There has been coverage in The Times and The Telegraph this week about a husband and wife who wish to adopt their foster children but have been told they can’t, because of their views about gay adoption.

We thought it would be useful to give a brief explanation of some legal questions that this story raises :

• When can foster carers adopt the children they are caring for?
• Can gay individuals or gay couples adopt?
• What is the legal background to this case?

You can read the articles in The Times here  : Adoption Banned in “Gay Parents” row, and in The Telegraph here : Christian couple blocked from adoption amid ‘gay parents’ row. Because The Times has a paywall we’re going to draw where we can from the Telegraph article – they are pretty similar in any event.

When can foster carers adopt the children they are caring for?

There are three ways that a foster carer can adopt the children they are caring for :

• by applying to adopt a child in their care by giving notice of intention to adopt under section 44 Adoption & Children Act 2002 (ACA) (private adoption)
• by being assessed and approved to adopt generally, and then being matched to the child (agency adoption)
• “foster to adopt” where a child is placed in foster care with people who are pre-approved for adoption if the child can’t go home – we don’t deal with this scenario in this post.

Foster carers who have had the child living with them at all times in the year running up to an application for an adoption order are entitled to give notice of intention to adopt. In practice this means they can give notice to adopt nine months after a child came to live with them, because after they have given notice they must wait 3 months before making the actual application for an adoption order  (they can’t wait more than 2 years). This 3 month wait is to enable the Local Authority* to assess the carers and prepare a report for court.

For foster carers who haven’t had the child living with them for long enough or where there has been a break (or perhaps where a child has been removed) they can ask the court to give them permission to apply for an adoption order, and once they have that they can give notice (and the 3 month wait begins).

Where a couple have given notice of intention to adopt or made an actual adoption application or where they are in the process of asking the court to give them permission to give notice to adopt – there are restrictions on the removal of the child from their placement with the applicants – broadly speaking the child can only be removed if the court says so. But if four months pass from the giving of notice and no adoption application has been made the child could then be removed (Section 36 ACA).

The alternative route is for an individual or couple to put themselves forward to be assessed as adopters alongside all the others going through the process, and if they are successful for them to be chosen (matched) to the children once a placement order has been made (A placement order is an order authorising the placement of a child with prospective adopters for the purposes of adoption). If that happens the child would be “placed” by simply converting the legal status of the placement to “for adoption” and waiting for a period of at least ten weeks (but not more than 2 years) before an application for adoption is made. This route is effectively treating the foster carers in the same way as if they were a family matched to adopt a child they had had no previous relationship with (although of course the fact that the child has a pre-exisitng and tested relationship with them is likely to be quite important when the court is considering whether to make the order or not).

To go back to the beginning of that process, someone who wants to be considered as an adopter would have to register their interest in adoption (this is different from giving notice of intention to adopt a specific child) under regulation 21 Adoption Agencies Regulations (AAR 2005), which triggers certain “pre-assessment” duties on the local authority (they have to gather basic information, provide information and counselling to the prospective adopters etc so they know what they are in for). The agency must make a pre-assessment decision whether to allow the adopters to go forwards to full assessment, training, counselling etc, or whether to say “sorry, you are not suitable”. They have to make this decision within 2 months. The agency must give its decision and reasons in writing (Reg 27).

Can gay individuals or gay couples adopt?

Yes. Adopters may be single or a couple as long as the adopters are at least 21 years old (there is a slight relaxation where one of the couple is a parent of the child). A couple may be married, in a civil partnership or not married. S144 ACA says that a “couple” means a married couple (which of course can now be same sex), civil partners or “two people (whether of different sexes or the same sex) living as partners in an enduring family relationship”.

Generally speaking, if a person is in a civil partnership or married they cannot adopt as a single person. The adopters must be based in the UK (we’ve simplified this for ease, but that’s the gist).

Section 45 ACA says regulations may set out what should be taken into account when a local authority is deciding what to say to the court about whether or not a couple are suitable. Those regulations are the Suitability of Adopters Regulations (2005) (amended in 2013) (SAR 2005). They cross refer to the AAR 2005 (still with us?).

What is the legal background to this case?

So, we’ve set out (at length, sorry) the legal framework. What is a little bit more difficult to work out is how this all applies in the individual case in the newspapers.

Let’s set out what we know first of all :

There are two children, who were “both of pre school age” at the point when they came into foster care. The children have been cared for by this couple since “the early part of this year” (“early this year” in The Times). It’s November now. So by our reckoning they might or might not qualify to give notice of intention to adopt under section 44 ACA. For example, if they began care on 1 January 2016 by the end of September they would be eligible to give notice to adopt (as they would have had the children living with them for 9 months and for a full year by the time they could apply to adopt, as required). BUT if they began care on (say) 1 April 2016 they couldn’t give notice until the end of December.

The Times tells us that “in mid-October a social worker told them that a gay couple were being put forward to adopt the children. This would involve the two men visiting the family home to prepare the children for their new life.” They go on to say that “Two days after they were told that a gay couple were being lined up as adoptive parents, the husband and wife formally applied to adopt the children themselves.” We’re not quite sure what this means. We don’t think it can mean that the couple have issued an adoption application because on any basis they could not qualify to do that without the permission of the court (and we think if the court were involved the article would say so). So we think it must mean either that the foster carers gave notice under section 44 ACA OR (more likely) registered their interest in adoption.

