Section 17: Inquiries

69.     Section 17 provides that the appropriate Minister may cause an inquiry to be held into any matter connected with the functions of an adoption agency. Subsection (2) enables him to direct, before the inquiry begins, that it is to be held in private. In the absence of a direction from the appropriate Minister, the person holding the inquiry may decide whether to hold it, or any part of it, in private. The provisions in section 250(2) to (5) of the Local Government Act 1972 are to apply. This section follows the model of section 81 of the Children Act 1989, which also provides for inquiries.

Chapter 3 - Placement for Adoption and Adoption Orders

70.     Sections 18 to 29 introduce new provisions for the placement of children for adoption. An adoption agency may (except in the case of a child who is less than 6 weeks old - see paragraph 74) only place a child for adoption with the consent of the parent or guardian (referred to in these notes as the 'parent') under section 19 or under an order made by the court authorising a local authority to place a child with any prospective adopters chosen by them ("a placement order"- see section 21). Provision is made for who is to have parental responsibility for the child and the other consequences of placement with consent and placement orders.

71.     The intention is to ensure key decisions are taken earlier in the adoption process than at present, with court involvement where necessary. This is intended to provide greater certainty and stability for children by dealing with consent to placement for adoption before they have been placed (at present this issue is often not addressed until the final adoption order hearing); to minimise the uncertainty for prospective adopters, who under the current system possibly face a contested court hearing at the adoption order stage; and to reduce the extent to which birth families are faced with a 'fait accompli' at the final adoption hearing (as they may be under the current system, where their child has not been freed for adoption but has been placed with an adoptive family for some time before the application for an adoption order is made).

72.     A flowchart summarising the placement process is attached at Annex A.

Section 18: Placement for adoption by agencies

73.     Section 18(1) provides that an adoption agency (except in the case of a child who is less than 6 weeks old) may only place a child for adoption with prospective adopters where the parent of the child has consented to the placement or, in the case of a local authority, where it has obtained a placement order. Subsection (2) provides that an adoption agency may not place a child for adoption with prospective adopters unless the agency is satisfied that the child ought to be placed for adoption. Where a child is placed or authorised to be placed for adoption by a local authority, the child is a looked after child for the purposes of the Children Act 1989 (subsection (3)).

74.     An adoption agency may place a child who is less than 6 weeks old ("baby placement") for adoption with the voluntary agreement of the parent or guardian. Regulations made under section 9 will set out the process for obtaining this agreement. Subsection (3) applies to such a child. When the child reaches the age of 6 weeks and adoption remains the plan, the agency should obtain the consent of the parent or a placement order.

75.     Under subsection (5) placement has been given an extended meaning under the Act covering both placing a child with prospective adopters and, where the child is already placed with people for other purposes (for example with foster carers), leaving the child with them as approved prospective adopters. It will be open to local authority foster parents to seek formal approval from the local authority as prospective adopters in respect of a child being fostered by them. If they are approved as prospective adopters and the agency leave the child with them as prospective adopters, the placement will be an agency placement and there will be no need for them to give formal notice under section 44. If the agency does not approve them as prospective adopters, local authority foster carers can independently give notice of intention to apply to adopt the child as a non-agency case, providing the condition in section 42(4) is met.

76.     Under subsection (6) references in Chapter 3 to an agency being, or not being, authorised to place a child for adoption are to the agency being or not being authorised to do so under section 19 or a placement order. This means that where a child who is less than 6 weeks old is placed for adoption section 25, for example, will not apply.

Section 19: Placing children with parental consent

77.     Section 19 makes provision for placing children with parental consent. It allows an adoption agency to place a child for adoption where it is satisfied each parent has given consent to placement and that consent has not been withdrawn. Placement with consent may be with prospective adopters identified in the consent or with any prospective adopters who may be chosen by the agency (subsection (1)). Consent to placement with prospective adopters identified in the consent may be combined with consent to the child being subsequently placed for adoption with any prospective adopters who may be chosen by the agency (subsection (2)). Consent can be withdrawn at any point before an application for the adoption order is made.

78.     Subsection (3) provides that where an application has been made as a result of which a care order under the Children Act 1989 may be made and that application is pending, the provisions relating to placement of children with parental consent do not apply. Where a local authority is satisfied such a child should be adopted it must apply for a placement order under section 22(2). Where a child is placed for adoption with consent and a care order or a placement order is subsequently made in respect of the child, the authority to place for adoption provided as a result of the earlier section 19 consent no longer applies. Where a child is placed for adoption with consent and a special guardianship order is subsequently made in respect of the child, the authority to place no longer applies unless the special guardian consents, as their consent is required under section 19(1). Where a child is placed with prospective adopters and consent is then withdrawn the child continues to be treated as placed for adoption until the child is returned to the parents or any placement order application is determined (subsection (4)). Section 19 is subject to the provisions in section 52 relating to what is meant by consent. Consent must be given in a prescribed form and to ensure it is properly given in full understanding of what it involves it is intended that it will be witnessed by an officer of the Children and Family Court Advisory and Support Service, provided for by rules made under section 102.

