Practice and Procedure – PLWG Best Practice: A Guide

Moving onto the third article in a series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 3 of the PLWG report. This section covers a wide area of issue regarding practices and procedures in adoption proceedings. The current practices are often slow, confusing, and, in any event, distressing for those involved. This chapter seeks to improve best practice within the current framework, and advocates for reconsideration of the law where longer term issues need addressing.

As with all articles in this series, this will follow the general chronology and sub-headings of the report to ensure consistency and to break the report down into a more bite sized and user-friendly guide as to what the report recommends.

To avoid confusion with the duplication of headings and sub-headings, Chapter 3 of the PLWG report sets out the current practice and procedure, and notes the problems with these, and then, later in the report, under headings named the same, makes specific recommendations – this format has been followed within this article.

Background

Placement and adoption applications are currently governed by the Adoption and Children Act 2002, the Family Procedure Rules, and the Adoption Agency Regulations. In the past 20 years, there have been no substantial or material changes to the law or procedure for adoption.

Most of the recommendations in the report related to detail of the process and procedures, rather than the substances. An area where concern is continually raised is applications for leave to oppose adoption orders, providing parents the ability to oppose an adoption order when they are already placed for adoption. The overwhelming majority of these cases fail, and some have suggested removing this ability to oppose; others have pointed out that legal aid changes mean parents may now be assisted to realistically oppose applications.

Another common area of concern raised to the PLWG is that regarding Rule 19 applications (pursuant to FPR r14.21), notably with respect to wider family in relinquished baby cases.

Finally, specific attention has been given to the issues raised in Somerset County Council v (1) NHS Somerset Clinical Commissioning Group and (2) The Primary Cohort Children [2021] EWHC 3004. Recommendations are also made from the Cumbria Child Safeguarding Practice Review and Child Safeguarding Practice Review Panel.

Applications to Oppose Adoption Orders

Where a placement order has been made, the next steps is to place the child for adoption. This can be a very long process, for some there will be no placement found (often resulting in a revocation application).

Once the child is placed and sufficient time has passed, an adoption application will follow. Notwithstanding there being a placement order, the parents will be served with the adoption application, including offering the chance to oppose the application.

Many parents, quite understandably and obviously, tick ‘yes’.

Per s.47(7) ACA 2002, the court can only allow an application to oppose if there has been a change in circumstances since the placement order. This requires a two stage test. First, there must be a change in circumstances, but, and crucially, secondly, the court must be satisfied in any event that it is in the child’s best interests to grant to application, considering the child’s entire life. If, and it is a big if, the parents are granted leave to oppose, the application becomes fully contested.

Almost all parents are unrepresented at the time  off service of the adoption application. Parents will unlikely be aware of the tests involved, nor will they necessarily understand the process to oppose, many parents failing to file a specific application (thought Judges often do not insist on compliance due to the circumstances).

Given the circumstances, many parents do oppose the adoption order without considering their case, resultingly, the majority fail. As the PLWG report note:

“Many judges have contacted the group to express concern that this process is inhumane and damaging. They consider it creates false hope and further pain for birth parents at the same time as delay for the children.”

Given these applications are permitted by statute, any significant change would require Parliament to amend the legislation. The Working Group recommend that it may be beneficial to wait to see whether there is any impact from the changes to legal aid funding for parents opposing application will have any significant change.

Applications to Oppose – Notification of Fathers and Wider Family

Ss.19-20 ACA 2002 provides that, a mother who relinquishes a child may consent to their adoption. There is a procedural issue whereby putative fathers and wider family members are not routinely notified of the application.

s.19 provides that a child may be placed for adoption where each parent has consented to the adoption. A parent, pursuant to s.52(6), means a parent with parental responsibility. The overriding principles in s.1 are fundamental to adoption applications, notably, the Court must have regard to the welfare checklist, including the child’s relationship with relatives. Such relatives being defined in s.144 as grandparents, siblings, aunts and uncles.

FPR r14.21 provides*:

“Where no proceedings have started an adoption agency or local authority may ask the Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.”

