agency to determine whether to disclose protected
information to a person who requests it. In making that decision the agency is
required under the Act to take steps to seek the views of the subject of the
information (or the parent or guardian if that person is a child) and weigh these up
against the welfare of the adopted person and all the other circumstances of the
case. Where the information is about a child, the agency must have particular
regard to the child’s welfare – for an adopted child this must be the paramount
consideration.
42. Adoption records, like other records, are subject to the provisions of the Data
Protection Act 1998 (apart from the subject access provisions, see chapter 10). So
where it is a question of the possible disclosure of ‘third party’ information, such as
identifying information about members of the birth family or former foster carers, the
agency must not only act in accordance with sections 61 and 62 of the Act, but also
in accordance with the principles of the Data Protection Act. There is some overlap
between what is required under the Act and the DPA. Third party information is a
complex area and sometimes third party information may also be relevant to the
adopted person, for example, in relation to health issues. In addition, the agency
should consider whether information is already known or would be available from
other sources, e.g. Public Records.
.
43. What is important is that both the Act and the Data Protection Act require the
agency to carry out a balancing exercise between the rights of the person requesting
disclosure and those of the person to whom the requested information relates to in
considering the overall fairness of disclosure. The agency in exercising its discretion
will need to take account of the context and all the circumstances of the case. It is
important that the reasoning behind any decision as to disclosure is fully recorded.
Disclosing protected information about adults (section 61)
44. When a person (whether an adopted person or a birth relative or other person
with an interest) applies to the AAA for the disclosure of protected information none
of which involves a child, the agency has to decide whether to proceed with the
application. Before doing so, the agency must take reasonable steps to verify the
identity of the applicant (or of any person acting on the applicant’s behalf). This
would include meeting the applicant (and their representative) and verifying their Chapter 11
221
identity against the evidence they produce. The agency may request any additional
documentation it considers necessary such as a passport, driver’s licence or a
certified copy of a birth certificate or adoption certificate. See the practice guidance
Adoption: Access to Information and Intermediary Services.
45. A person who is unable to submit an application, for example, because of
physical or mental incapacity, may authorise a person to make an application on
their behalf. AIR 13.b requires the adoption agency to be satisfied that the person
acting on behalf of the applicant has their authority to do so.
46. The agency is not required to proceed with an application unless it considers
it appropriate. In reaching this decision, the agency’s decision maker must consider
the matters set out at section 61(5) of the Act. The decision maker may determine
not to proceed with the application where, for example, it has information to indicate
that doing so could be harmful to the welfare of the adopted person.
47. Where the agency does proceed with the application, it is required by section
61(3) of the Act to take all reasonable steps to obtain the views of the subject of that
information as to the disclosure of that information.
48. Where a person cannot be traced and their views ascertained, the agency
may apply to the Registrar General for any information he may hold about them on
the Adoption Contact Register, see AIR 20.1.b. Where there is an entry for the
person on the Adoption Contact Register this may contain information, such as
whether the person would not welcome contact or where contact is welcome, their
most recent address. It is important to bear in mind that the individual may amend
their entry on the Adoption Contact Register and the Registrar General is not
required to inform the agency if this occurs. Therefore, any information previously
obtained by the agency may not be up to date. To overcome this, the applicant may
wish to register their own wishes on the Adoption Contact Register.
49. The agency may also use information from an entry on the Adoption Contact
Register to help inform its discretion as to whether or not to disclose protected
information about the individual to whom the entry relates. Where the agency cannot
trace an individual to seek their views as to the disclosure of information, but that
person has registered a wish for contact with the applicant on the Adoption Contact
Register, the agency may determine to disclose the protected information to the
applicant if it considers it safe and appropriate to do so. Similarly, the agency may
determine not to disclose the information where the person has registered a wish for
no contact with the applicant on the Adoption Contact Register.
50. Where the agency has been able to trace the subject the agency must ensure
that those views are recorded in writing and retained by the agency on the adoption
case record. The recording of the subject’s views by the agency should make it The Adoption and Children Act 2002
222
clear, as far as possible, whether the subject has indicated their agreement or
objection to the disclosure of protected information about themselves.
51. In determining if it is appropriate to disclose the information, the agency must
consider:
the welfare of the adopted person;
the views of any person to whom the information relates; and
all the other circumstances of the case.
52. The agency’s decision-maker therefore has the discretion to determine
whether it will disclose or withhold protected information on the grounds that it was in
the interests of the adopted person’s welfare, contrary to the views expressed by the
person the information is about. This discretion may come into play where, for
example, one of the birth parents agrees to the disclosure of protected information
but the other does not.
Disclosing protected information about children (Section 62)
53. Where a person applies to the AAA for the disclosure of protected information,
(see the practice guidance Adoption: Access to Information and Intermediary
Services paragraphs 61-74 chapter 7), and any of that information is about a child,
the agency again has the discretion not to proceed with the application unless it
considers it appropriate to do so. Where the agency determines to proceed with the
application it must first take all reasonable steps to obtain the views of any parent or
guardian of the child, and the child, if the agency considers it appropriate having
regard to their age and understanding, as to the disclosure of the information.