Section 20: Advance consent to adoption

79.     Section 20 enables a parent who consents to his child being placed for adoption by an adoption agency to give consent at the same time to the making of a future adoption order ('advance consent'). As with placement with consent, advance consent may be to adoption by prospective adopters identified in the consent or by any prospective adopters who may be chosen by the agency. Subsection (3) provides that consent may be withdrawn. It must be withdrawn by notice in writing to the agency or in the form prescribed (see section 52(8)). Subsection (4) enables a parent who gives advance consent to adoption to give notice to the agency that he does not wish to be informed when an application for an adoption order is made, and to withdraw any such notice. This provision allows a parent who wishes to relinquish their child for adoption to do so, and to provide that they need have no further involvement in the adoption proceedings.

80.     Subsection (6) provides that this section is subject to the provisions in section 52 relating to what is meant by consent.

Section 21: Placement orders

81.     Section 21 defines a placement order. It is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority (subsection (1)). Only local authorities are able to apply for placement orders. Subsection (2) provides that the court may not make a placement order unless the child is already subject to a care order or it has the power to make a care order under section 31(2) of the Children Act 1989. In order to be able to make a care order (and therefore a placement order) the court must first be satisfied that the child concerned is suffering, or likely to suffer, significant harm, and that this is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him, or the child is beyond parental control. The only exception to this is where the child has no parent or guardian. In these cases the Children Act 1989 'significant harm' threshold in section 31(2) does not apply. This is to allow local authorities to place orphaned children for adoption.

82.     Linking the making of placement orders to these provisions in the Children Act 1989 is intended to deliver on the Government's undertaking to align adoption law with the Children Act 1989. The same threshold for compulsory intervention in family life is to apply where a local authority seeks authority to place a child for adoption without parental consent as applies where an authority seeks to take a child into care under a care order. In placement order cases, where the court is satisfied that the 'significant harm' threshold is met, it will then consider whether a placement order should be made. The section 1 provisions will apply: the child's welfare will be the paramount consideration, the court will apply the welfare checklist set out in section 1(4), the court will have to consider its full range of powers, and will only make the order if it is better for the child than not to do so.

83.     Subsection (3) provides that the court may only make a placement order if it is satisfied that the parent has consented to the child being placed for adoption with any prospective adopters who may be chosen by the agency and has not withdrawn that consent or that the parent's consent should be dispensed with. The grounds for dispensing with consent are set out in section 52(1). A placement order will continue in force until it is revoked, an adoption order is made in respect of the child or the child marries or reaches 18 (subsection (4)).

Section 22: Applications for placement orders

84.     Section 22 sets out when a local authority must apply for a placement order. An authority must apply for a placement order when the child is placed for adoption or is accommodated by a local authority, they are satisfied that the child ought to be placed for adoption, the parent does not consent to placement for adoption and either the child has no parent or guardian or the authority consider the threshold criteria in section 31(2) of the Children Act 1989 are met (subsection (1)). This might occur for example where the parent has withdrawn consent to placement for adoption but the authority remains of the view the child should be adopted.

85.     Where an application is pending on which a care order under the Children Act 1989 might be made, or the child is subject to a care order but the parent does not consent to the placement of a child for adoption, and the local authority are satisfied that the child should be placed for adoption, they must apply to the court for a placement order (subsection (2)). If the child is subject to a care order and the parent or guardian is prepared to consent to the placement of the child for adoption, the authority have a discretion as to whether to apply for a placement order (subsection (3)). Alternatively, they could decide to place the child with parental consent under section 19.

86.     Subsection (4) provides that where an application for a placement order is pending, the child is a looked after child for the purposes of the Children Act 1989 until the application is determined. If a placement order is made the child continues to count as looked after by virtue of section 18(3). Subsection (6) enables the court where the application for a placement order is pending and no interim care order has been made to give directions for the child to undergo medical, psychiatric or other assessment.

87.     The application for a placement order is to be made by the appropriate local authority as defined in subsection (7).

Section 23: Varying placement orders

88.     Section 23 provides that the court can vary a placement order to substitute another local authority for the authority authorised to place the child for adoption but the application has to be made by both authorities.

