SCOPE OF THIS CHAPTER
The term 'relinquished child' is used to describe a child, usually a baby or at pre-birth stage, whose parents are making the choice of adoption for the child.
This chapter deals with the first stages of the adoption process for relinquished children, whilst signposting other key processes that should be progressed and which are expected for any child who is Accommodated or where the plan is for adoption. It also summarises the counselling and support that will be made available to the birth family in these circumstances. Once a decision is made and consent is formally given, although not irreversible, the adoption process is as for any other child.
Therefore, this chapter should be read in conjunction with the Related Chapters.
AMENDMENTIn March 2019, Section 5, Consent and Competency was updated to include additional information on parental capacity to consent, in line with High Court case-law.
All local authorities have a statutory duty to respond to a request from a parent or guardian for their child to be placed for adoption, and a separate process to progress this, at least in the initial stages, outside of the Care Proceedings process is established in Part 3 of the Adoption and Children Act 2002.
Working with a request for a child to be relinquished will be challenging for many practitioners on the basis that most children's best interest is served by being with their parent and it will be important to ascertain the reasons why the mother sees the best interest for her child in this way and to offer challenges to this through a counselling process. (See Section 3, Counselling).
Throughout this process it will remain important:
Referrals will be received via the Contacts and Referrals Procedure and should be dealt with promptly. Requests may be self referrals or come from a GP, Midwife, school, other health professional or family member, etc.
As much information as possible should be taken at this initial stage about the parent(s) and their circumstances, but must be balanced with a need for sensitivity and an understanding that key areas will be dealt with through the counselling process that will be required. (See Section 3, Counselling).
The practitioner dealing with the request should bring the matter to the Team Manager's attention so that the referral can be dealt with promptly by an appropriately skilled and experienced practitioner with relevant knowledge of adoption.
Counselling should be undertaken as promptly as possible following the referral, by an experienced practitioner who has knowledge and skills in adoption, and include a discussion about the issues adoption brings for both the parent / guardian and the child.
The practitioner counselling the parent/guardian should ensure that they:
Important note: it is not mandatory, or a requirement, that family relatives are informed of the child's birth or a proposed plan of adoption. In considering this, the Local Authority should discuss with the parent(s)/guardian: the likely views of the extended family (grandparents, siblings etc.) and the consequences of them both subsequently 'knowing' or 'not knowing' of the child's birth and plans for adoption.
Counselling the parent(s) should include providing information about adoption and gleaning information that might be relevant for the child:
Without Parental Responsibility, the birth father is not entitled to provide consent to a placement for adoption.
If the mother is not married, the practitioner should check the birth certificate of the child to identify whether the birth father has acquired Parental Responsibility as a result of being named on the child's birth certificate.
The practitioner should seek if possible to understand the father's identity from the birth mother, including:
However, the law does not force a mother to divulge the identity of a father who does not have Parental Responsibility and the legislation does not impose a duty to make enquiries of a father without Parental Responsibility, or his family.
There is no duty on a Local Authority as 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.
If the identity of the birth father becomes known, the practitioner, with the Team Manager, should decide if it is practicable and consistent with the child's welfare, to provide him with information and counselling and to ascertain whether he wishes to obtain Parental Responsibility and /or Child Arrangements Order.
In making this decision, the practitioner must balance:
Where a birth father acquires Parental Responsibility and the mother has already consented to adoption, and the child has been placed for adoption, (under Section 19, Adoption and Children Act 2002), it is considered that the father has also consented to the placement for adoption. However, the birth father can then withdraw his consent, provided he does so before an application has been made to court for an Adoption Order.
However, where the Local Authority wish to continue with the adoptive placement, a placement order application must be applied for. (Note: where the application is before the court, there is no obligation for the Local Authority to return the child to either parent).
As with the mother and birth father without Parental Responsibility, the father's extended family have the same legal position, i.e. it is at the discretion of the Local Authority as to whether contacting them is appropriate. (See Important Note in Section 3, Counselling).
The Local Authority as the Adoption Agency must be sure that the parent or the guardian is competent to give consent.
During the counselling sessions, care should be given to identifying whether the parent(s) are capable of giving consent, especially if there is evidence of: learning disabilities; mental health issues; cultural, ethnic or faith issues; consent being given conditionally, etc.
Where there is concern as to the parent's understanding, an additional and specialist assessment should be sought from another professional - preferably someone who already knows the parent, such as an approved mental health social worker; a disabilities social worker; GP; midwife or health visitor; psychiatrist / psychologist or someone who can offer a faith or cultural perspective.
If the issue of competency is known at the point of referral or at an early stage in the process, then the Local Authority should not ask Cafcass to witness consent, until any such issues are resolved. Where a parent is under 18 years (i.e. considered to be a 'child' themselves within the meaning of the Children Act 1989), they can be considered to give valid consent if assessed as competent by the counselling practitioner.