54. Therefore, where the information concerns an adopted child, the agency must
take steps to seek the views of the adoptive parents. Where a person applies to the
agency for information that identifies both an adult and an adopted child, the agency
must also take reasonable steps to obtain the views of the adult as to the disclosure
of that information. However, notwithstanding those views, the adopted child’s
welfare must continue to be the agency’s paramount consideration in deciding
whether to disclose the information.
55. The agency may then disclose the information if it considers it appropriate to
do so. In deciding if it is appropriate to disclose the information where any of the
information is about a child:
if the child is an adopted child, their welfare must be the paramount
consideration;
in the case of any other child, the agency must have particular regard to
their welfare. Chapter 11
223
56. The agency must also consider:
the welfare of the adopted person (where the adopted person is not a
child)
any views obtained, including the views of any parent or guardian of the
child (and the views of the child if appropriate);
all the other circumstances of the case.
57. Although the adoption agency has the discretion to disclose protected
information if it considers it appropriate to do so, its discretion is more limited where
that information concerns a child. Protected information will only normally be
disclosed where the agency is satisfied that it is in the interests of the child’s welfare
to make the disclosure.
58. Any decision made is not a qualifying determination as defined in AIR 15 and
thus there is no right to request an independent review.
Independent review: AIR 15
59. When the agency’s decision-maker makes a qualifying determination, i.e.:
not to proceed with an application from any person for disclosure of
protected information
to disclose information against the express views of the person the
information is about
not to disclose information about a person to the applicant where that
person has expressed the view that the information should be disclosed
in relation to an application under section 61 of the Act, the agency must notify the
relevant person in writing, clearly stating the reasons for reaching the determination.
The notification must also advise the relevant person of their right to apply to the
Secretary of State for a review of the agency’s determination by an independent
review panel. The notification must be clear that any application for an independent
review must be submitted within 40 working days of the date on which the agency’s
notification was sent. See chapter 1 for information on the independent review
mechanism (IRM).
60. The agency must note the applicant’s file and take no action with its original
determination until after the 40 working day period for applying to the IRM has
expired or until the independent review panel has made its recommendation. The Adoption and Children Act 2002
224
61. Where no application for a review by an independent review panel has been made
the agency may proceed with its decision. It must notify the relevant person in writing of its
decision together with the reasons for that decision.
62. On receipt of the review panel’s recommendation and minutes of the meeting,
the agency’s decision-maker must take into account the recommendation before
coming to a decision. Once the decision is made, it must be notified to the relevant
person in writing clearly stating the reasons for reaching the decision.
Counselling: AIR 16 and 17
63. The agency has a duty to provide written information on the availability of
counselling, but there is no legal requirement for a person to receive counselling
before the agency discloses information to them under sections 60-62 of the Act.
However, the valuable role that counselling can play is well established. Chapter 12
provides guidance on who should be offered counselling and which body can provide
counselling services.
Disclosure of information for the purposes of counselling: AIR 18
64. The adoption agency may disclose section 56 information, including protected
information, to any person or body with whom it has made an arrangement to
provide counselling on its behalf. This will apply where the agency has made an
arrangement with another adoption agency or ASA, to provide specialist support and
advice on its behalf. For the adoption agency or ASA to provide counselling, support
and advice, which is meaningful and beneficial to the recipient, it will require access
to the section 56 information held by the adoption agency.
65. It is anticipated that the agency will normally give the person or agency
providing the counselling and support unrestricted access to the section 56
information it holds. This would enable the person providing the counselling to
consider fully the circumstances of each case before deciding the information that
would be of most value in providing the counselling.
66. The agency may attach conditions or restrictions on the information that may
be disclosed by the person or body providing the counselling. Sections 61 and 62 of
the Act require the adoption agency to make the determination as to whether to
disclose protected information to the applicant. However, in circumstances where the
agency had already determined that the disclosure of protected information was
appropriate, it may give the agency providing the counselling permission to disclose
the information on its behalf in the course of counselling. The counselling agency
may only disclose protected information on the adoption agency’s behalf with the
express permission of that agency. Chapter 11
225
67. The agency must keep a written record on the adoption case record of any
information it discloses to a person outside the agency for the purposes of providing
counselling on the agency’s behalf. This written record must include details of the
information disclosed, the date on which it was disclosed, the person or body to
whom it was disclosed and any conditions or restrictions attached to the disclosure.
Where the adoption agency has authorised the body providing the counselling to
disclose protected information on its behalf, this should be made clear in the written
record made under this regulation.
Seeking information from the Registrar General: AIR 19
68. Section 60(2) of the Act provides that an adopted person, on reaching age 18,
has the right to receive from the AAA any information which would enable them to
obtain a certified copy of their birth certificate. It also provides an adopted person
with the right to receive certain information disclosed to the adopters by the agency
by virtue of section 54 of the Act.