*It should be noted that the online versions of the FPR note applications must be made to the High Court under the inherent jurisdiction, this has been removed by virtue of the Family Procedure (Amendment) Rules 2020 No.135, but this change has not been reflected in the online version of the Rules.

The procedural lacuna arises from the reference only to fathers without parental responsibility, there being no reference to any wider family members. As such, an adoption agency must have regard to the child’s welfare with the wider family, but there is no clear pathway to seek directions on this issue.

The Court of Appeal grappled with this issue in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 4, noting that the welfare of the child is not the key test, rather, it is an exercise of balancing the rights of the family members and the child, whilst welfare plays an important role, the Article 6 and 8 rights of those who can establish potential family life will be a vital consideration.

Placement Applications

A placement application will often be made alongside care proceedings. S.22 ACA 2002 requires a Local Authority to issue such proceedings if:

1. The child is placed for adoption or is accommodated;
2. No adoption agency is authorised to place the child for adoption;
3. The child has no parent or guardian, or the child is suffering, or at risk of suffering, significant harm (s.31(2) CA 1989); and
4. The Local Authority is satisfied the child should be placed for adoption.

There are exceptions to the above, notably where the child is living with somebody who has already given notice to adopt the child (s.22(5) ACA 2002).

The placement application is made via Form A50, along with: the child’s birth certificate, a statement of facts giving detail about the case, any relevant Order, any parental consent document.

The Local Authority must also prepare an Annex B and this is governed by FPR PD14C. It provides that an Annex B should contain three distinct sections, providing sufficient information as to the following.

Section A: Report and Matters for Proceedings – This should include the details of the author of the Annex B, including their qualifications and experience. Information should also be given as to whether there are others who should be made respondents to the proceedings.

Section B: Child and Birth Family – This section is designed to provide information to the Court, adopters, and importantly the child, as to their background, likes, dislikes, and siblings. There is also information provided about the parents of the child (including a photograph of them). Further information is provide as to the child’s wider relationships, their wishes and feelings, and contact arrangements leading up to and following adoption.

Section C: Recommendations – This section is for the Local Authority to set out their case for what should happen to the child, evidently noting the merits of the placement order and future contact.

Whilst placement applications are often made within care proceedings, and they are often dealt with alongside the care case, they remain distinct proceedings. Placement Orders, if made, will very likely be made at the final hearing in the care case, such that a Final Care Order and Placement Order will be made on the same day. Resultingly, most early Case Management Orders now provide directions to a Local Authority in respect of issuing placement applications.

It is extremely time intensive for Local Authorities to issue placement applications, with a separate A50 and supporting documentation being required for each child, as opposed to applications for care orders which can be made ‘in bulk’. Further, the Local Authority plan for adoption must be ratified by the Agency Decision Maker (“ADM”).

 Whilst it raises significant emotions for parents, the benefit to the placement proceedings running alongside the care proceedings is that the parents will benefit from legal aid and be represented at these hearings. The Working Group recommends that there should be a leaflet which explains the placement process and how it relates to adoption.

A Local Authority or the child has an inherent right to apply to revoke the placement application; parents may also make sure an application, but only with the permissions of the court. As previously noted, this will only be allowed where there has been a change in circumstances.

Should a substantive revocation application be pending, the Local Authority may not place the child for adoption without court approval. Revocation applications will often delay permanency for the child, particularly if they are made once family findings has been successful. That being said, the PLWG notes that this should not be changed, explaining:

“There are cases where it is entirely proper for the parents to be able to challenge the placement of their child. Unlike applications to oppose an adoption order these are usually not prompted by the court process itself and the issue of delay is a matter for the judge determining the application for leave.”

Adoption Applications

An adoption order will have the effect of severing legal ties between the child and their biological family, as such, there are various steps which must be taken before an application can be dealt with. These steps vary depending on whether the application is via an adoption agency or via a private application. All cases have a prerequisite placement time, whereby the child must have lived with the prospective adopter for X amount of time before they can apply, this varies as follows:

• Agency Adoption: 10 weeks
• Parent or partner of parent: 6 months
• Foster Parent: 1 year
• Any other person: 3 years

Agency adoptions are such that the prospective adopters have been approved and matched by a panel prior to the child being placed with the proposed adopters.

