Adoption orders: a rare revocation

Revocation of an adoption order is extremely rare, so the recent High Court ruling in of ZH v HS and Ors (application to revoke adoption order) [2019] EWHC 2190 has sparked great interest. In this case, it came to light that the local authority had advised the aunt and uncle of the child that they needed to seek legal advice in respect of caring for the child. The couple did not speak good English and did not have the money available for legal representation. Through a series of errors, the couple unintentionally made an application for adoption. The couple was provided with no legal support from social services and was not advised on what effect an adoption order would have on the child. When the carers of a child wish to make an adoption application they must follow certain procedures, but in this case several were not complied with correctly. Parties must inform local social services that they intend to file an application for an adoption order. This triggers a process in which social services has three months to prepare a report setting out its opinion on the merit of the application. As part of that report, social services is expected to speak with the prospective adopters; the biological parents where possible; and any other biological family who may be affected by the order.

There should be a full assessment of the living arrangements and what the future will be for the child. Social services is expected to ensure the adopters understand the implications of their application, especially in a situation where the parties do not speak good English. Prospective adopters must also satisfy certain requirements before they make an application. These include that the child must have been living with the applicants for more than three years, otherwise they must obtain leave of the court to make the application. This can be difficult where the child is under three years old – but leave to apply is often granted in those situations. If the parents cannot be found, it is imperative evidence is provided by the parties making an adoption application showing steps have been taken to contact the biological parents. This avoids the risk of a biological parent appearing later and challenging the adoption order.

Practical difficulties in following these procedures typically include trying to get the right person at the local authority to look at your application; and taking steps to contact the biological parents when they cannot be found. It is not unusual for the written notice of the intention to apply for an application to not reach the correct department. It is always important to chase this up verbally to ensure the letter is recorded in good time and the report is prepared. If this is not done, the risk is that three months later nothing will have been done. The rules on adoption are robust, however, the court is heavily reliant on social services’ guidance in children matters. When they are presented with a case prepared by social services, it is not unreasonable to expect them to agree with the recommendations of social services. The training social workers receive needs to be changed.

This includes how an adoption application should be processed; and what options other than adoption they can consider when a child is being cared for by other family members. The case of ZH v HS is an example of the effect of a lack of local funding for the local authority and a lack of legal aid for the child’s carers. It is notable that the carers supported the mother’s application to revoke the adoption order; and it was never their intention to replace the biological mother in the child’s life. The situation may also have been avoided had an interpreter been provided – a case perhaps for the rules to be amended where a party’s first language is not English to ensure they fully understand the implication of the order being made. Such pitfalls can be avoided with education and advice, but until local authorities recognise the importance of these applications – cases such as this could happen again.