69. Where an adopted adult applies to the AAA for the information they need to
obtain a certified copy of their birth certificate but the agency does not hold this
information, it must apply to the Registrar General for this information on the adopted
person’s behalf. The Registrar General must give this information to the agency to
pass on to the adopted adult – see section 79(5) of the Act.
70. There is, however, a caveat. If the agency decides that the information that an
adopted adult needs to obtain a certified copy of their birth certificate should be
withheld, it must apply to the High Court for an order denying the adopted person
access to this information, see section 60(2)(a). The Court will only grant an order
allowing the agency to withhold the information if it is satisfied that the circumstances
are exceptional. This provides for those very unusual circumstances where the
agency has grounds to believe that disclosing birth record information to the adopted
person could place others at risk of harm.
Disclosure of information regarding the appropriate adoption agency
and from the Adoption Contact Register: AIR 20
71. Under the disclosure regime in sections 56-65 of the Act, the adoption agency
is the main gateway for access to information, including birth record information. A
person adopted on or after 30 December 2005 no longer has the direct route of
access to the Registrar General for the information they need to obtain a certified
copy of their birth certificate.
72. Where any person (including an adopted person) wishes to apply to the
adoption agency for the disclosure of information but does not know to which agency
to apply, they may apply to the Registrar General for the information they need to The Adoption and Children Act 2002
226
make contact with the AAA. Where any person applies to the Registrar General for
this information, AIR 20.1.a requires him to disclose this information to them.
73. The Registrar General may charge a fee for disclosing information from the
Adoption Contact Register and has discretion whether to charge a fee, particularly
for providing information to VAA.
Offence: AIR 21
74. The inappropriate disclosure of protected information could be distressing and
may even place individuals, including children, at risk of harm. AIR 21 therefore
makes it a criminal offence for a voluntary adoption agency to disclose any
information in contravention of section 57 of the Act. See Annex A.
Fees charged by adoption agencies: AIR 22
75. The Act and the AIR make provision for the charging of fees by
adoption agencies in connection with the disclosure of information and the provision
of counselling. An adoption agency has the discretion to charge a fee to any person
to cover any reasonable costs incurred in processing an application for the
disclosure of information and the provision of counselling, or to waive its fees in
whole or in part where, for example, the person seeking the disclosure of information
has a limited ability to pay.
76. The exception to this is that no fee may be charged to an adopted person in
respect of any information disclosed to them about a birth relative or counselling
given in connection with that disclosure. See section 64(5) of the Act and AIR 22.
Giving agencies the discretion to charge a fee recognises the additional work that
they are required to undertake by sections 61 and 62 of the Act, including the
requirement to seek the views of any person who may be identified by the disclosure
of protected information.
77. It is important that potential service users are made aware of any fees that
may apply before the agency agrees to process their application. The agency should
make it clear that any fee charged will be limited to covering the costs it incurs in
processing an application. This could include any costs incurred in tracing an
individual to seek their views, gathering additional information where the agency
records do not enable it to trace an individual, and the provision of counselling.
Where the agency publishes a schedule of fees it must ensure that this is regularly
updated, and made available to any person who applies for the disclosure of
information under sections 61 or 62 of the Act. Chapter 12
227
Chapter 12: Post adoption counselling and Adopted Children and
Adoption Contact Registers
This part of the guidance gives guidance on the duties of agencies in respect
of counselling for those seeking intermediary services or access to
information after adoption and explains the Registrar General’s role in
provision of the Adopted Children and Adoption Contact Registers. See also
chapters 10 and 11.
Counselling
1. The Adoption Information and Intermediary Services (Pre-Commencement
Adoptions) Regulations 2005 (ISR) and the Disclosure of Adoption Information (PostCommencement Adoptions) Regulations 2005 (AIR) recognise the important role
that counselling, support and advice can play both for the applicant and the subject
of the application. In the context of intermediary services, it may help the applicant
prepare for the process of tracing a birth relative from whom they may have been
separated for many years. It will also help them to prepare for positive and negative
outcomes, such as feelings of loss or rejection that may arise where the subject has
no wish for contact or has died. In the context of both intermediary services and the
disclosure of information, counselling is likely to be needed to help the applicant
understand the context in which decisions were made affecting them, and to provide
support where the information disclosed is distressing. The subject may also need
careful support in reaching their decision as to whether to give their consent to the
disclosure of identifying (or protected) information, and understanding the
implications of their decision.
2. ISR 10.1 and AIR 16 require the intermediary agency/adoption agency (the
agency) to provide written information about the availability of counselling to any
person who makes an application to the agency or to any person who is the subject
of an application and is considering whether to give their consent to the disclosure of
identifying (or protected) information. The information must include details of the
persons or bodies offering the counselling and any fees that may apply. The agency
may provide the counselling itself, or make an arrangement with one of the bodies
listed at paragraph 6 to provide the counselling or specialist support on its behalf.
Agencies have discretion to charge a fee for counselling they themselves provide.
