Consensual Adoption – PLWG Best Practice: A Guide

And so it was, the final article in my series covering the Public Law Working Group’s recommendations for best practice for adoption. For the final part of the series, we consider Chapter 5 of the report. This section takes a look at adoptions which are processed and ordered by the consent of the biological parent/s, that is, where the parents agree to the child being placed for adoption, or being adopted by a specific individual.

Whilst adoption by consent is an issue which, on the board of adoption matters generally, takes up a small place, it is a vitally important area. The decision to relinquish a baby is a significant and life-changing choice – currently, the availability of expert and professional services to respond to these cases is limited at best.

As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.

Introduction

From 1926, those who cared for a baby who was not their biological child, could acquire an adoption order resulting in those carers legally being seen as birth parents. The 1926 Act ensured that consensual adoption was clearly focused on the child’s welfare and the consent was given fully informed and without reward or payment.

The Act significantly increased the number of children who were adopted, but the societal issues surrounding women becoming pregnant before marriage continued with full force. There were no measures in place to support such women, or even the children.

A 2022 report by the Joint Parliamentary Committee on Human Rights for the years 1949-1976 resulted from the testimonies of women who had their lives damaged by the pressures to ‘give up their baby’ for adoption. As the report summarises:

“Many young women were sent away from home to conceal their pregnancy, and many spent their final weeks of pregnancy and weeks after the birth in mother and baby homes. Some of our witnesses recounted the abuse they faced whilst away from home. We were struck by descriptions of the ways in which the women were being “punished” for what was seen as a transgression. There was an overwhelming feeling amongst the mothers we heard from that their treatment during and after giving birth was deliberate punishment for their pregnancy while unmarried”

Over the years, support increased for single parents, and the pressure on mothers to ‘give up their babies’ for adoption reduced. By the 1980’s, adoptions fell by over half. As of 2015, the number of children being adopted from care hit a high of 5360 and have since reduced continually.

A significant reason for this reduction includes the Supreme Court case of Re B [2013] UKSC 33 and the clarification provided thereafter in Re B-S (Children) [2013] EWCA Civ 1146 – producing the phrase all within the adoption sphere are aware of, “nothing else will do.”

That being said, the PLWG note that:

“Although the numbers are not large, there remains a steady number of cases where birth mothers (sometimes supported by the birth father) seek to relinquish the baby for adoption at birth. A number of these cases involve families who are foreign nationals.”

The aim of the subgroup was to look at this marginal, yet societally and practically complex issue.

Legal Framework

s.19 of the Adoption and Children Act 2002 (“ACA 2002”) sets the framework for consensual adoptions:

“(1)Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child—
(a) being placed for adoption with prospective adopters identified in the consent, or
(b) being placed for adoption with any prospective adopters who may be chosen by the agency,
and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.”

The child’s welfare remaining a considerable factor.

Despite being a consensual process, there remains a significant role for the adoption agency. When a parent approaches an adoption agency to relinquish their child, that agency must offer counselling to explore the options and to understand the process and consequences. Such referrals can come from the mother, the hospital, or a family member or community individual.

Some mothers will not engage in the process, occasionally leaving the hospital alone and avoiding further contact (it is vital to note that no judgment is, or should be, cast upon such mothers, the circumstances and thinking of such women are unlikely to ever be known by any professionals – for most, the decision is as child centred as they come).

Where counselling is engaged in, the Working Group are clear that:

“This requires both experience and expertise and time and resources from the professional providing that counselling as well as sufficient support being available to the professional to ensure the highest quality of practice in enabling these life changing decisions.”

Given the re-structuring of adoption services through Regional Adoption Agencies, uncertainty has developed around who is responsible for certain services. It may not be clear to families who to contact, especially at a time of such struggle, when timeliness is so key.

