Adoption

Adoption is a legal process where all the rights and responsibilities of the birth parents are permanently transferred to the adoptive parents by a court order. This process is sometimes used by couples who have conceived via donor insemination and wish to sever any legal relationship between the donor and the child.

Adoptions are normally arranged by an approved adoption agency, the only exceptions being adoptions by a close relative. An adoption agency is a local authority or an approved adoption society.

A relative is defined as a grandparent, brother, sister, aunt or uncle of the child, whether of full blood or half blood or affinity. Affinity means the relationships which result from marriage or civil partnership between one partner and the blood relations of the other. This definition of relative applies whether or not the parents of the child are married or civil partners

If a child is being adopted by a step-parent who lives with one of her/his birth parents and has lived with the child for at least six months before the adoption application.

Most people will apply to their local authority to be considered as a potential adopter but as it is not necessary to live in the area of the local authority there may be advantages in applying to a local authority with a track record of placing children with lesbian, gay or bisexual parents.

If you live alone or in a bisexual relationship then the question of disclosing your sexual orientation during the process often arises. If this information is not disclosed, but later comes to light you may be regarded as unreliable and you application prejudiced.

The attitudes of these agencies to lesbian, gay or bisexual applicants varies enormously and you will need to investigate each agency individually. The law itself has little to say on the issue of lesbians and gay men adopting children with most recent decisions conceding that living with a same sex partner is not an automatic bar to adopting. The current state of the law is best summarized by the following quote from a Scottish case where a gay man succeeded in an application to adopt a child.

The Lord President, Lord Hope, held:

'There can be no more fundamental principle in adoption cases than that it is a duty of the court to safeguard and promote the welfare of the child and issues relating to the sexual orientation, lifestyle, race, religion or other characteristics of the parties must of course be taken into account as part of the circumstances. But they cannot be allowed to prevail over what is in the best interests of the child. The suggestion that it is a fundamental objection to an adoption that the proposed adopter is living with another in a homosexual relationship finds no expression in the language of the statute.

This means that it is not possible for an adoption agency to argue that the law does not allow them to accept applications from people purely based on their sexual orientation. They can of course still object on other grounds and apart from rules about minimum age, a couple's marital status and certain past criminal convictions, there are few legal restrictions on who may adopt.

If an adoption agency does have a covert policy to discriminate on the grounds of sexuality it can be difficult to prove although such practice is becoming less frequent with agencies putting the welfare of the child above the prejudice of the agency.

However, adoption agencies also have their own policies and criteria to enable them to match children needing adoption and potential adopters. The table below gives an outline of the legal restrictions and how these may be applied by different agencies. The policies of adoption agencies will often be more flexible if the adoptive parents are applying to adopt a child who is hard to place, for example, an older or disabled child, or a sibling group.

Legal Restrictions on Adopters

Discrimination on the grounds of sexual orientation

Legal position

Generally, from 30 April 2007, providers of goods and services, including adoption agencies, are not allowed to discriminate by restricting the provision of their goods or services on the grounds of sexual orientation.

However, until 31 December 2008 in England, Wales and Scotland, voluntary adoption agencies and independent fostering agencies which are part of a religious organisation are allowed to discriminate by restricting the services they offer on the grounds of sexual orientation.

This means that a religious adoption agency can refuse to allow gay or lesbian couples to register with them as prospective parents.

Local authority or voluntary agency policy

Local authorities are not permitted to discriminate against potential adoptive parents on the basis of their sexuality.

All local authorities and most reputable voluntary sector agencies put the welfare of the child ahead of any other consideration.

However some religious groups have put their own bigotry before the welfare of the child and they have been given time to adapt or close.

If an adoption or fostering agency does restrict its services in this way, it must refer the person seeking the services to another agency which offers help to people of her/his sexual orientation.

Age limits

Legal position

If the applicants are a married couple and one of them is the mother or father of the child, s/he must be aged at least 18 and her/his spouse at least 21. All other applicants must be at least 21. There is no legal upper age limit.

Local authority or voluntary agency policy

Few adoption agencies will consider placing a baby with childless applicants where the applicants are over 40. Frequently the limit is set as low as 35, unless the family is of a particular ethnic minority group needed by the agency. If the child is older, the upper age limit of the applicant may be higher, often about a 40 - 45 year age gap maximum between parent and child.