However, AIR 22 prohibits the charging of a fee in respect of any counselling
provided to an adopted person in connection with the disclosure of any information
given to them under sections 60-62 of the Adoption and Children Act 2002 (the Act)
in relation to any relative of theirs or in connection with any such disclosure.
3. In the case of proposed agreements for the sharing of protected information
under AIR 11, the agency is also required by AIR 16 to provide written information The Adoption and Children Act 2002
228
about the availability of counselling to any person who enters into, or is considering
entering into, such an agreement with the agency. Where the agency is considering
setting up an agreement for the sharing of protected information, it is essential that
any person who is considering being party to the agreement fully understands it
effect, the information that may be shared under the agreement and the implications
of their decision.
4. There is no legal requirement for a person to accept counselling or to receive
any other form of support and advice before the agency discloses information to
them under sections 60-62 of the Act or provides an intermediary service. In respect
of people adopted before 12 November 1975 they will have been required to receive
counselling before being given information enabling them to obtain their birth
certificate. However, experience has shown that counselling and support has real
value in helping adopted persons, birth parents, birth relatives and others come to
terms with the disclosure of sensitive information about themselves and their past,
particularly where this has involved severe disruption or trauma. The agency should
explain to both the applicant and the subject of the application the benefits of
counselling, any fees that may apply and give assurance that the agency will secure
counselling on request (see ISR 10.3 and AIR 17). A refusal by the applicant to
receive initial counselling and support, particularly in complex cases, could be one of
the factors that informs the exercise of the agency’s discretion as to whether or not
to proceed with their application.
5. Where the applicant or the subject has complex support needs which an
agency considers it cannot meet, they may be referred to their local authority for an
assessment of their need for adoption support services under the Adoption Support
Services Regulations 2005.
6. The agency may provide the counselling itself or from one of the following
bodies depending on where the person lives (see ISR 10 and AIR 17):
in England or Wales, another adoption agency or an adoption support
agency (ASA);
in Scotland, a Scottish adoption agency. This could be a local authority or
a voluntary organisation registered to provide that service.
in Northern Ireland, an adoption society which is registered under Article 4
of the Adoption (Northern Ireland) Order 1987 or any Board. AIR 17.3
defines a “Board” for this purpose as being a Health and Social Services
Board or, where the functions of a board are exercisable by a Health and
Social Services Trust, that Trust.
outside the United Kingdom, any person or body outside the United Chapter 12
229
Kingdom who appears to the agency to correspond in its functions to a
body mentioned in paragraphs (a) to (c), ie possesses the requisite
qualifications, skills and experience to provide the counselling service. A
list of approved overseas counselling providers is maintained by the
Registrar General.
7. Where the agency makes an arrangement with an ASA or voluntary adoption
agency (VAA) under ISR 10.4.a or AIR 17.2.a above, it must be satisfied that the
agency’s conditions of registration allow it to provide counselling services. If
necessary, the agency may verify the ASA or VAA’s conditions of registration with
Ofsted, the registration authority. The agency should also be satisfied that the
agency providing the counselling possesses the necessary skills and experience,
especially in cases involving particularly complex issues.
Disclosure of information for the purposes of counselling: AIR 18 and
ISR 16
8. The agency may disclose information, including protected information, to any
person or body with whom it has made an arrangement to provide counselling on its
behalf.
The Adopted Children and Adoption Contact Registers
9. An adoption order gives a child a new identity (although there is no obligation
for the child to be known by a new name) and the entry made by the Registrar
General for England and Wales in the Adopted Children Register will be evidence of
that identity and the legal parenthood of the adoptive parents. A certified copy of an
entry in the Adopted Children Register (adoption certificate) replaces the birth
certificate for adopted people.
10. The Adopted Children Register shows the link between the pre- and postadoption identity of an adopted person. This register is not accessible to public
inspection, and information from it can only be disclosed in the circumstances set out
in section 79 of the Act, or, for those adopted before 30 December 2005, Schedule 2
of the Act.
11. The Registrar General may make an entry in the Adopted Children Register
where a child has been adopted under a Convention adoption or an overseas
adoption, provided he has sufficient particulars, and provided that the adoptive
parent (or parents in the case of a joint adoption) is at the time of the adoption
habitually resident in England or Wales. See Schedule 1, paragraph 3 to the Act and
regulation 3 of the Adopted Children and Contact Registers Regulations 2005The Adoption and Children Act 2002
230
12. The Registrar General runs the Adoption Contact Register, which puts
adopted people and their adult birth relatives in touch with each other, if that is what
they both want. The onus remains on the adopted person to take the first steps to
make actual contact. The Registrar General may disclose information from the
Adopted Children Register and the Adoption Contact Register to the adopted adult in
order to obtain a certified copy of their birth certificate and to an intermediary agency
to help find adopted adults or adult birth relatives – see chapters 10 and 11.
13. The Adopted Children and Contact Registers Regulations 2005 contain
further details about the responsibilities and powers of the Registrar General in
respect of both registers, as well as about their content and the requirements for
applications to obtain information from the registers.Annex A
231
Offences – since 30 December 2005
Below is a summary of the offences and the time limit within which proceedings may
be brought.
