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Adoption Law and Building Families
JMW's specialist adoption solicitors advise on the options for extending your family through adoption, gamete donation, surrogacy and co-parenting. We can also help you decide which path is best for you, and assist you in obtaining court orders to cement the legal status of your family unit.
The law on the various forms of legal parenthood, including adoption, can be complex, especially in international cases. It is therefore essential to obtain specialist legal advice.
Whether or not a child is biologically related to their parent(s), their relationship will be among the most fundamental bonds that can exist between individuals. It is vital that this bond is built on a solid legal foundation to ensure the family's future security and sense of identity.
If you are in need of advice or guidance, or need to talk to someone about the next steps, do not hesitate to get in touch with our specialist adoption and fertility law solicitors. Simply call us on 0800 652 5577 or complete our online enquiry form and we will give you a call back at a convenient time.
Adoption is the oldest method of extending a family and one of only two methods by which legal parenthood can be re-assigned.
An adoption order severs the legal relationship between a child and their birth parents, and creates a new, legally binding parent-child relationship between the child and his or her adoptive parents. When a final adoption order is made, the child's birth certificate is replaced by the adoption certificate, naming the adopters as the child's parents.
It is important to understand that although the legal links with the birth family are severed, there will be times when the court considers that the child should maintain some link with their biological family in one form or other.
This can be by way of face to face contact or more indirect methods such as the exchange of letters, photographs and progress updates. Whether this is considered appropriate and what form any ongoing contact should take will vary in each case. The adoption agency will discuss the various options with you, and this can be taken into consideration as part of the matching process.
In England and Wales, adoption is open to:
- Single applicants
- Same-sex couples who are married, in a civil partnership or an 'enduring relationship'
- Opposite-sex couples who are married or in an 'enduring relationship'
Anyone considering international adoption must remember that some countries are more restrictive and may not allow single parents, unmarried couples or same-sex couples to adopt.
In England and Wales a prospective adopter must:
- Be at least 21 years old
- Have their habitual residence or domicile in England and Wales
- Have no convictions for certain criminal offences
There is no upper age limit or further statutory criteria. However, the suitability of prospective adopters will be considered carefully and thoroughly via an assessment process. As part of this process, all the circumstances will be taken into account and detailed consideration is given to how capable each prospective adopter is of meaning an adopted child's needs.
The types of issues adoption agencies consider include:
- Physical and emotional health
- Relationships with friends and family and past relationship history
- Financial circumstances
- Previous experience with children
- Employment demands
- Ethnic and cultural background
- Support network
- Ability to understand the particular needs of an adoptive child and ability to help them develop a healthy self-identity
International adoption (also called intercountry adoption) can be a complicated process, both legally and procedurally. It is crucial to plan carefully and obtain legal advice, both here and in the child's country of origin, before pursuing an international adoption. Without proper advice, prospective adopters may end up committing a criminal or civil offence, despite acting with the best intentions.
The rules on eligibility to adopt, the procedure for approval, and the process for obtaining a final adoption order differ significantly from country to country. Some countries have stricter rules than others about foreign nationals adopting children from their state. Detailed information and advice should always be obtained before embarking on any adoption journey so you can avoid unnecessary complications once you start.
Sometimes the court proceedings will take place in the country where the adoptive parents are based, other times it will be the home country of the child involved. It is sometimes necessary for the child to travel between states as part of the adoption assessment and approval process.
It is often necessary to obtain the prior permission of the relevant court for a child to visit a foreign country for any reason linked to adoption. Moving a child internationally, even for a short period of time or for the completion of a legitimate assessment, can constitute a criminal offence if the relevant consents have not been obtained beforehand.
Adoption orders issued in a foreign state are not always automatically recognised in England and Wales, and visa versa. Depending on which countries are involved it may be necessary to obtain an adoption order in both countries.
The relevant law and procedure, as well as the status of a final adoption order, will depend on which two countries are involved.
