A separated parent often forms a new relationship, creating a new family unit with their children and new partner. In such circumstances the new partner or spouse may, if the new family endures, wish to adopt the children, assuming that the parent with whom they live agrees. This is known as a ‘step-parent adoption’ (even if the separated parent and their new partner do not marry), or a ‘partner adoption’.
As we explained here recently in this post, the court will only be able to make the adoption order if the child’s other biological parent consents, or if the court dispenses with their consent.
The court can only dispense with their consent if they cannot be found, they are incapable of giving consent, or the welfare of the child requires their consent to be dispensed with.
In many step-parent adoptions the other biological parent, most commonly the father, cannot be found, and in some other cases they will give their consent, or be incapable of giving consent.
But sometimes they will oppose the making of the adoption order, in which case an adoption order will only be made of the court considers that it is in the best interests of the child to dispense with their consent.
A rare reported example of an opposed step-parent adoption occurred just recently, and illustrates how the court approaches such cases.
The case concerned a step-father’s applications to adopt his wife’s four children, the oldest of whom was 18 and the youngest in the final year of primary school.
He wished to adopt the children so that he would become their legal parent and the children would be treated in the future as being of the relationship that he had with their mother.
The applications were vehemently opposed to by the children’s father.
Briefly, the background to the case was as follows.
The children’s parents separated in 2017. The children remained with the mother. Contact between the father and the children was inconsistent, although in August 2019 a contact order was made providing for the children spend time with the father each Tuesday and Thursday and on alternate weekends.
In October 2019 the mother returned the matter to the court, stating that the children no longer wanted to see the father.
A contact order was made in October 2020 in relation to the three youngest children, reducing the contact to twice a month.
In the event the two middle children only attended a handful of contacts, with this coming to an end in early 2022.
Contact with the youngest child stopped in September 2022.
Meanwhile, the mother and step-father had commenced their relationship in April 2019, with the step-father moving to live with the mother and children in October 2019. They were married on 1st July 2022.
There was no dispute that the step-father had played a very active role in the children’s lives, and a strong and stable family unit had been established.
As mentioned above, the court had to decide whether dispensing with the father’s consent would be best for the children’s welfare. To do this, the judge took into account all of the circumstances of the case, including the following particular matters:
1. The children’s ascertainable wishes and feelings, having regard to their age and understanding. The three older children all wanted the adoption order to be made, and did not wish to see their father. The youngest child also wanted the adoption order to be made, but did wish to see their father.
2. The fact that the father’s relationship with the children had been either non-existent or poor in quality for several years.
3. The fact that the step-father had effectively acted as the children’s father for some years, and that the children, particularly the older three, were determined for the step-father to be their father in every sense – socially, psychologically, and legally.
In the circumstances, the judge concluded that the welfare of each individual child throughout their respective lives would be best served by the children having a father who existed emotionally, practically, and legally, and that adoptions orders should be made. Accordingly, he dispensed with the father’s consent.
He did, however, make an order for the youngest child to have contact with the father, starting on a monthly supervised basis.
Please contact us if you require any further information.
For more information on adoption and how we can help, see this page.
Adopting a child can be one of the most rewarding and fulfilling things anyone can do. But what is involved in adopting a child in England and Wales and how do you adopt a child?
First, we must consider adoption types and eligibility requirements.
There are two types of adoption: adoption though an adoption agency and non-agency adoption.
Agency adoption is where the child is placed with the prospective adopter by an adoption agency. The child may be voluntarily placed for adoption or removed due to welfare concerns. The agency will need to approve the prospective adopter before the child is placed with them.
A non-agency adoption is essentially where the child is already known to the prospective adopter. Examples include step-parent adoption, adoption by close relatives, and adoption by local authority foster carers.
Anyone aged twenty-one or over may apply to adopt a child. The application may be made by one person or by a couple. One parent must be at least eighteen, while the other must be twenty-one or older.
In most cases, the child must have had their home with the prospective adopter for a minimum period before the application can be made (the ‘residence requirement’). The length of the period depends upon who is applying for the adoption order.
For example, if the child was placed with the applicant by an adoption agency then the child must have had their home with the applicant(s) at all times during the period of ten weeks preceding the application, and in the case of a step-parent adoption the child must have had their home with the applicant(s) at all times during the period of six months preceding the application.
