National Adoption Week: A brief case law update

  1. In the recent case of Re S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam), Cobb J provided guidance as to how the court should assess the competence of a child parent when it comes to the issue of consent. The mother, S, was a young person under 16 with developmental delay and learning disabilities. S wanted to consent to the adoption of her three-month old baby and felt she was competent so to do. Cobb J identified six questions that should be answered in such circumstances, one being ‘what is the test for establishing the competence of a child parent to consent to the placement and/or adoption of her baby?’. Cobb J identified the ‘sufficient’ information that the child parent would be required to understand with regard to extra-familial adoption and in so doing, provided a timely reminder of the fundamental legal consequences of adoption. The ‘sufficient’ information would be:

    a) Your child will have new legal parents, and will no longer be your son or daughter in law;
    b) Adoption is final, and non-reversible;
    c) During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live;
    d) You may obtain legal advice if you wish before taking the decision;
    e) The child will live with a different family forever; you will (probably) not be able to choose the adopters;
    f) You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited;
    g) The child may later trace you, but contact will only be re-established if the child wants this;
    h) There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted; and
    i) For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made.

  2. This may be compared, as it was in Cobb J’s judgment, to the relevant information that a child under 16 would need to be able to understand, retain and weigh up in order to be competent to consent to their child being accommodated pursuant to section 20 Children Act 1989, namely:

    a) That the child will be staying with someone chosen by the local authority, probably a foster carer;
    b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time; and
    c) That the parent will be able to see the child.

  3. Cobb J also emphasised that the decision to consent to an adoption is significant and life-changing. There is a greater onus on ensuring at the decision-making stage that the child parent understands and is able to weigh the information. If there is any doubt about the competence of a child parent to give consent to adoption or placement for adoption, the issue should be referred to a court.

Rebecca Cross
Law is correct as at 18th October 2018

Whilst every effort has been taken to ensure these notes are as correct, they are intended to give a general overview of the law. Delegates are respectfully reminded that they are not intended to be a substitute for specific legal advice. No liability is accepted for an error or omission contained herein.