There are three categories:
- Countries signed up to the Hague Convention on Inter-Country Adoption
- Countries on the Designated List
- Countries not covered by either provision
The most straightforward international adoption is one that takes place between two Hague Convention countries. The Convention allows for the reciprocal recognition of adoption orders, meaning that an adoption undertaken in one country will be automatically recognised by others. In countries that have signed up to the Convention, there are common, recognised procedures for undertaking any assessments and arranging international travel for the adoptive parents and/or the child.
An inter-country adoption that takes place between England and Wales and a country not on the Designated List or a signatory to the Hague Convention will not be recognised. This can give rise to significant complications, including restrictions on your new child being allowed into this country.
Adoption and Infertility
Where adoption is being pursued following failed attempts to conceive a biological child, the assessment process will also address and assess the prospective adopter's emotional response to the problems they have encountered. The assessors will make sure that each prospective adopter is emotionally ready to support the needs of an adoptive child and is able to commit absolutely to extending their family through adoption rather than alternative means.
It is not uncommon for adoption agencies to suggest that prospective adopters wait for a specified period after the end of their attempts to conceive a child before they start the assessment process.
Adoption and Disability
Disability or ill-health are not automatic bars to being approved as adopters. Each case will be considered individually; however, it may be useful to obtain legal advice prior to commencing the approval process if you are not sure whether your personal circumstances could cause complications.
Adoption and Criminal Convictions
Although convictions for certain types of serious criminal offence may prevent an individual from adopting a child, there are few automatic bars to approval. All cases are considered on an individual basis. Again, it may be helpful to take legal advice before embarking on the process in order to anticipate and assess the effect of any complications.
Private adoption, that is arrangements between private individuals without the involvement of an adoption agency, is prohibited in England and Wales and can constitute a criminal offence.
There are a few exceptions to allow for adoption by a child's parent (and/or their partner), guardian or relative.
A relative for this purpose is defined by the Adoption and Children Act 2002 as:
- A grandparent
- A brother or sister, including half-siblings
- An uncle or aunt, including the child's parents' half-siblings and aunts or uncles by marriage or civil partnership
The process for completing a private adoption in permitted circumstances can nevertheless be complex and it is always recommended to take legal advice before embarking upon it.
Adoption and Immigration
It is vital that any adoptive child is eligible to come and live in the UK, both prior to and following any final order. Anyone considering an inter-country adoption should also obtain advice from an immigration specialist to ensure that all of the necessary permissions can be obtained, both in the short and long term.
There have been cases of children being 'stranded' after being refused immigration clearance, and early planning can ensure this does not happen. Here at JMW, we work closely with specialist firms who can provide the necessary advice for prospective parents wishing to adopt from overseas.
Practical Considerations to Consider
As part of the adoption process you will be asked to identify testamentary guardians for your adopted child. It is likely that you will need to prepare a new will at various points in the process in order to protect the future for your adoptive child and any existing children. Our private client team works closely with our family lawyers to help make sure everyone is protected from start to finish and that you all have peace of mind for the future.
Adoption leave is a crucial part of the adoption process. As part of the adoption assessment, the adoption agency will consider what arrangements the prospective adopter/adopters can put in place to ensure they have sufficient time to help settle the child into their new home environment. By law, those undertaking adoption are entitled to adoption leave, although the precise terms - from duration to payment - differ from one employer to another.
Our award-winning employment law team can provide guidance on your entitlement to adoption leave, shared parental leave and flexible working, along with your employment rights in the future to ensure that you can meet the needs of your child.
Why Choose JMW?
The adoption solicitors at JMW are highly regarded throughout the UK and our vast experience in all matters relating to adoption law means we are best placed to provide the expert guidance you need.
We understand that any difficulties relating to adoption can be highly challenging, but our pragmatic yet understanding approach sets us apart and helps you secure the outcome you are hoping for. With our experience and expertise, we aim to make building a family as stress-free as possible.