Section 24: Revoking placement orders

89.     Section 24 makes provision for the revocation of placement orders. A local authority or the child (or a person acting on behalf of the child) may apply to revoke a placement order at any time. Any other person, for example the parent, may apply for the revocation of a placement order with the leave of the court if the child is not yet placed for adoption by the authority. Leave cannot be given by the court unless it is satisfied that there has been a change in circumstances since the order was made.

90.     Subsection (4) provides that a court may discharge a placement order if, at the final adoption order hearing, it decides not to make an adoption order in respect of the child. It may be that the court decides not to make the adoption order because it considers that the child should not be placed for adoption, in which case it may discharge the placement order. Alternatively, if the court considers that the child should still be placed for adoption with a view to being adopted at a future date, it may decide that the placement order shall continue.

Section 25: Parental responsibility

91.     Section 25 makes provision for who is to have parental responsibility where an agency is authorised to place a child for adoption under section 19 or where a placement order is in force. Parental responsibility for the child is given to the agency (subsection (2)) and while the child is placed with prospective adopters, parental responsibility is given to them (subsection (3)). The child's parents retain parental responsibility throughout the process, up to the point at which any adoption order is made.

92.     Under subsection (4) it is for the agency to determine the extent to which the parental responsibility of any parent or guardian or of prospective adopters is to be restricted.

Section 26: Contact

93.     Sections 26 and 27 make provision for applications for contact in respect of children placed for adoption and where an adoption agency is authorised to place a child for adoption under section 19 or under a placement order. Subsection (1) provides that where an adoption agency is authorised to place a child for adoption, or a child is placed for adoption who is less than 6 weeks old, any contact order under section 8 of the Children Act 1989 or an order under section 34 of that Act (parental contact with children in care) ceases to have effect. The arrangements set out in previous contact orders may no longer be appropriate. The objective should be to agree whatever new arrangements for contact are appropriate given the adoptive placement. However, should agreement not be possible, an application may be made to the court for an order for contact. The application may be made by the child or the agency or the parent or other persons who are identified in subsection (3). On an application the court may make an order requiring the person with whom the child lives or is to live to allow the child to visit or stay with the person named in the order or for that person and the child otherwise to have contact with each other.

94.     Subsection (5) provides that section 26 does not prevent an application for a contact order under section 8 of the Children Act 1989 being made where the application is to be heard together with an application for an adoption order. This means that at the final adoption order hearing the court may make a contact order under section 8, ensuring that the court can make whatever arrangements may be appropriate for contact following the making of the final adoption order. This replicates the position under the current legislative framework.

Section 27: Contact: supplementary

95.     Section 27 makes supplemental provision in relation to contact. There may be cases where it is inappropriate for contact to take place even though provided for under an order. Subsection (2) enables the agency to refuse contact for a period of not more than 7 days if it is satisfied that it is appropriate to do so in order to safeguard the child's welfare. Regulations may set out the circumstances in which the terms of any order made under section 26 may be departed from.

96.     Subsection (4) imposes a duty on the court when making a placement order or a final adoption order to consider the arrangements the agency has made or proposes to make in relation to contact and under subsection (5) the court may impose any conditions on a contact order made under section 26 as it thinks fit.

Sections 28 and 29: Further consequences of placement and placement orders

97.     Sections 28 and 29 make further provision as to the consequences of placement. Where a child is placed for adoption, or an adoption agency is authorised to place a child for adoption under section 19, a parent cannot apply for a residence order (section 28(1)(a)), unless an application for a final adoption order has been made and the parents have obtained the leave of the court to oppose the making of the adoption order under section 47(3) or (5). This is to allow competing applications for residence orders from parents at contested final adoption order hearings. Where a child is placed for adoption, or an adoption agency is authorised to place a child for adoption under section 19 and an application has been made for an adoption order, a guardian of the child may not apply for a special guardianship order unless he has obtained the leave of the court under section 47(3) or (5) (section 28(1)(b)).

98.     If an agency is authorised to place a child for adoption (whether or not the child is placed) a person cannot cause the child to be known by a new surname or remove him from the United Kingdom except with the leave of the court or if each parent gives written consent. Prospective adopters with whom a child is placed cannot call the child by a different surname unless these conditions are satisfied. Prospective adopters may take him out of the United Kingdom on holiday for up to a month (section 28(2) to (4)).

99.     Section 29 makes further provision in relation to placement orders. Where a placement order is made in respect of a child and either the child is subject to a care order or the court makes a care order in the same proceedings, the care order is suspended during the period when the placement order is in force. On the making of a placement order, any order mentioned in section 8(1) of the Children Act 1989 (for example, residence orders) and any supervision order cease to have effect. Furthermore, where a placement order is in force a prohibited steps order, a specific issue order, a residence order and a supervision order cannot be made in respect of that child.