Regulation 24 of the Adoption Agencies Regulations 2005, requires the Local Authority to provide appropriate preparation to prospective adopters. As noted in earlier chapters of the report, concern has been raised about the consistency and level of training provided to adopters. Concern was raised to the Working Group with respect to suitability and matching reports varying considerably across agencies.

In non-agency adoptions, whereby a ‘private’ individual applies to adopt a child, the applicant must give the Local Authority notice of at least 3 months that they intend to adopt the child. In Re A [2020] EWHC 3296, the Court held that non-compliance with the notice period did not result in an ineffective application.

As with placement applications, the Local Authority must prepare a report, the Annex A. This report has six sections as follows:

Section A: The Report and Matters for Proceedings – This should include the details of the author of the Annex A, including their qualifications and experience. Information should also be given as to whether there are others who should be made respondents to the proceedings.

Section B: Child and Birth Family – This section includes information about the child and each parent for the child. It also includes details of the important relationships to the child, contact arrangements, and the views of the child. There is also a summary of the actions of the adoption agency.

Section C: Prospective Adopter – This section provides detail about the prospective adopter, most notably their suitability to adopt the child. It should explore whether the prospective adopter will follow the wishes of the child, parents, and guardian in matters such as religious and cultural upbringing. Further, the section explores the prospective adopter’s reasons for the child.

Section D: The Placement – This section provides information regarding the placement and the timescales for support post adoption.

Section E – Recommendations

Section F: Further Information for Convention Adoption – This section only applies where the adoption relates to a Convention Adoption Order, s.84 Orders or s.83 adoptions. This section must comply with FPR PD14C.

It is important for a prospective adopter, in a non-agency case, to issue their application in a timely manner following notification to the LA. Failure to do so may result in the Annex A being out of date by the time of proceedings, risking delay in proceedings for an updated report to be completed.

Issuing the Application

The applicant must issue three copies of Form A58 along with the relevant forms. Directions will be made and a first hearing should be listed within 4 weeks. It is common for first hearings to be on the papers instead of an attended directions hearing.

There is confusion with the adoption forms, however, the Working Group is hopeful that the Reform Programme will aid in this aspect given that the applicant will be supported by prompts when completing the application online. The Working Group recommends condensing the existing consent forms into a single one.

Where possible, the Annex A should be lodged with the application to prevent delay; the PLWG notes that doing so may reduce the application time by half compared to cases where the Annex A is issued only following the first case management order.

Case Management

As noted, most initial hearings will be heard on the papers, with Judges providing directions without a hearing pursuant to FPR r.14.6(4). The Working Group recommends this practice should continue, with most hearings being suitable to be dealt with on the papers, reducing pressure on listing the hearing and avoiding delay.

FPR r14.8 notes the matters that the Court must consider when giving directions, this includes setting the timetable, requirements for any reports, party status for the child, directing tracing, and setting out directions for the final hearing. The initial case management orders vary across the country, and a standard order would be helpful

Final Hearings & Celebration Hearings

Where time to appeal any opposition to the adoption application has expired, the Working Group consider that there should be a block listing of final hearings to allow these to be made in bulk. A template order should be created for this.

A celebration visit is a hearing sometimes offered where the adoptive family attend the Court and formally ‘celebrate’ the granting of the adoption order. There are significant concern and risks with such visits. The adoptive family would be attending a family court with other parents engaged in care and adoption proceedings, possibly leading to upset for both families; it is possible even that the adoptive family could come into contact with the birth family.

The Working group noted also that:

“The point was also made that the word ‘celebration’ can be inflammatory from the viewpoint of the birth parents.”

Whilst these are legitimate concerns, the celebration hearing is an important steps in the adoption process. There was concern raised that some families had to travel considerable distances to courts across the country.

