Placing Relinquished Babies for Adoption

Statutory adoption guidance sets out a process to be followed in the case of relinquished children under the age of six weeks. This is based on the supposition that the agency is approached in the early stages of the expectant mother’s pregnancy and that her intention to relinquish does not waver. Experience has shown, however, that this does not match the reality, which includes concealed pregnancies and/or late decisions to relinquish a child for adoption. Nor does it recognise that many birth mothers may change their mind about adoption once the child has been born.

The balance between the right of the birth mother to request adoption and the right of the child to be brought up within his/her birth family is often challenging for social workers. Nevertheless, it is clear that the Local Authority is under a duty to do whatever it can to ensure that children are brought up within their birth family if at all possible, and that the child’s welfare must be paramount in all its considerations.

The focus of Nottinghamshire’s work with relinquishing birth mothers is based on the principle that adoption is a service for children and not a service for adults. Whilst the circumstances of mothers who have expressed a wish for their baby to be adopted must be carefully and sensitively considered, every effort will be made to explore the possibility of the mother or father caring for the child, or of the child being cared for within the extended birth family. The process to be followed in such circumstances reflects this approach.

Once prospective adopters are approved, the Adoption East Midlands team will make an assessment of whether they may be suitable to consider a relinquished baby direct from hospital. It is most likely that these will be a small minority of prospective adopters who either have birth children of their own or who have made a second application to adopt. Such prospective adopters will need to be emotionally robust and willing to take an informed risk that the relinquished baby might subsequently be reclaimed by the birth mother.

It is not anticipated that applications will ever be accepted solely for this group of children or that there will be a separate “pool” of prospective adopters for relinquished babies. Nevertheless, the Adoption East Midlands team should always be informed as soon as it becomes evident that a placement will be required for a relinquished baby to see if an appropriate placement might be available when required. As these will potentially become the relinquished baby’s adoptive parents it will be vital that as much background information as possible should be provided for matching purposes.

This chapter deals with the first stage of the adoption process (i.e. identifying that a child should be placed for adoption).

A request to relinquish a baby for adoption will normally be made to the MASH Team this will then be referred to the Assessment Team and a social worker will be allocated to complete an assessment. Consideration should be given as to which team or worker is best placed to deal with the enquiry. Good assessment skills, combined with appropriate knowledge of adoption will be necessary to counsel birth parents on the implications of adoption for the child, themselves and their wider family. To achieve this skill mix, it may be necessary to liaise with the Permanence Team to identify a colleague with experience of adoption, and arrange a joint visit to the expectant mother.

The workers will establish the circumstances of the case and help the expectant mother to consider the possible options for the child’s future care, as follows:

• Staying with the parent or parents with close support where possible (i.e. in a mother and baby fostering placement);
• Short term foster care, with the aim of returning the child with support;
• A permanent placement within the child’s wider family;
• Placement for adoption.

The workers will explain the Local Authority’s obligations under the Adoption Agencies Regulations 2005 to counsel and seek the views of a father with Parental Responsibility. In cases where the father does not have Parental Responsibility, please refer to the guidance set out at Section 3, Counselling the Expected Child’s Father and Others below.

A birth mother may prefer not to disclose the father’s identity. If a mother refuses to disclose the father’s identity, legal advice should be sought without delay. The mother must not be coerced into identifying the birth father.

Legal advice should be sought in cases where the mother does not wish the father (without parental responsibility) or wider family members such as grandparents to be notified of the intention to place the child for adoption (It may be that they are not aware of the existence of the child).

• The avoidance of unnecessary delay. The High Court in A Local Authority v JK & Anor [2021] EWHC 33 stated that '. . . absent good reason to the contrary, a non-notification application should ordinarily be brought within a matter of weeks of the birth, rather than months';
• The need for the adoption agency to explain carefully and sensitively to the mother every staging post of the proposed adoption process and the non-notification procedure, setting out the competing factors and considerations;
• Any other relevant matters must be considered.
  
  The Court of Appeal in Cases A, B and C [2020] EWCA Civ 41 (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020) stated that:
  'While the mother's right to confidentiality is important it is not absolute. The presence or absence of family life is an important, though not a decisive, feature and where it exists strong countervailing factors are required to justify withholding knowledge of the existence of the child and the proceedings. The tenor of the [previous] authorities is that in most cases notification will be appropriate, and the absence of notification will be the exception; but each case will in the end depend on its facts'.

The social worker should explain that if the mother continues to request adoption for her child, a decision will be made by the Locality Service Manager to establish whether or not the baby should be accommodated when born. The distinction between this decision and a decision that the child should be placed for adoption must be stressed to the birth mother.