The High Court in Re S (Child as parent: Adoption: Consent)  EWHC 2729 (Fam) made clear that parental Capacity to consent to a child being accommodated under s.20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific. (That case concerned a 'child parent' (i.e. below 18 years of age) with learning disabilities. The principles, however, will be of relevance in considering parental capacity, irrespective of their age).
The court set out the salient or 'sufficient' information which is required to be understood by a parent regarding extra-familial adoption:
When determining the competence of a parent in these circumstances, 'all practicable steps' must be taken to help them to make the decision, for example using simple language, visual aids or other means. A parent will be treated as understanding the information relevant to a decision if they are able to understand an explanation of it given to them in a way which is appropriate to their circumstances.
The decision to consent to adoption is significant and life-changing. Before exercising their decision-making, the parent should freely and fully understand the information set out on the consent forms, which should be conveyed and explained to them in an appropriate way; there is no expectation that the parent would be able to understand the precise language of the consent forms.If there is any doubt about the competence of a parent to give consent to adoption or placement for adoption, the issue should be referred to a court.
Where it is considered that the parent is not capable of giving informed consent but the Local Authority decide to place the child for adoption following their counselling and assessment, an application for a placement order must be made. (See Section 22(1) Adoption and Children Act 2002).
Following the counselling stage and if the parent(s) continue to express their need for the child to be adopted, a decision to proceed to Adoption Panel for the child to be considered for adoption as a relinquished child should be made by the appropriate Children's Social Services Officer. (Note however, that it is the Adoption Panel recommendation and the Adoption Agency Decision Maker that will confirm the plan for the child).
In addition the Local Authority need to inform the Cafcass office (closest to the parent(s)/guardian's address). (See Letter 1: Advanced Notification of the child to be relinquished for adoption: Sections 19 and 20 Adoption Children Act 2002).
Where the child is already in the care of the parent(s), an assessment and decision should be promptly made as to the point at which the child should be Accommodated, bearing in mind that separation will impact upon the child's developing attachment; this could be 'positively' if the parent(s)/guardian bond is poor, with the consequent impact upon the child's attachment. In many circumstances, the child will be accommodated promptly under Section 20 (1989 Act) because of a parent(s)/guardian's circumstances and wishes. (See Decision to Look After and Care Planning Procedure).
The parent should sign their consent to the placement for adoption - having been provided with all relevant information in respect of adoption, contact and support for them and their family, (see Section 3.3, Counselling About Adoption).
When the matter has been presented to Adoption Panel and agreed by the Agency Decision Maker and Cafcass have completed their role, an adoptive placement should be sought. (See Section 8, Adoption Panel).
A referral to the Adoption Team should be made as soon as possible within the 'relinquished process' so that efforts can be made to identify an appropriate placement, including a Foster to Adopt placement, (see Fostering for Adoption, Concurrent Planning and Temporary Approval as a Foster Carer of Approved Prospective Adopters Procedure).
Following Accommodation of the child, the practitioner should progress the matter as with any other child who becomes looked after:
In many instances the parent(s) will be completely disengaged at an early stage and there might therefore be an issue of continuing engagement to undertake necessary tasks, e.g. obtaining a birth certificate, completing consent forms, etc.
See ADCS, Good Practice Guidance for Adoption Agencies and Cafcass: Children Relinquished for Adoption - Annexe 5 'Statement That I Do Not Wish to be Notified of the Application for an Adoption Order for my Child - Section 20(4) Adoption and Children Act 2002' Proforma.
Work with the child, in an age-appropriate way, should be begin to be undertaken to help prepare them for the planning and changes that will progress them to their permanent placement. The nature and style of this work will vary greatly on the child and their age, understanding and capacity and is likely to be a mixture of play, counselling and 'discussion'. This could include a final 'goodbye' contact with their parent(s)/guardian and family.
Once the Local Authority has made a decision that the plan for the child should be one of adoption, in addition to the Looked After Child record, an Adoption Case Record should be established.
Many children who are relinquished will come as a pre-birth request from the mother. Counselling processes / information gathering processes with the mother and, (where appropriate and known), putative father need to be undertaken and progressed.
Additionally, a foster to adopt placement can be sought, (if assessed as appropriate), or initial request for a placement, together with planning a schedule for Adoption Panel.
Note however that formal consent by the mother for an adoption placement and advance consent to adopt cannot be given until the child is 6 weeks old.
At the point of the child's birth, the mother can decide to care for the child or request separation. However, greater involvement at this stage by the mother is likely to make it more difficult to separate.
The practitioner should seek to meet with the mother as soon as reasonably possible, checking with maternity staff that this is appropriate. The focus should be on the mother's welfare; reflecting on the plan for relinquishing the new-born child and exploring how the mother / father (if appropriate) want to deal with this stage of the process. It should also include advice / information, perhaps particularly around separation and naming the child.