Other Areas of Concern

The PLWG noted several areas of concern that, whilst beyond the scope of the report, were of such importance that they felt it vital to flag them. These matters are such that they likely require changes to legislations to address:

• Regulation 23 and 25 AAR 2005 deal with stage one and two checks. Stage one checks are enhanced police checks to assess suitability to adopt, once clear, stage two checks are completed. There is a significant delay in obtaining stage one checks, leaving Local Authority’s in a position where they must either delay the report or complete one without suitable checks.
• A placement becomes an adoptive placement where the match is approved by the ADM; however, time that the child has lived with the applicant under an Early Permanence Placement (“EPP”) does count towards the time spent with the applicant. The Working Group note this should be reflected in update statutory guidance.
• The current guidance implies EPP should be used before the making of a placement order. It is not clear whether EPP can be approved after a placement order or whether it can principally be agreed by the ADM prior to birth. Guidance should be updated to clarify these areas to assist Local Authority’s in adoption planning.
• S.44(3) ACA 2002 provides that the prospective adopter must give at least 3 moths notice to the LA of their intent to adopt, the time limit for notification is capped at two-years. The Working Group note that two years is excessive.
• S.42(3) ACA 2002 provides that a child must live with a step-parent for at least 6-months before they can apply to adopt the child. The Working Group note that this period is not sufficient and should be extended.

Schedule of Recommendations

The Public Law Working Group makes numerous recommendations regarding the practice and procedure in adoption proceedings; these broadly follow the areas discussed above and can be broken down as set out below.

Leave to oppose adoption orders – Recommendations

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 changed the legal aid position in relation to applications to oppose an adoption order. The Working Group recommends that there be a review in 12 months’ time to assess whether the greater availability in legal aid makes a difference to the number of applications made and/or refused.

During this 12 months, records of all applications should be kept and the final review should also allow representations from organisations as to the perspective of birth parents.

A nationally adopted leaflet about the adoption process should be created and provided to all parents on issuing the application. This should include information about the right to apply for leave to oppose and, importantly, the legal test to be applied.

Should a parent give notice they seek to oppose the order, Form FP2 should be sent to the parents, allowing them to formally seek to oppose in the proper form. The Working Group recommends it still be open to the judge to permit applications that still do not use FP2, but encouraging the proper form will aid in applications.

A template statement should be created allowing parents present evidence to support an application for leave to oppose. This template should follow the legal test, allowing parents to set out the changes in their circumstance and why their proposals are in the best interests of the child.

Applications to Oppose – Notification of Fathers and Wider Family – Recommendations

The Working Group note that, since the references to “inherent jurisdiction” and “High Court” have been removed from FPR r14.21, it is not considered necessary to make such applications for a declaration as to notification to the High Court or section 9 Judge. The Working Group does, however, recommend that these applications should be made to the Designated Family Judge who can ensure allocation to a suitably experienced Judge.

Notice of such an application should not be give to fathers without PR or family members until any issues regarding such notice are determined. Applications should be listed for an Urgent Case Management Hearing and matters such as further evidence or appointment of a guardian should be considered.

In relinquished baby cases where the mother does not wish for the father without PR or family to be notified, the Working Group endorses the approach taken by Jackson LJ in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41.

Rule 14.21 should be amended such that it includes reference to wider family members given the adoption agency, and court, must consider the relationship the child has with such relatives.

The English Adoption Statutory Guidance 2013 and draft 2014 version should be updated to reflect the current law and practice. It is noted the guidance was issued before the creation of regional adoption agencies and several significant cases.

Issuing the Placement Application – Recommendations

The PLWG advise that there be changes to advice and guidance in relation to placement applications. The Guidance Notes for completing the Form A50 should be revised to clarify confusion and a new leaflet should be created explaining the process of placement applications (especially where they are issued on a stand alone basis).

There should be a template statement of facts to provide uniformity. The statement should consistently include the nature of the current placement, decision of the ADM, and when parents were informed.

Instead of a separate form being completed to keep a child’s address confidential (Form A65), consideration should be given to amending Form A50 to include this as a section.