100.     Subsection (5) provides that where a placement order is in force no special guardianship order may be made in respect of the child. However, once an application for a final adoption order has been made in respect of the child, a person entitled to do so may make a competing application for a special guardianship order with the leave of the court.

101.     Subsection (4) provides that where a placement order is in force and an application for a final adoption order has been made a parent or guardian may make a competing application for a residence order providing they have the leave of the court to oppose the making of the final adoption order under section 47(3) or (5). Once an application for a final adoption order has been made anyone else who is entitled to do so may make a competing application for a residence order, with the leave of the court.

Removal provisions

102.     Sections 30 to 35 make provision in relation to the removal of children who are or may be placed for adoption by adoption agencies, to ensure that they are only removed from placements by authorised people in the appropriate manner. Sections 30 to 35 apply whether or not the child in question is in England or Wales.

Section 30: General prohibitions on removal

103.     Section 30 imposes general restrictions on removal. Section 30 is subject to sections 31, 32 and 33. Under subsection (1)(a) where a child is placed with prospective adopters under section 19 it is an offence for a person other than the agency to remove the child from that placement (subsections (1) and (8)). Under subsection (1)(b) where a child is placed for adoption and either is less than 6 weeks old or the agency has at no time been authorised to place the child for adoption, the same offence applies. This ensures that where a child is placed with the mother's consent while under 6 weeks of age but the agency is later unable to secure the mother's consent under section 19 the restrictions on removal would continue to apply to the placement.

104.     Subsection (1) applies even if the parent has withdrawn his consent to placement. However, under section 31 where a parent withdraws his consent to placement the agency must return the child within 7 days if the child has not yet been placed for adoption under section 19 with prospective adopters or the child is placed and either the child is less than 6 weeks old or the agency has at no time been authorised to place the child for adoption. Under section 32 where a parent withdraws his consent to placement the prospective adopter must return the child to the agency within 14 days if the child has been placed under section 19 with prospective adopters, unless an application is or has been made for a placement order. If no application for a placement order has been made within seven or 14 days the agency must return the child to the parent, unless the child is subject to a care order.

105.     If a child is accommodated by a local authority and they have applied for a placement order and the application has not been disposed of, the child may not be removed from the accommodation pending the determination of that application without the leave of the court (section 30(2) and (8)). Where an agency is authorised to place a child for adoption but the child is not yet placed and is being provided with accommodation by an agency in, for example, a foster placement or a children's home, it is an offence for a person other than the agency to remove the child from that accommodation (subsections (3) and (8)). Subsection (3) applies if the parent has withdrawn his consent to placement.

106.     The general prohibitions on removal set out in this section are subject to the specific provisions made in sections 31 to 33 (subsection (4)). But the provisions in sections 30 to 33 covering prohibition on removal do not prevent the removal of a child who is arrested, or removal as a result of the exercise by a local authority or other person of a power conferred by any enactment (excluding the right under section 20(8) of the Children Act 1989 of a person who has parental responsibility for a child to remove a child voluntarily accommodated by a local authority (subsections (6) and (7)). Sections 31 to 33 do not apply if the child is subject to a care order (subsection (4)).

107.     Subsection (8) provides that a person who removes the child in breach of subsection (1), (2) or (3) is liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding level 5 on the standard scale, or both.

Section 31: Recovery by parent etc. where child not placed or is a baby

108.     Section 31 applies where a child is not yet placed for adoption but is being provided with accommodation by an adoption agency and consent to placement has been withdrawn, or where a child is placed for adoption and either the child is less than 6 weeks old or the agency has at no time been authorised to place the child (subsections (1) and (3)). Consent to placement must be withdrawn by notice in writing to the agency or in the form prescribed. If the parent informs the agency that he wishes the child to be returned to him, the agency must return the child to him within seven days unless the agency is a local authority and they have applied for a placement order (subsection (2)).

Section 32: Recovery by parent etc. where child placed and consent withdrawn

109.     Section 32 applies where a child is placed for adoption with prospective adopters under section 19, the parent has withdrawn consent and the agency agrees the child should be returned to his parent (subsection (1)).

110.     If the parent informs the agency he wishes the child to be returned to him, the agency must give notice to the prospective adopters that the parent wishes the child to be returned to him and the prospective adopters have to return the child to the agency within 14 days (subsection (2)). The agency must then return the child to his parent (subsection (4)). If the prospective adopters do not return the child, they commit an offence and are liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale, or both (subsection (3)).

111.     If before notice of removal is given, an application for an adoption order in England and Wales (or Scotland or Northern Ireland) or for a residence order or special guardianship order, or for leave to apply for these orders in respect of the child, and that application has not been disposed of, the prospective adopters do not have to return the child unless the court makes an order to that effect (subsection (5)).