In 2021, over 200,000 pregnancies were terminated, with the rates for those under 18 dropping. Many professionals are clear that, in a significant number of cases, mothers seeking to relinquish their baby only became aware of their pregnancy late in term. As Mr Justice Holman stated in Z County Council v R [2001] 1 FLR 365:

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies… There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

In Re A, B and C (Notification of Fathers and Relatives) [2020] EWCA Civ 41, the court grappled with the question of whether fathers should be notified of cases where the mother seeks to relinquish their child. The Court of Appeal set out the principles governing such decisions.

1. The law does provide for ‘fast-track’ adoptions where all those with parental responsibility consent. The mothers Article 8 rights can only be infringed where necessary.
2. The nature of adoption is capable of justifying the overriding of those rights, but turns on each case.
3. The decision is one which requires priority, urgency, and thoroughness.
4. The Judge must establish the facts as clearly as possible. The reasons for such relinquishments must be treated respectfully, but their account must be scrutinised given it is one sided, as such, as much information should be gathered without breaching confidentiality.
5. There must be struck a fair balance between those interests involved, with the welfare of the child being important, but not paramount.
6. There is no single test for all cases, but key themes will be relevant:
   • Only where compelling should a father who holds parental responsibility not be notified.
   • The more established the family life (Article 8), or potential such rights, the stronger the reasons to withhold notification.
   • The substance of the relationships between interested persons must be assessed, ensuring those who are silent are given a voice. Essentially, if their voice were known, what may the person say.
   • Is there a realistic family placement. If there clearly no viable placements via the father’s family, the need to maintain confidentiality are strengthened.
   • The impact on the mother is key. Where she would be at serious risk (such as sexual assault or honour based violence) this must weigh heavily. However, short term difficulties must not prevail.
   • Cultural and religious factors must be considered, particularly where these connections may be important for the child as they grow.
   • A mother cannot be forced to provide confidential information, including the details of the father. The court must consider the likelihood of the confidential information becoming known at a later date.
   • Whether notification will delay the outcome for the child, whilst not a key factor, it is important to consider the impact such delay may have.
   • All other relevant matters, axiomatically, are relevant.

Despite the clear guidance from the higher courts, there remains an issue of the procedure not being complied with; in A Local Authority v C , M and The Prospective Adopters [2023] EWFC 17, by the time of final order, proceedings had lasted 20 months. Such cases are, of course, very difficult and, as noted by the Working Group:

“…there is a risk that pregnant women who face very high hurdles in placing the baby for adoption may choose not to cooperate with the local authority or worse still to give birth in secret.”

Similarly to adoption agencies, CAFCASS also play a significant role in consensual adoption. CAFCASS have issued thorough guidance on good practice in these cases, notably, this sets out the information which should be provided to birth parents in reaching a decision about the child’s future and ensuring that the decision is made such that it can be implemented lawfully with the future consequences being fully addressed.

The PLWG note that:

“Birth parents considering adoption, need to have access to independent legal advice in order to fully understand their rights and options, including the short and long-term consequences for them and their child (and indeed other children that they may have). For those unable to pay, public funding is very restricted however, costs can be covered by the Regional Adoption Agency or local authority.”

Recommendations

Given the marginal nature of consensual adoption, the recommendations of the Working Group are similarly slim, however, the issue is an exceptionally important one and it is vital that decision making is properly informed and progressed properly. As such, the PLWG recommend that:

1. There must be focussed training for adoption workers on relinquishment cases. Given these situations are rare, when they do arise, there is often nobody experienced able to deal with them.
2. There should be a national strategy for relinquishment cases, with agencies establishing clear plans and principles.
3. Where possible, pre-birth planning should take place, this could include the need to apply to the courts as early as possible.
4. Early Permanence Placements should be considered for babies relinquished at birth.
5. There should be regional hubs created to provide information and expertise to parents, with longer terms support being available, including, where appropriate, securing the maintenance of relationships between the child and birth parents.
6. The consent forms which are signed by parents should be reviewed to ensure they are as clear and as straightforward as possible.
7. Legal aid should be available for parents considering relinquishing their baby. This should be available both before and after birth.