The Working Group notes the following as documents which should be lodged with an application for a placement order:

1. Form A50
2. Form A65 where the Local Authority seeks to keep the child’s address confidential
3. Certified copy of the child’s birth certificate (originals are currently required)
4. Statement of facts complying with FPR 14.9 and the above recommendations
5. A copy of any Final Care Order
6. A copy of any Parental Responsibility Order
7. A copy of the ADM decision
8. The Annex B

Case Management

It is recommended that, where applications are received on time, the Court should always acknowledge receipt. Short form standard orders should be encouraged and Case Management Orders should include timing for ADM decisions.

Where ADM decisions are delayed, the ADM should notify both the court and the parents as to the reasons, action being taken to address the delay and the next ADM date.

As above, a placement application leaflet should be created and served upon the parents alongside the application and supporting material. This leaflet should includes information about revocation of placement orders and an explanation as to the legal test.

Applications to Revoke a Placement Order

It was noted during the consultation that the wording of s.24(1) was, in some cases, leading to multiple applications for leave to revoke a placement order from multiple family members. The Working Group recommends that:

“…research be undertaken to establish whether this is a regional or more widespread issue, and to inform whether consideration needs to be given to any reform.”

Applications to revoke a placement Order should be made on the proper form, Form FP2, and this should be sent to applicants following issue. Failure to use this form would not bar an application.

The Local Authority should produce a template letter for parents and the court where the placement circumstances have changed, such as from a foster placement to a prospective adoptive placement. The Local Authority needs to be proactive in advising of such changes.

Annex A and B Reports

The preparation of the Annex B, Annex A, and Child Permanence Report are time consuming and involve repetition across reports. Where simple errors are made, these are likely to be replicated and liable to cause delay to proceedings. The Working Group suggests that reducing pressure on social workers by limiting information repetition could alleviate such errors.

The PLWG recommends that a unified report is created. There is already a combined report for the Annex B and CPR developed by CoramBAAF, but adding in the information from the Annex A would save further time. Streamlining reports must still ensure compliance with AAR and FPR PD14C.

Adoption (Pre-Issue)

The Working Group makes several recommendations in respect to pre-issue matters, aiming to ensure a smoother process and easier process for all parties involved, these recommendations are as follows:

• The Annex A should be prepared before the application is issued so as to streamline the process. It is recognised this requires collaboration between the applicant and the Local Authority.
• Applicants, when giving the Local Authority notice, should advised when they intend to apply to allow the Annex A to be prepared pre-issue.
• Local Authorities should be proactive in communicating with birth parents post-placement and information should be provided to the court advising what steps have been taken to maintain contact, last contact, and last known address.
• A national protocol governing transfer of information between Local Authorities and regional adoption agencies should be established.
• S.19 and s.20 ACA 2002 cases (adoptions by consent) should be revised under a single form designed to address issues of statements and notification of parents.
• To avoid delay in non-agency adoptions, applications should proceed with applications at an early stage after giving notice.
• Where a non-agency application has been delayed, and the Annex A is thus outdated, the Social Worker shall provide a statement confirming any change of circumstances or lack of change.
• There should be a national training and information protocol, specifically addressing the areas of documents, notably those placed before the ADM and Annex A, B and CPR reports. There should also be training on working with applicants.
• A national protocol should be established with the police to ensure more efficient stage 1 checks.
• There should be standard templates for suitability and matching reports.

Issuing the Adoption Application

On issuing an application, it is suggested that the following documents are lodged:

• A58 application
• Birth certificate copy
• Marriage/civil partnership certificate
• Any Deed Poll
• A copy of the Care and Placement Order
• A copy of the placement application statement of facts
• Any consents
• Annex A report
• Any request for DWP disclosure

There should be templates for the initial case management order and final adoption orders to provide for continuity and efficient timetabling through to final hearing. In addition, clear guidance notes should be served on parents alongside the application.

Adoption Visits

There should continue to be the opportunity for adoptive parents to attend court for an adoption visit (also known as celebration visits). These visits are termed differently across regions and there should be continuity across the country, such visits should be referred to as “adoption visits”.