This stage of the process is one of particular sensitivity and should be lead by the mother. The parent(s) can provide as much or as little for the child as they feel they want to at this very initial stage and should be encouraged / supported - but not pressured - to have contact with the child. This contact could be at the foster carer's home - given that, unless there are health issues for the child requiring the child to remain in the maternity unit, discharge is likely to be after 24 hours and should be to the identified foster carer.
It should also be considered that this is the point at which the child's Life Story Book starts, and provides an opportunity to collate detail and (with permission) photos for the child's Life Story Book.
At the time of birth, the practitioner should:
Note: these forms should be completed before the child's discharge, so as to avoid unnecessary delay later.
Following discharge from hospital, the practitioner should progress the matter as with any other child who becomes looked after, (see Section 6.1.1, Accommodation of the child).
Additional counselling for the parent or guardian should be provided where the local authority is seeking to obtain their signed agreement to the placement for adoption of the child aged under 6 weeks. The local authority should make it clear orally and in writing:
Subject to the agreement being signed, the local authority 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 6 weeks, whether they are prepared to consent to:
Where the child is Accommodated under Section 20 (Children Act 1989) and is less than 6 weeks old and the parent changes their mind, a request for the child to be returned to the parent's care must be responded to.
Nevertheless, an evaluation of the circumstances should be undertaken and include any factors that may require a formal child protection risk assessment. (See Wirral SCB: Multi-agency Thresholds).
Following such an assessment, and if the Local Authority identify the child's welfare and best interests would not be met by a return to the parent / guardian's care, the Local Authority may apply for: an Emergency Protection Order or Care Order; a Placement Order or Adoption Order.
If the child has been Accommodated for more than 20 days then the decision should be undertaken by the Nominated Manager for 'Ceasing Look After a Child'; if the length of time is fewer than 20 days, then this decision can be undertaken by a Team Manager.
In all circumstances, any child returning home should be made on the basis that they are safeguarded and their welfare and best interests will be promoted. This should take into account the support that can be provided by Children's Services and its partner agencies.
Note: Where the parent / guardian withdraws their consent to adoption it should not be assumed that the threshold criteria under section 31(2) will be satisfied and each case needs to be considered on its own facts. (See Re A O (care proceedings) 2016 EWFC 36).
The parent(s) can withdraw their consent to the child's placement for adoption at any stage prior to the prospective adopters issuing an adoption application in relation to the child, either by using the 'Withdrawal of Consent Sections 19 and 20 of the Adoption and Children Act 2002' form or by written notice given to the Adoption Agency.
On receiving the Notice of Withdrawal, the Local Authority (as the agency) will lose the authority to place and there should be an immediate review of the child's plan for adoption. Following legal advice, the Local Authority may decide to apply for a Placement Order.
Where the child is not yet placed with adoptive applicants - and the parent or guardian informs the Local Authority that they wish the child to be returned to their care, the child should be returned to the parent(s) / guardian within 7 days, unless the Local Authority has either made an application for a Placement Order or a decision is made to apply for a Placement Order. Where the child is placed for adoption - and the parent or guardian requests the return of the child, the child should be returned to the agency within 14 days, beginning with the day on which the notice was given, unless the Authority has either made an application for a placement or a decision is made to apply for a Placement Order. As soon as the child is returned to the Local Authority / Adoption Agency, the child must return to the parent / guardian.
Once consent has been signed the practitioner should proceed to the Adoption Panel (see Adoption Panel Procedure) after completing the child's Permanency Report and providing the range of required documents, notably the child Permanency Report.
Once the Adoption Panel and Agency Decision Maker have confirmed the plan for the child to be adoption, notification must be urgently sent to Cafcass.
Note that it is usual practice for the Local Authority to refer to Cafcass after the Panel and Agency decision to place for adoption. However, the law allows a parent to give consent for adoption ahead of these processes - although the child must be 6 weeks of age. (This might be the case if a parent is anxious to give consent at the point of the child being 6 weeks of age, or the Local Authority are satisfied that every effort has been made with respect to the counselling of the parent who wishes to give consent, and to delay for an Adoption Panel meeting might then lead to difficulties and, as a result, undue delay for the child's plan).
The principal role of Cafcass is to ensure that consent to place for adoption (Section 19) and advance consent for an Adoption Order (Section 20) has been made unconditionally and with a full understanding of all that this means in terms of those sections, of adoption and all its implications.
In doing so, it is helpful for the Schedule 2 (Adoption Agency Regulations) report to be sent with the formal request to Cafcass.
It is not however, the role of Cafcass to challenge birth parents about their decision to relinquish the child, (as long as they are competent) or the Local Authority / Adoption Agency 's decisions in respect of birth fathers without Parental Responsibility, involvement of extended family etc.
The following needs to be sent to Cafcass:
The following consent forms need to be completed by the parent(s) following the counselling and witnessed by a Cafcass Officer:
A102: Consent form to the placement of adoption with identified prospective carers and, if the placement breaks down, with any prospective adopters chosen by the Adoption Agency - under Section 19 (Adoption and Children 2002 Act)