The agency adoption process begins with the prospective adopter(s) contacting the adoption agency. Once they have been approved and matched with a child they may apply to the court for an adoption order.
In non-agency cases the prospective adopter must notify the local authority in writing of their intention to apply for an adoption order, at least three months before the application is made. The local authority will then investigate the matter and prepare a report for the court. After a three-month notice period, prospective adopters can apply to the court for an adoption order.
The court requires parental consent or may dispense with it for the adoption order to proceed. Consent can be dispensed if parents are unavailable, incapable, or if child welfare necessitates dispensation, per court discretion.
The court process is similar for all types of adoption. It begins with the completion of an application and usually involves at least two hearings: the final hearing and before that a preliminary directions hearing, when the court will consider what needs to be done before the final hearing, such as what steps should be taken to find a birth parent if their whereabouts are not known.
The court will make the adoption order if it is satisfied that that is the best thing to do for the welfare of the child. The adoption order will give parental responsibility for the child to the adopters or adopter, and takes it away from the child’s birth parent or parents.
How long it will take to adopt a child can vary greatly, and will depend upon a number of factors. (The following time estimates do not include the residence requirement, referred to above).
If the adoption is through an agency the adoption approval process will normally take about six months. After that the prospective adopter(s) will be matched with a child for adoption, a process that usually take between six and twelve months, but can take longer. Finally, there is the court process of the adoption application, which will usually take about six to nine months.
In the case of a non-agency adoption there is the three month notice period before the application can be made, as mentioned above. Once the application is made the court process will again usually take about six to nine months.
For further information on how we can help, please see our adoption page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
There are about 4,000 adoption orders made each year in England and Wales. For those children, adoption is of course transformative. But what exactly does it mean for the adoptive parents? Do adoptive parents have the same rights as biological parents?
In a sense the question is not the right one to ask, as we no longer talk of ‘parental rights’, but rather of ‘parental responsibilities’. Nevertheless, for the purpose of this post we will use the term ‘rights’, as that is still in common usage.
Before we answer the question as to whether adoptive parents have the same rights as biological parents, we first need to consider just what ‘rights’ a biological parent has.
We said above that the law now refers to ‘parental responsibilities’ rather than ‘parental rights’. This was a major change in emphasis brought about by the Children Act 1989.
Somewhat confusingly, however, the Act defines ‘parental responsibility’ as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
OK, that definition doesn’t really take us much further. What exactly are these rights, duties, powers and responsibilities?
Well, the law does not list them. In fact, it may not even be possible to provide a comprehensive list. However, the following are generally accepted as being included in the definition:
Note that if more than one person has parental responsibility for the child then most of these decisions need to be taken jointly by everyone with parental responsibility, and any dispute between them over a decision can be decided by the court.
It should also be noted that if the parents are not married then only the biological mother will automatically acquire parental responsibility, although the biological father will usually acquire it later.
Having established what rights biological parents have over their children we can now turn to the question of what rights adoptive parents have.
And the answer is actually very simple.
An adoption order gives parental responsibility for the child to the adoptive parents, and takes it away from the biological parents (except in the case of a step-parent adoption, where the step-parent’s partner retains parental responsibility).
Thus the adoptive parents will have the same rights in relation to the child as the biological parents had.
What is more, the adoption order is permanent – i.e. the adoptive parents become the child’s legal parents throughout life, not just until the child reaches 18. The adopted child is deemed to be the adopter’s legitimate child and, if adopted by a couple, is treated as the child of their relationship, and is not the child of any other person.
And adoption orders are irrevocable. Where the relationship between the adoptive parents breaks down they will still retain parental responsibility.
So is that it?
Well, there is perhaps one other thing to mention.
Before making an adoption order, the court must consider whether there should be arrangements for allowing any personal contact with the child, for example, members of the child’s birth family.
There is no legal requirement for adoptive families to maintain contact of any kind with their child’s birth family after the adoption order is made. The court can, however, make a contact order if it considers that appropriate, although that is rare, and it will prefer contact arrangements to be agreed voluntarily between the two families.
Subject to that, however, adoptive parents are legally in the same position as biological parents.
We hope this article clarifies any ambiguity when it comes to the question, do adoptive parents have the same rights as biological parents? However, should you require any additional clarification or help with this matter, please contact us for more information. Additionally, you may find our child-law page helpful.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