Time period within which proceedings may be brought
1. Although offences under sections 9, 59, 93, 94 and 95 of the Adoption and
Children Act 2002 (the Act) are summary offences, section 138 of the Act
extends the normal time limits. Proceedings for these offences may not be
brought more than six years after the commission of the offence but subject to
that may be brought within a period of six months from the date on which
evidence sufficient in the opinion of the prosecutor to warrant the proceedings
came to their knowledge. Aside from this, the normal time limits for summary
offences (six months from the commission of the offence) apply to summary
offences under the Act. Certain of the offences under the Act are triable
either way (e.g. sections 83 and 85) and may therefore be tried on indictment
without time limit.
Arranging adoptions: section 92
2. Generally, only adoption agencies and persons acting in pursuance of a High
Court order may take the steps specified in relation to the adoption of
children. Where stipulated below, certain individuals are exempted from this
general restriction. An adoption agency is a local authority or a registered
adoption society, known also a voluntary adoption agency.
3. The steps are:
a. Asking a person other than an adoption agency to provide a child for
adoption. For example, a birth parent or a third party is asked to
supply a child.
b. Asking a person other than an adoption agency to provide prospective
adopters for a child. For example, where the birth parent approaches a
third party, such as an intermediary, and asks them to provide adopters
for their child.
c. Offering to find a child for adoption. For example, where X approaches
Y and suggests that X can locate a child for Y to adopt.
d. Offering a child for adoption to a person other than to an adoption
agency. This would be where X, a parent of a child or an intermediary,
who has already identified a child who could be adopted makes a direct The Adoption and Children Act 2002
232
proposal about them to Y.
e. Handing over a child to any person other than to an adoption agency
with a view to the child’s adoption by the person who receives them or
by someone else. For example, it would be where X takes and gives
the child to Y for adoption, or X takes and gives the child to Z, so that Z
can hand the child over to Y.
f. Receiving a child for the purpose of adoption in contravention of subparagraph (e). This would catch Y for taking the child from either X or
Z. It would also catch Z for receiving a child from X to hand the child
over to Y.
g. Entering into an agreement with any person for the adoption of a child,
or for the purpose of facilitating the adoption of a child, where no
adoption agency is acting on behalf of the child in the adoption. For
example, this would catch both X and Y in their agreement for the
adoption of the child by Y and it may also catch Z for helping to
facilitate this arrangement under sub-paragraph (e) or in any other way
that Z assists X and Y in the adoption of the child. “Agreement”
includes an arrangement whether or not enforceable.
h. Initiating or taking part in negotiations of which the purpose is the
conclusion of an agreement within sub-paragraph (g) for the adoption
of a child, or an agreement to facilitate the adoption of a child. In the
example of X and Y it would also catch W who has no other role in the
illicit adoption but does open up negotiations between X and Y by
introducing them to each other for this purpose. Another example is V
who participates in the negotiations, perhaps in a mediating role.
i. Causing another person to take any of the steps mentioned in subparagraphs (a)-(h). This final step makes it clear that although a person
may not have taken any of the steps in sub-paragraphs (a)-(h), that
person commits an offence if they induce any other person to do so.
People who may also arrange adoptions
4. Paragraph 1 does not apply to a person taking any of the steps in subparagraphs (d), (e), (g)-(i) if the prospective adopters are parents, relatives or
guardians of the child (or one of them is), or the partner of a parent of the
child. Section 144(1) of the Act defines “relative” in relation to a child as a
grandparent, brother, sister, uncle or aunt, whether of the full blood of half
blood or by marriage, or civil partnership.
Annex A
233
Offence
5. An offence will be committed if a person takes any of the steps above in
contravention of section 92(1). Where section 92(1) is contravened by an
adoption society, (i.e. because it is not registered) then the person who
manages the adoption society will also be guilty of the offence.
Penalty: section 93
6. Liable on summary conviction, to a term of imprisonment not exceeding six
months and/or a fine not exceeding £10,000.
Preparation of reports: section 94
7. The Restrictions on the Preparation of Adoption Reports Regulations 2005
prescribes those persons who may prepare or supervise the preparation of
adoption reports for the purposes of section 94 of the Act. In summary they
must be registered and properly experienced and properly supervised social
workers employed by, or acting on behalf of, an adoption agency, or a student
training to become a social worker who is employed by, or placed with, an
adoption agency, and supervised by a properly experienced social worker
employed by the adoption agency.