Whilst not all adoptive parents will want such a visit, they must be advised this is an option and the adoptive parents should confirm whether they want to attend such a visit. Courts should take necessary steps to ensure those attending these visits do not come into contact with parties engaged in care proceedings – each court should have a plan on how this will be achieved.

There should be a national protocol to allow a case to be transferred to a local court to allow adoptive parents to attend.

Other Areas of Concern

Parliament should consider whether the AAR 2005 should be amended to make clear that a Local Authority may proceed with stage 2 checks notwithstanding stage 1 checks being outstanding. Stage 2 checks should then be able to be terminated if stage 1 checks come back unsuitable without having to present to ADM or having appeal recourse (as is the case where only stage 1 checks are done and show unsuitability).

Parliament should consider whether to amend s.44(3) ACA 2002 such as to reduce the ceiling for the notice period from two-years to one-year. Any such notice should also be in writing and clearly dated to avoid issues with date of notice.

Parliament should consider whether to extend the ‘live with’ requirement under s.42(3) ACA 2002 to stepparents.

Postscript

In Somerset County Council v NHS Somerset CCG [2021] EWHC 3004 (Fam), several cases were raised where adoption medical reports had not been completed, in breach of the regulations. In order to avoid a repeat of these situations, the PLWG recommends that there should be some written memo (an email exchange sufficing) to confirm who the agency medical advisor is and this memo should be explicit in exhibiting that the medical advisor complies with the Schedule 1 requirements in the AAR 2005.

Several issues came out of the Cumbria Child Safeguarding Practice Review and the Child Safeguarding Practice Review Panel. From this, the Working Group recommends that:

1. The agency medical advisor’s summary report is required for Annex A’s.
2. Adopter’s health is subject to ongoing review in agency applications, as such the medical summary may be older than 3pmonths. Where there is no material change, this can be attached to the Annex A.
3. The prospective adopters’ social worker shall write to the applicants GP and referees before matching panel and application. There should be a standard template letter including a safeguarding statement, relevance of information, and seeking updating in the event of anything new coming to light.
4. There should be a consistent template for the medical advisors summary.
5. The child’s social worker and prospective adopters’ social worker should confirm they have reviewed the medical summary and addressed any concerns.
6. There should be a checklist of document required for ADM. This checklist, and the documents, should be placed before ADM when making the best interests decisions.
7. Local Authorities should ensure quality control mechanisms and team manager and agency adviser reviews of the checklist documents – these mechanisms should reflect the duty in para 1.32 of the 2013 Statutory Guidance on Adoption.
8. Local Authorities should ensure parents are notified of the proposed ADM decision date and a template letter should be created explaining the decision. Similarly, parents should be notified of the outcome.

Conclusion

Chapter 3 of the Public Law Working Group’s report on best practice in adoption focuses on the practices and procedures surrounding adoption proceedings, highlighting the need for streamlined processes that better support children, birth families, and prospective adopters. The recommendations in this chapter emphasise the importance of reducing unnecessary delays, addressing procedural inconsistencies, and providing clarity to all parties involved.

Central to these reforms is the recognition that current practices often create confusion, distress, and inefficiencies, which ultimately fail to serve the best interests of the child. By advocating for national templates, updated statutory guidance, and clearer procedural frameworks, the recommendations aim to ensure consistency and fairness in adoption proceedings.

The PLWG also underscores the importance of keeping children’s welfare at the forefront, making clear that procedural improvements must align with their emotional, cultural, and identity needs. This includes revising outdated systems, ensuring proper training for professionals, and addressing gaps in areas such as the notification of wider family members and the preparation of Annex A and B reports.

Whilst several of the recommendations will require legislative change, adoption systems rooted in these recommendations are more likely to deliver timely, transparent, and child-centred outcomes. By addressing both short-term procedural issues and longer-term legislative reforms, these proposals aim to create a fairer, more efficient adoption framework. Ultimately, this will help ensure that children in adoption proceedings find stability and security in a process that respects their unique circumstances and needs.