The process of adopting a child can be an emotional rollercoaster ride. From the excitement of making initial enquiries, through the process of application, and then waiting to hear on the final decision, there is little doubt that adopting is not for the faint-hearted. It is for this reason that it is vital that the process be undertaken to the letter of the law, as the cost of not doing so can lead to considerable uncertainty and worry. And unfortunately, that upheaval may come months or years after the application is granted. In a recent landmark case, ZH v HS  EWHC 2190 (Fam), the High Court’s family division, took the decision to revoke an adoption order granted to the aunt and uncle of a child who had arrived from Somalia four years earlier.
Background of the case
In 2015, the child and her mother came to the UK from Somalia. During the relocation process, the mother and child became separated, and the mother was removed from the country. Through an agent, the child was taken to stay with her aunt and uncle in the UK, who then informed their local authority of the arrangement. Nine months after the child’s arrival in the UK, the aunt and uncle made an adoption application, consented to by the father who was in Somalia; the mother was noted as being missing. The aunt and uncle attended a Court hearing in 2016, where they had no legal representation, and the aunt required the services of a translator. The local authority had submitted an Annex A – Adoption Order Report, which was filed with the Court in advance of the hearing. The adoption order was granted at this time.
Two years later, the child’s mother arrived in the UK and applied to have the adoption order revoked.
The Court agreed that the adoption should be revoked, principally on the basis that it was not granted in accordance with the law, namely the Adoption and Children Act 2002 (ACA 2002) and the Family Procedure Rules 2010 (FPR) Part 14 (of which there are 28 individual rules).
How did the Court arrive at their decision?
It was discovered that three of the ‘gateway’ requirements for non-agency adoption had not been met:
- Prior to making the application, the aunt and uncle had advised the LA that the child was in their care, but they had not informed them of the intention to adopt.
- The child had not lived with the adopters for a minimum of three years (or gained permission from the court to apply for adoption).
- The parents had not consented to the adoption on the required form – the father had agreed for the aunt and uncle to care for the child, but permission for adoption had not been sought or given.
In addition, under the FPR, part 14, which defines the procedure for applications in adoption, placement and related proceedings, the correct process had not been followed, including:
- The mother, child, and local authority had not been listed as respondents on the application form. Indeed, there had been no attempt to contact the child’s mother.
- A children’s guardian should have been appointed to represent the child. Their role is to “fairly and competently to conduct proceedings on behalf of the child. The children’s guardian must have no interest in the proceedings adverse to that of the child and all steps and decisions the children’s guardian takes in the proceedings must be taken for the benefit of the child.”
- No notice of the proceedings or the final hearing had been served.
- The Annex A adoption report contained no up-to-date medical information on the child, or the aunt and uncle, any DBS checks, or any analysis of the merits of adoption. It also contained incorrect information, and there was evidence that the social worker had not been supervised (having only very recently being appointed) during the process. Furthermore, the final Annex A report was filed with the Court without being shown and agreed with by the aunt and uncle.
In this case, the High Court found systematic failings of the application process, by the unsupervised social worker, and also the Court which granted the application. Greater robustness is needed within Courts to ensure that the fulfilment of gateway requirements for non-agency adoptions are fully assessed and met before granting the adoption. As such, a series of improvement have been recommended to avoid any future recurrence of such circumstances.
From the perspective of the applicants, not having legal representation would have meant they were reliant on the local authority and Courts to guide them through the process and to carry out their duties to the letter of the law. Had a family law Solicitor been engaged early in such circumstances, they would have advised the prospective adopters as to their options, legal standpoint, obligations, risks, and undertaken the process on their behalf. In this case, it seems that everything that could have gone wrong, did, resulting in uncertainty and emotional distress for all concerned. Ultimately, what matters most is the welfare of the child, and, as such, their safety, security, and care should be paramount.
Rosie Bracher is a specialist family law firm based in Barnstaple. We have the knowledge and expertise to advise you on adoption and other family law matters. Please contact our office on 01271 314 904 and arrange to speak to one of our team.