8. These restrictions apply in the following circumstances:
a. Preparing a report about whether a child should be placed for adoption
(child’s permanence report)
b. Preparing a report about the suitability of a prospective adopter to
adopt a child (prospective adopter’s report).
c. Preparing a report about whether a child should be placed for adoption
with a particular prospective adopter (adoption placement report).
d. Preparing a report of a visit to a child after they have been placed for
adoption.
e. Preparing a report of a visit or review of an adoption placement where a
child has been brought into the country for adoption.
f. Preparing a report of a review of a child's case where an intercountry
prospective adopter fails to make an application to the court for an
adoption order within two years of notifying the local authority of their
intention to adopt the child.
g. Preparing a pre-adoption report for a relevant authority in the child’s
State of origin of an intercountry adoption placement (otherwise than in
accordance with the Adoption Agencies Regulations 2005 (AAR) or
corresponding Welsh provision).
h. Preparing a post-adoption report for a relevant authority in the child’s The Adoption and Children Act 2002
234
State of origin following the adoption of the child (otherwise than in
accordance with the AAR or corresponding Welsh provision).
i. Preparing a report for the court in accordance with section 43 (reports
in adoption agency cases) or section 44(5) (reports in non-agency
cases) of the Act.
j. Preparing a report for the court considering the making of an order
under section 84 of the Act giving parental responsibility prior to the
child being adopted abroad.
Offence
9. An offence will be committed if a person contravenes section 94 of the Act or
causes a person to prepare a report, or submits to any person a report which
has been prepared in contravention of section 94.
10. It is also an offence to prepare, cause to be prepared or submit a report
prepared in contravention of section 94 of the Act.
Penalty
11. Liable on summary conviction, to a term of imprisonment not exceeding six
months and/or a fine not exceeding level 5 on the standard scale.
Payments: section 95
12. It is a principle of the conventions relating to adoption to which the United
Kingdom is a signatory that there should be no trade or traffic in children and no
improper financial gains in the adoption process. Section 95 therefore prohibits
various payments in connections with adoption; and section 2 requires
registered adoption societies to operate on a not-for-profit basis. However,
certain payments made to an adoption agency are excepted under section 96 of
the Act. Annex A
235
Offence
13. The offences are: to make, offer or receive payments for or in consideration of:
a. the adoption of a child;
b. giving consent to adoption;
c. the removal from the United Kingdom of a child who is a
Commonwealth citizen, or is habitually resident in the United Kingdom,
to a place outside the British Islands for the purpose of adoption.
d. a person taking any of the steps set out in paragraph 2(a) – (i) above
in contravention of section 92(1);
e. preparing a report in contravention of section 94(1)
Penalty
14. Liable on summary conviction to a term of imprisonment not exceeding six
months and/or a fine not exceeding £10,000.
Advertising: section 123
15. Under section 123 certain advertisements or information about adoption that
may only be published or distributed by or on behalf of an adoption agency.
Offence
16. An offence will have been committed where:
a. there is an advertisement indicating thati. the parent or guardian of the child wants the child to be adopted,
ii. a person wants to adopt a child,
iii. a person is willing to take any steps in paragraph 2(a)-(e), (g)
and (i) and that person is not an adoption agency,
iv. a person is willing to receive a child handed over to them with a
view to the child being adopted by them or another person, and
the person is not an adoption agency,
v. a person is willing to remove a child from the UK for the
purposes of adoption.
b. Information is provided on how to do anything which would constitute
an offence under certain provisions of the Act, the Adoption (Scotland)
Act 1978 or the Adoption (Northern Ireland) Order 1987.The Adoption and Children Act 2002
236
c. information about a particular child as a child available for adoption
other than through an adoption agency.
Penalty: section 124
17. Liable on summary conviction, a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Restriction on bringing children into the UK: section 83
18. Section 83 of the Act applies where a person is habitually resident in the
British Islands and brings a child into the UK for the purposes of adoption or
having adopted the child outside the UK within the previous 12 months. This
does not apply if the child has been, or is intended to be adopted under the
1993 Hague Convention on Protection of Children and Co-operation in
respect of Intercountry Adoption (Hague Convention). But regulation 59 of the
Adoptions with a Foreign Element Regulations 2005 imposes other offences
in relation to Convention adoptions. Before a person may bring a child into
the UK, they must be assessed and approved as suitable to adopt by a UK
adoption agency, and comply with the other relevant requirements of the
Adoptions with a Foreign Element Regulations 2005.
Offence: section 83(7)
19. An offence would be committed if a person brings, or causes another to bring,
a child into the UK and:
a. they have not been assessed and approved as suitable to adopt by a
UK adoption agency; or
b. they have not met any condition required by the Adoptions with a
Foreign Element Regulations 2005
Penalty
20. Liable on summary conviction to imprisonment for a term not exceeding six
months, and/or a fine not exceeding the statutory maximum.
21. On conviction on indictment, to imprisonment for a term not exceeding twelve
months, and/or a fine. Annex A
237
Taking a child abroad for adoption: section 85
22. Children who are Commonwealth citizens or who are habitually resident in the
UK cannot be removed from the UK to a place outside the British Islands for
the purposes of adoption. The exception is where a court has made an order
giving the prospective adopter parental responsibility for the child under
section 84 of the Act (or authority is given under the relevant Scottish or
Northern Irish legislation).