Consultation Replies

“The consultation responses were diverse in their focus and comprehensive in their recommendations. It is clear that a number of the issues identified in the responses were seen to be a priority.”

Challenges to the current adoption system include: modernising contact post adoption; the proper processing and availability of access to adoption records; and the pressures on adoption professionals, including financial constraints on the public sector.

With respect to adoption by consent, the responses identified a fall in referrals regarding unplanned pregnancy. This fall appears to result from a) a reduction in women coming to the UK from Europe; and b) women at university accessing effective contraception and/or abortion services.

Unplanned pregnancies are a stressful experience and can cause a significant crisis for the women and those around her, including the father. There are also practical concerns, notably income, housing, and lifestyle changes. Most importantly, of course, are the needs of the child and their experiences.

The limited number of cases is having a noticeable impact on the availability of quality services where such cases do arrive, given the ability to adoption services to develop clear expertise in this area is low. The PLWG reports that adoption judges in Birmingham responded to the consultation, noting that:

“We see relatively few applications for adoption by consent. Our experience in Birmingham is the same as elsewhere in that social work managers are under considerable pressure. In addition, social work managers are often relatively inexperienced, compared to 10 years ago […] There are a small number of cases. We agree that as a result, there are limited opportunities to build expertise.”

This reinforces the need for focussed training for social workers and CAFCASS to be able to deal with consensual adoption cases. It is important to remember that, at the centre of each case, are the individual women faced with such life-changing issues, this demands expert professionals.

The absence of localised expertise and experience is significant, this requires coordinated practice improvement across the board, to ensure that services are able to provide:

• Individualised information
• Services which enable workable solutions for the families
• Legal support
• Healthcare support
• Practical support

As noted by the Working Group, this is a serious challenge, but:

“…a humanistic society does have a duty to provide support in finding workable solutions for individuals faced with life changing circumstances, both mother and baby.”

Conclusion

The PLWG’s recommendations on consensual adoption highlights the need for a more structured, supportive, and informed process for birth parents who choose to relinquish their child for adoption, whatever the reasons may be. While such cases are relatively rare, they are nonetheless important and present unique challenges that demand specialist knowledge and careful handling to ensure that both the rights of the parents and the welfare of the child are properly safeguarded. The report’s proposals focus on improving the accessibility of information, enhancing professional expertise, and ensuring that decision-making is fully informed and lawfully implemented.

The overarching recommendation is the need for dedicated training for adoption professionals, given the infrequency of these cases. Without a pool of experienced practitioners, the risk of procedural missteps and inadequate support increases (a matter we see more routinely with international cases). Establishing regional hubs and national strategies would provide a more consistent and reliable framework, ensuring that those faced with the life-changing decision of relinquishment receive expert guidance, legal support, and practical assistance, or those dealing with such cases able to access specialist oversight.

The issue of parental consent in adoption is particularly sensitive, requiring careful balancing of the mother’s right to privacy with the need to ensure that all relevant parties, including the father and extended family, are considered. The case law underscores the importance of a fair and thorough assessment, ensuring that mothers who wish to maintain confidentiality are afforded appropriate protections while still prioritising the child’s long-term welfare. The provision of early permanence placements and clearer consent forms would further streamline this process, reducing delays that can be distressing for both birth parents and prospective adopters.

A central concern is the lack of accessible and independent legal advice for parents considering relinquishment. The recommendation that legal aid should be available both before and after birth is an essential and logical step towards ensuring that parents can make informed decisions without financial barriers or this additional worry. Without this safeguard, there is a risk that decisions may be made without a full understanding of the consequences, leading to potential legal challenges or later distress for birth parents and children alike.

Although consensual adoptions form a small proportion of adoption cases, their significance cannot be overstated. The decision to relinquish a child is profound, and the adoption system, especially practitioners, simply must be equipped to provide the necessary legal, emotional, and practical support to all those involved. The Working Group’s recommendations, if implemented, would create a more robust system that respects the rights of birth parents while ensuring that every adopted child has the best possible start in life.