One of many questions facing prospective adoptive parents is whether they need to obtain the consent of the birth parent or parents of the child to be adopted.
The issue of consent can arise in many different situations where there is a prospective adoption of a child, examples of the different scenarios include:
- where a husband seeks to adopt his wife's child;
- where there is adoption from a fostering placement;
- adoption as part of a permanence order with authority to adopt; or
- extended family members seek approval to adopt following a kinship placement.
In each of these scenarios, the consent of the birth parent has to be considered. The reason why consent is important is that, once granted by the court, the adoption order has the effect of transferring all rights and responsibilities in respect of the child to the adoptive parent or parents.
What if the birth parents consent to adoption?
If the birth parent(s) agree that adoption should take place then their consent shall be recorded and the adoption will proceed without any requirement for them to participate further. The court will still consider whether or not the proposed adoption is in the child's best interests and should proceed.
What if the birth parents don't consent?
The law in relation to consent is contained in section 31 of the Adoption and Children (Scotland) Act 2007. The court must be satisfied that:
The birth parent(s) understand what the effect of an adoption order would be and that they consent to the order; or
That the birth parent(s) consent should be dispensed with by the court (i.e. consent is not required)
Why would the court dispense with consent?
The court can proceed to make an adoption order without consent if any of the following factors apply:
- The birth parent(s) is/are dead;
- The birth parent(s) cannot be found;
- The birth parent(s) are incapable of giving consent;
- If the court determines that the birth parent(s) are unable to satisfactorily discharge their parental responsibilities or exercise their parental rights in relation to the child and are likely to continue to be unable to do so; or
- If the birth parent(s) do not have parental rights/responsibilities in relation to the child and are unlikely to obtain them.
In addition, the court has the broad power to dispense with consent if they consider that adoption is required for the child's welfare.
How does dispensing with consent work in practice?
A recent decision of the Sheriff Appeal Court gives an insight into the fact finding process which the court undertakes when deciding if the consent of the birth parent in an adoption should be dispensed with.
In this case, the child's maternal grandparents wanted to adopt their three-year-old grandchild, whom they had cared for since birth. The child's mother and father refused to give their consent to the adoption. The Sheriff heard evidence from all relevant parties and decided that the consent of the birth parents could be dispensed with because they were not exercising their parental rights and responsibilities nor were they likely to. The Sheriff also decided that even if the birth parents could at some point exercise their rights and responsibilities, the welfare of the child would be best served if the need for the birth parents to consent was dispensed with and the child adopted. The birth parents appealed this decision. The appeal court agreed that the Sheriff was right to dispense with their consent.
What factors does the court take into account in deciding to dispense with consent?
The Sheriff in this case thought carefully about the following factors (which are not exhaustive):
- What is best for the child's long term future?
- Is an order that the child lives with the prospective adopters (a residence order) enough?
- Are there options short of adoption which would meet the child's welfare?
- If the birth parent(s) have failed to exercise their parental rights and responsibilities in the past, does that mean that they will not be able to in the future?
The appeal court agreed with the Sheriff's decision in this case to dispense with the consent of the birth parents. The appeal court reiterated that past failures by the birth parents are not sufficient to establish inability to exercise parental rights and responsibilities in the future. They have to be linked to prospective inability to exercise them in the future.
Examples of the types of failures to exercise parental rights and responsibilities could include:
- Failing to exercise contact with the child despite arrangements in place for contact;
- A history of failure to care adequately for the child (or other children);
- A chaotic lifestyle that prevents the birth parent(s) from being able to exercise their rights or discharge their responsibilities in a meaningful way;
- A background of a failure to be involved in the child's life or upbringing
We must remember that an order for adoption will only be granted if there is no realistic reasonable alternative. This analysis looks to the future but is informed by what has occurred in the past. In this case, the Sheriff very carefully considered whether the adoption order was the best result for the child. He recognised that adoption would give the family and in particular the child a clear way forward without having to be involved with the Children's Hearing and the Court system and that adoption would give legitimacy to a valuable and stable family unit for the child now and in the future.
A high test for good reasons
Adoption is important to both adoptive and birth families for many reasons – perhaps most of all is the fulfilling the need for children to be a part of a family and have consistency throughout their life.
It can be very difficult for birth parents to consent to an adoption order and it is for that reason that the law allows courts to weigh up all of the advantages and disadvantages to a child of adoption and to dispense with consent if they consider the very high tests set down by the law are fulfilled.
Get in touch
This can be a nerve-wracking time for all parties involved – we are experienced in helping prospective adoptive parents and birth parents navigate the process and would be happy to have a confidential chat. Please get in touch.