Adopting in a pandemic
The pandemic has touched every aspect of our lives, including how prospective parents can adopt.
Adoption is a varied and broad area of law. Working on these cases during a pandemic with multiple lockdowns has brought an extra layer of complexity.
Stepparent adoptions are uncommon. They arise when the partner of one of the biological parents wants to adopt the child. The consequence of stepparent adoption is the other biological parent loses their parental responsibility.
These applications are usually made where an absent biological parent has little or no involvement in the child’s life for some time. The other biological parent is in a new relationship and their partner has taken on the parenting role.
There can be a reluctance to issue the application as it may result in the other biological parent seeking contact, which they otherwise would not have done.
Where the non-resident parent has relatively regular contact with a child, the court tends to be slow to make the adoption order given the serious consequence of the loss of parental responsibility.
There are exceptions, for example, if the non-resident parent supports the adoption; however, even then, the court will decide whether to grant the adoption order the weight it deserves.
An application for a stepparent adoption involves numerous parties: the stepparent (the applicant); their partner (the first respondent); the child’s other biological parent (the second respondent); and a guardian can be appointed to represent the child.
Other professionals involved in the case will be the judge, legal representatives, the local authority who will produce the initial report and, often, a reporting officer.
Race for time
In the early stages of the pandemic, getting applications for stepparent adoptions issued became difficult as the family court was (and still is) prioritising work. This delay directly impacted one of my cases where, for various reasons, the application was processed the day before the child’s 18th birthday.
Adoption applications can only be made if the child has not reached 18. Provided the application is made before the child’s 18th birthday, it can proceed. If the child turns 19 during the proceedings, an adoption order cannot be made.
This meant we had to ensure the application was dealt with before the child turned 19. Usually, that wouldn’t be too much of a concern as there are timeframes the court follows to ensure cases involving children are dealt with as quickly as practicably possible.
However, the family courts were stretched before covid-19, and the delays have noticeably worsened over the past year.
In this case, several factors caused delays. When the local authority produces its report to the court in adoption cases, with its recommendations, safeguarding checks are carried out at the same time.
Unfortunately, in this case the local authority failed to do these checks. We were notified of this just before the first hearing, causing a delay of several months while they were carried out.
Due to their complexity, adoption cases are dealt with by higher-level judges. There is also a preference for judicial continuity, but this can cause delays due to judicial availability.
The first hearing was adjourned four times, once due to the local authority and three times due to the judge’s availability.
Again, this wouldn’t usually be too concerning, but we only had a 12-month window to ensure the order was made. The application was issued in early summer, but by January the following year we still hadn’t had the first hearing - giving little time for the next steps.
Usually, the local authority report is filed at court but not released to the parties immediately, although a request can be made for it to be released before the first hearing to speed the process up where time is sensitive.
In this case, the judge gave permission to have the report released in advance of the first hearing, so the contents could be considered in advance. If this request hadn’t been granted, we would have had to attend the first hearing in order to have the report released, consider the report and then have another hearing to review the next steps.
This would have inevitably caused a delay of at least a month. By having the report released early we reduced the number of subsequent hearings required, which reduced the risk of the matter not being finalised before the child turned 19.
This case also involved international elements as although both the biological father and mother consented to the adoption order, they lived abroad in separate countries with the applicant stepparent and the child living in England.
This was a complicated setup. One of our challenges was to show the court and the local authority that the applicant and first respondent met the condition of being a married couple. They were a family unit but lived separately for various reasons, visiting each other every six weeks where possible (though covid-19 had meant this wasn’t possible over the past 12 months).
They met the criteria of the child having lived with the applicant for six continuous months before the application, but more detailed information had to be provided regarding the intricacies of the relationship between the applicant stepparent and first respondent.
The judge also wanted a guardian’s report on the international element, as there were three parties living in three different countries, despite everyone consenting to the application and the local authority supporting it.
The guardian’s role was to report on living arrangements and take the necessary consents from the parties. They confirmed they were satisfied the order should be made.
Obtaining proper consent
During the pandemic, giving consent via video call has been permitted. However, as the first and second respondents lived outside of the jurisdiction, this was not possible under Family Procedure Rule 14.10.
At this point, every country had different rules regarding covid-19, so there were concerns as to whether the first and second respondents would be able to ensure their consent was executed properly: we were unsure whether they would have access to someone who met the criteria.
Thankfully, the consents were executed and sent to the court; and the adoption order was made two months before the child’s 19th birthday.
Managing adoption hearings
Another issue I’ve experienced over the past year (and expect to in the future) is the practicalities of a court hearing.
There are numerous parties and professionals involved in an adoption case and family courtrooms are not particularly large, especially when accommodating social distancing.
Last October, one of my adoption hearings required nine people to attend. The hearing proceeded as a hybrid hearing with the local authority joining via video link. Because we were in a Nightingale Court (a large hotel conference room) there was, thankfully, enough space for the hearing to proceed safely.
I suspect if we hadn’t had the use of the Nightingale Court we would have had to limit who attended the hearing, which could have resulted in complaints about fairness.
Adoption in the future
While the pandemic has brought challenges to the adoption process, I am hopeful we will eventually return to normal, although I expect it won’t be as quick as we all hope.
It’s hard to see how the adoption process could be made easier. Adoption has huge legal implications, so there must be a stringent process. I would like to see cases dealt with more quickly but it is difficult to balance speed and the need to ensure the right decision is being made for a child.
Shanika Haynes is a senior solicitor at Stowe Family Law stowefamilylaw.co.uk