Offence
23. An offence would be committed:
a. if a child is removed from the UK without a parental responsibility order
(or authority given under the relevant Scottish or Northern Irish
legislation);
b. a person makes arrangements to remove a child without a parental
responsibility order (or authority given under the relevant Scottish or
Northern Irish legislation) including those where they
i. enter into an arrangement for the purpose of facilitating the
removal of the child;
ii. initiate or take part in any negotiations of which the purpose is the
conclusion of an arrangement with sub-paragraph (i), or
iii. causes another person to take any step mentioned in subparagraph (i) or (ii).
Penalty
24. Liable on summary conviction, to a term of imprisonment not exceeding six
months and/or a fine not exceeding the statutory maximum. On conviction on
indictment, to a term of imprisonment not exceeding twelve months, and/or a
fine.
Inspection of premises: section 15
25. This section provides for a person authorised by the appropriate Minister to:
i. inspect premises in which a child who has been placed for adoption is
living or, in which a child in respect of whom a notice of intention to adopt
is living; and
ii. inspect any records relating to the discharge of an adoption agency’s
functions, as specified by the Minister.The Adoption and Children Act 2002
238
Offence
26. An offence would be committed if any person intentionally obstructed another
in the exercise of any of the powers under section 15 (including the powers of
entry).
Penalty
27. Liable on summary conviction, to a fine not exceeding level 3 on the standard
scale.
Prohibitions on removal of child from prospective adopters or local
authority/agency accommodation: section 30
28. Where a child has been placed for adoption with parental consent or the child
has not been placed but there is such consent, only the adoption agency or a
person with leave of the court may remove the child. Where a child has not
been placed but there is a placement order application pending, only the local
authority or a person who has leave of the court may remove the child.
Offence
29. An offence would be committed if an unauthorised person removed the child
from the prospective adopter or accommodation provided .by the local
authority or adoption agency, respectively.
Penalty
30. Liable on summary conviction, to a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Recovery by parent where child not placed or is a baby: section 31
Child placed for adoption without authority or a baby
31. If the child’s parent or guardian informs the agency that they wish the child or
baby to be returned to them the prospective adopter must return the child to
the agency within seven days unless an application is, or has been, made for
a placement order and the application has not been disposed of. Annex A
239
Offence
32. An offence would be committed if the prospective adopter fails to return the
child within seven days to the adoption agency.
Penalty
33. Liable on summary conviction, to a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Recovery by parent where child placed and consent withdrawn: section
32
34. If the child’s parent or guardian informs the agency that they wish the child to
be returned, the prospective adopter must return the child to the agency within
14 days unless an application is, or has been, made for a placement order
and the application has not been disposed of.(or an application for an
adoption or special guardianship order is pending).
Offence
35. An offence would be committed if the prospective adopter fails to return the
child within 14 days to the adoption agency.
Penalty
36. Liable on summary conviction, to a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Recovery by parent where child placed with parental consent and
placement order refused: section 33
37. If the child’s parent or guardian informs the agency that they wish the child to
be returned to them the prospective adopter must return the child to the
agency on a date determined by the court.
Offence
38. An offence would be committed if the prospective adopter fails to return the
child by the set date to the local authority.
Penalty
39. Liable on summary conviction, to a term of imprisonment not exceeding three The Adoption and Children Act 2002
240
months and/or a fine not exceeding level 5 on the standard scale.
Placement orders - prohibition on removal: section 34
40. Where a placement order is in force or has been revoked, but the child has
not been returned by the prospective adopter or remains in accommodation
provided by the local authority, the child may only be removed by the local
authority.
41. Where the court has revoked a placement order and determines that the child
is not to remain with the prospective adopter, they must return the child to the
local authority within the period determined by the court.
Offence
42. An offence would be committed if:
a person other than the local authority removed the child from the
prospective adopter;
the prospective adopter fails to return the child by the set date to the local
authority.
Penalty
43. Liable on summary conviction, to a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Return of child in other cases: section 35
44. Where an adoption agency considers that a child should not remain with the
prospective adopter, the agency can give notice to them to return the child
Offence
45. An offence would be committed if the prospective adopter fails to return the
child within seven days of receiving notice from the agency. . Annex A
241
Penalty
46. Liable on summary conviction, to a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Restrictions on removal of child in non-agency cases: sections 36-40
47. A child may only be removed from the home of the persons who have applied
for an adoption order, have given notice of their intention to adopt, or have
applied for leave to apply for an adoption order, and the applications have not
been disposed of, i.e. where removed:
(a) with the court’s leave;
(b) by a local authority (sections 37-40);
(c) by a person with parental responsibility for the child (section 38(5)); or
(d) a parent or guardian (section 39(3)).
Offence
48. An offence would be committed by a person who does not return a child to a
parent or guardian who is entitled to remove that child and has requested their
return, or by a person who removes a child and is not authorised to do so
under sections 36-40.
Penalty
49. Liable on summary conviction, to a term of imprisonment not exceeding three
months and/or a fine not exceeding level 5 on the standard scale.