Single parent

Legal position

Any single person may apply to adopt provided s/he is domiciled in the British Isles or has been habitually resident in the British Isles for not less than one year.

If a person who is married or in a civil partnership applies to adopt by her/himself, s/he must prove to the court that s/he is living apart from her/his partner and that the separation is likely to be permanent, or that the partner cannot be found or due to ill health, the partner is incapable of applying for an adoption order.

Local authority or voluntary agency policy

Agencies rarely accept a sole applicant for babies or very young children other than in ethnic minority groups. A single person, whether a man or a woman, is more likely to be considered for a child with special needs. This may include an older or disabled child.

Couples

Legal position

Any couple may apply to adopt as long as one member of the couple is domiciled in the British Isles or both have been habitually resident in the British Isles for not less than one year. A couple means two people who are married, in a civil partnership or two people of different sexes or the same sex living as partners in an enduring family relationship.

Local authority or voluntary agency policy

Most agencies expect people to have been living together for at least two or three years before applying. If the applicants have been married for a long time, for example, ten or 15 years, the agency would want to discuss the reasons why the applicants had now decided to adopt.

Applicants who already have their own child

Legal position

There is no legal restriction on a person with her/his birth child applying to adopt another child.

Local authority or voluntary agency policy

People who already have their own birth child are not excluded from adopting younger children (although the parents' age might exclude them). Agencies are likely to prefer to recruit families who already have parenting experience for older children and especially for children with emotional or behavioral difficulties.

Applicant (or member of applicant's household aged over 18) with criminal conviction or caution

Legal position

A person convicted of or cautioned about offences involving children is not allowed to be an adoptive parent. This applies if there is a member of the applicant's household aged over 18 who has been convicted of or cautioned about such offences. There are no legal restrictions on applicants with criminal convictions for other offences.

Local authority or voluntary agency policy

Agencies (and local authorities when they are investigating applications from people not applying through an agency) must require the applicant (and anyone in her/his household aged 18 or over) to obtain an Enhanced Disclosure from the Criminal Records Bureau. This will include details of all convictions, cautions, warnings, and reprimands, whether spent or not. It will also include details held by the local police station. This information will then be considered by the court when deciding whether or not to grant an adoption order, but will not necessarily exclude them.

Income/employment

Legal position

There is no legal requirement that applicants be employed or have a defined income level.

Local authority or voluntary agency policy

Agencies will want to find out if an applicant can manage on her/his income whatever that income may be. The applicant must have what the agency considers is a sufficient income to provide for the child's requirements, although adoption allowances may be available. After the placement, most adoption agencies will expect one of the parents to stay home with a baby for at least six months and with an older child for a period of time if s/he has particular needs. They will want to know what arrangements have been made about child care if both parents wish to work.

Health

Legal position

All potential adopters must undergo a medical examination and are required to pay for this.

Local authority or voluntary agency policy

Agencies will require a full medical examination. It is unlikely that an applicant with serious ill health will be accepted for adoption of a baby, but may be considered for adoption of an older child. Agencies will want to ensure as far as possible that the adoptive parents will survive at least until the child reaches adulthood.

Smoking

Legal position

There is no legal restriction on smokers adopting.

Local authority or voluntary agency policy

Following guidance from the British Agencies for Adoption and Fostering, non-smokers may be preferred to smokers because of the dangers of passive smoking. Agencies are unlikely to place a child under five or with respiratory problems in a household containing a smoker.

Placement with same race parents

Legal position

There is no legal requirement that children be placed with parents of the same race as themselves, although the Children Act 1989 recommends this as likely to meet a child's needs best. The Adoption and Children Act 2002 requires that in placing a child for adoption, the agency must give due consideration to the child's religious persuasion, racial origin, cultural and linguistic background.

Local authority or voluntary agency policy

Most agencies have a policy of trying first to place children with families of the same ethnic origin as the child.

If the agency refuses to accept an applicant

If an adoption agency refuses to accept an applicant, they may wish to take further action. S/he could consider the following options:-