The Times report that the council “replied” saying “having heard that the prospective adopters were a same-sex couple you shared some opinions in relation to this proposed placement which are concerning and which would not enable the service to progress an inquiry to be assessed as prospective adopters, as these views could be detrimental to the long-term needs of the children”. We think this sounds like a pre-assessment decision letter, rather than an extract from a negative adoption report after giving notice in respect of a specific child (which we don’t think would be addressed to the adopters in this way).

It seems likely from the timescales that the children were removed from their parents and placed with the foster carers at the start of care proceedings, and that placement orders were probably made some time in the late summer or early autumn, enabling the Local Authority to start the matching process and to find the gay couple who they were proposing should meet the children in October. Although the foster carers are reported as saying that “they had expressed an interest in adopting the children several times before, but had been told by their social worker that their house was too small” it seems clear from the article that they had not taken any formal steps until they were told about the proposed gay couple. It’s not clear from the article whether or not their decision to put themselves forward was directly connected to the characteristics of the prospective adopters (although the article implies this) or whether this was simply the first they had realised that the process for adoption was so far forward and it galvanised them into action – but we would be surprised if foster carers did not have some rough idea of the progress of care proceedings and the making of placement orders.

The articles tell us that the adopters are going to “appeal” the decision not to let them adopt. We can’t see anything in the regulations that gives them a right of appeal from a pre-assessment decision, but there might be some other form of legal process the lawyers advising them have in mind (perhaps formal complaint, request for review or judicial review – but really we are just speculating). We don’t think that the Independent Reviewing Mechanism applies to this case as it sounds like a pre-assessment refusal (stage 1), and in any event the article talks of writing to the local authority not the IRM (and the IRM isn’t really an appeal anyway). And we don’t think that you would appeal a negative suitability report – that is a report for the court and is intended to be considered when the adoption application is made, so the adopters would simply make their application for an adoption order and ask the court to make the adoption order anyway, arguing why the report was wrong – there wouldn’t be anything to appeal. So this is another piece of information which points away from the foster carers having gone via section 44 notice to adopt. Although it is fair to say that “appeal” might be journalist shorthand for some less formal challenge that is not technically an appeal, it it is clear from both articles that a journalist has spoken to and obtained quotes from the Christian Legal Centre and the lawyer in question, and it seems likely the terminology has come from them.

It is difficult to express any view about whether or not the local authority was justified in turning down this couple as prospective adopters, particularly since we don’t know anything much about the context of their remarks or the particular background or needs of these children (for example perhaps they were themselves children of a same sex relationship so these issues might have a particular resonance). From the limited information available though, it seems possible that the local authority was worried that they were unable to put their own views aside and to support the plan to introduce the children to the couple who had been matched to adopt them. It is unclear whether or not the children were subsequently introduced and or placed for adoption with the gay couple in question or whether the couple were able to give their support to that, although the impression from the articles is that the children are still with the foster carers. If this is right it appears that the actions of the foster carers may have led to some delay in giving the children a permanent home, which is likely to be really important for children of their age. It is possible that the difficulties led to the loss of a viable placement for the children, and that the children are now waiting for alternative carers to be found. All this might be affecting the local authority’s thinking about how suitable the foster carers are to adopt (or to continue to care for these children). All we can really say is that it seems possible that the local authority have justification for deciding to rule out the foster carers, but it is also possible that they have gone wrong and behaved in a way that was discriminatory as claimed.

It is possible that the children remain with the foster carers because they have given notice to adopt and the local authority are barred from moving the children until the adopters have had time to make their adoption application. But we don’t think that is likely because we don’t think they went down the route of giving notice to adopt. If we are right, there is nothing to stop the local authority from removing the children from the care of the foster carers and placing them elsewhere to get on with adoption, but they would need to do so before they give notice of intention to adopt, which they will be entitled to do soon, if they aren’t already. If the children had already been placed with another family it seems unlikely that the foster carers would be given leave to give notice by the court because of the amount of delay and disruption that would cause – but much would depend on the circumstances.

There is a lot that we don’t know about this case. We might have got some of our educated guesses wrong. But we’ve tried to think through some of the legal alternative explanations and to explain what might be going on. If we see further information about this case that helps to clarify we will either update this post or write a fresh one and cross link, adjusting our explanations as appropriate.

[Update 8 Nov 2016 :  Today’s article in The Telegraph provides a little more information : Christian couple refuse to give foster children to gay parents. So, from the title we can see the children ARE still placed with the foster carers and there appears to be a dispute about that (the article refers to them being told the children would be removed). Secondly, the article refers to a review by the Director of Childrens’ Services, so it doesn’t appear as if there is a court appeal or IRM process ongoing – although it is possible there is some injunctive order in place to prevent removal whilst things are sorted out, this is not mentioned. The article also tells us the reaction of the male carer to the news of the gay adopters was ““you’re joking?”.]

* We’ve used the terms “adoption agency” and “local authority” in this blog post pretty interchangeably. Generally local authorities are called adoption agencies when they are wearing their “placement for adoption” hat, but are sometimes just called local authorities when they are dealing with adoptions via the “notice to adopt” private adoption route. It’s all a bit complicated, and we don’t think you need to worry about the distinction for the purposes of this blog post.