Recovery orders: section 41
50. Section 41 makes provision for what is to happen where a child is removed, or
there are reasonable grounds for believing that a person intends to remove a
child, or a child is withheld and not returned, in breach of sections 30-40. It
also applies where a person has failed to comply with sections 31(4), 32(2),
33(2), 34(3) or 35(2).
51. In those circumstances an application may be made to the court and the court
may by order:
direct any person who is in a position to do so to produce the child,
authorise the removal of the child by certain person,
require anyone who has information as to the child's whereabouts to
disclose that information to a constable or officer of the court, orThe Adoption and Children Act 2002
242
authorise a constable to enter any premises specified in the order (if there
are reasonable grounds for believing the child is there) and search for the
child, using reasonable force if necessary.
Offence
52. An offence would be committed if a person intentionally obstructs a person
exercising the power of removal conferred by the court order. .
53. A person who is required by an order to disclose information must disclose
that information even though it might amount to evidence that they had
committed an offence. However, in any criminal proceedings in which the
person is charged with an offence the prosecution cannot adduce evidence
relating to the information provided or ask questions about it, unless it is
raised by or on behalf of that person. There is one exception which is
excluded in subsection (8), for example offences under section 2 or 5 of the
Perjury Act 1911.
Penalty
54. Liable on summary conviction to a fine not exceeding level 3 on the standard
scale.
Disclosure of information – adoptions post 30 December 2005: section
57
55. A registered adoption society may not disclose identifying information about
an adopted adult, birth relative or other person except in accordance with
sections 56-65 of the Act and the Disclosure of Adoption Information (PostCommencement Adoptions) Regulations 2005 (AIR). It is intended to ensure
that sensitive information about a person’s adoption is properly safeguarded
and only disclosed under certain circumstances.
56. If a registered adoption society is found to have contravened section 57 it may
be grounds for Ofsted to cancel the agency’s registration under section 14 of
the Care Standards Act 2000 (as amended).
Offence: section 59 and AIR 21
57. An offence would be committed if the registered adoption society disclosed
information otherwise than in accordance with sections 56-65 of the Act and
the AIR.Annex A
243
Penalty
58. Liable on summary conviction to a fine not exceeding level 5 on the standard
scale.
Disclosure of information – adoptions pre 30 December 2005
59. Under regulation 7 of the Adoption Information and Intermediary Services
(Pre-Commencement Adoptions) Regulations 2005 (ISR), an intermediary
agency may not disclose identifying information about an adopted adult, birth
relative or other person without consent of the person about whom the
information relates. It is intended to ensure that sensitive information about a
person’s adoption is properly safeguarded. An intermediary agency may be a
registered adoption society of an adoption support agency.
Offence: ISR 17
60. An offence would be committed by an intermediary agency if it disclosed
identifying information to the applicant without the subject’s consent, and it did
so without reasonable excuse.
Penalty
61. Liable on summary conviction to a fine not exceeding level 5 on the standard
scale. If found guilty the agency will be liable to a fine. It may also be subject
to cancellation of its registration by Ofsted, the registration authority. Where a
local authority providing an intermediary contravenes ISR 7 the appropriate
Minister may take action under section 14 of the Act.
Adoption Support Agencies - setting up, managing and conduct
62. The Adoption Support Agencies (England) and Adoption Agencies
(Miscellaneous Amendments) Regulations 2005 set out the requirements in
relation to setting up and managing, an Adoption Support Agency. The
Regulations set out the conduct of the agency. Should Ofsted, as the
registration authority, find there to be a contravention or a failure to comply
with the Regulations, it may serve notice on the registered person. This
notice sets out the contravention or failure, the action that must be taken to
comply with the regulations, and the time within which remedial action must
be completed; this can be no more than three months. The notice must also
set out the time within which the registered person may make representations
to Ofsted. Ofsted may also bring proceedings in respect of a former registered
person in respect of a failure to comply with regulations 14 or 22.The Adoption and Children Act 2002
244
Offence
63. The registered person will have committed an offence if they contravened or
failed to comply with:
Regulations 5.1-5.7 and 6 (Statement of Purpose and Children’s Guide
and review of those documents),
Regulation 7.1 and 7.4 (Fitness of registered provider) Regulation 8(2)
(Appointment of manager)
Regulation 9(1) (Fitness of manager)
Regulation 10 ( Registered person – general requirements)
Regulation 11 (Notification of offences)
Regulation 12(1) and (2) (Arrangements for the protection of children)
Regulation 13 (Provision of services)
Regulation 14 (Records with respect to services)
Regulations 16-18 (Complaints and staffing of agency)
Regulation 19(1) (Fitness of workers)
Regulation 20 (Employment of staff)
Regulation 21(1) (Staff disciplinary procedure)
Regulation 22 (Records with respect to staff)
Regulation 23 (Fitness of premises)
Regulation 24(1) and (2) (Notifiable events)
Regulation 25 (Financial position)
Regulation 26 (Notice of absence)
Regulation 27(1) (Notice of changes)
Penalty
64. The registered person is liable on summary conviction to a fine not exceeding
level 5 on the standard scale.
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