The social worker should assess as far as possible the likelihood of a birth mother changing her mind about adoption. If the circumstances and expressed wishes of the birth mother indicate that this is unlikely, the social worker should contact the Adoption East Midlands team to establish whether a placement with prospective adopters might be possible.

The social worker should explain to the birth mother that it is sometimes possible to place a baby direct with prospective adopters if the birth mother gives written agreement, and that she would be given the opportunity to meet with any prospective adopters identified. It should be made clear that this agreement is not the same as giving consent to the child being adopted which can only be given once the child is six weeks old, and must be witnessed by a CAFCASS officer (see Section 7, Consent to Adoption below).

The birth mother should also be informed, however, that where it is not possible to place directly with prospective adopters in a foster for adopt placement, the child will be placed with foster carers until suitable prospective adopters can be identified.

It is recommended a pre-birth planning meeting is held prior to the birth of the baby. This will include Permanence Team social worker, safeguarding midwife and birth parents. This meeting will consider any health issues of mother and baby, placement details, contact arrangements after the birth for birth parents and plans for the care of the baby if birth parents are proposing to leave the hospital following baby’s birth.

It may be appropriate to provide pre-birth counselling to the father of the expected child, and any other person the agency considers relevant to the child. Their wishes and feelings regarding the plan for the child will be ascertained and taken into account as the plan is developed.

The child will be either be placed with the prospective adopters if already identified in a foster for adopt placement and with the signed agreement of the birth mother or with foster carers. A request should be made to the placements team for a fostering placement. It is important that such foster carers have experience of caring for children in this situation, and are sensitive to the emotional turmoil of the birth mother in the weeks following birth. Prospective adopters and foster carers should be committed to working closely with social workers and the birth mother to explore the possibility of the child remaining with the birth mother or within the birth family, or moving on to adoption if appropriate.

When the child is born, the birth mother should be encouraged to register the birth and name the child.

The baby will be placed with either the prospective adopters identified, with the signed agreement of the birth mother, or with foster carers.

The social worker will counsel the mother to confirm whether she still wishes to place the child for adoption. The mother will be given an explanation of all procedures relevant to adoption, and the legal implications of adoption. The agency will ensure that her wishes and feelings are ascertained.

A father with Parental Responsibility has equal rights to the mother and, so far as is reasonably practicable, the obligations to counsel and inform apply to him as they do to the mother. Like the mother, his wishes and feelings regarding the child, the child’s placement for adoption and his adoption, including his wishes and feelings about the child’s religious and cultural upbringing, and issues of contact, must be ascertained and taken into account.

Where the identity of a father without Parental Responsibility is known to the agency, and the agency is satisfied it is appropriate to do so, it must carry out the same requirements that would apply if he were a father with Parental Responsibility. The agency must also ascertain if possible whether he wishes to acquire Parental Responsibility for the child or intends applying for a Child Arrangements Order.

The Local Authority is not bound to inform and consult a father without Parental Responsibility in all circumstances. It may sometimes be inappropriate to do so. Legal advice should always be sought before a decision is made about informing and consulting a father without Parental Responsibility.

If a father’s identity cannot be established, the agency should seek legal advice.

For further guidance in relation to the position of unmarried fathers, reference should be made to the statutory Adoption Guidance, paragraphs 35 - 43 inclusive.

The social worker must maintain close contact with the birth mother throughout this time. Every encouragement should be given to her to visit her child in the foster home and to attend reviews. Such arrangements should be as flexible as possible so that no barriers are put in the way of the birth mother developing a relationship with and sense of responsibility for her child.

At the first Statutory Review all the options for best meeting the child’s welfare, including the child’s needs for permanence, should be discussed. If there is still felt to be scope for the child to return home at this stage or members of the extended birth family are being explored, a further review should be convened within an agreed timescale.

To avoid delay for the child, statutory guidance states that an appropriate permanence plan should be identified no later than at the second (four month) Statutory Review. The provisos in 6.1 above should still apply, however, if appropriate. The review should record the reasons for extending this timescale, and set a further date.

Where the Statutory Review considers that adoption is the preferred option, the Permanence Team social worker must begin the Child’s Permanence Report and health report. The social worker must also request a Panel date which falls within 8 weeks of the review. This should be confirmed by sending a task to the Panel Coordinator from the child’s Mosaic file. The Panel Coordinator will arrange a Panel date as close as possible to the deadline and will send the social worker a booking memo and other important attachments which must be acted on immediately.

The social worker should also send the advance notification letter to CAFCASS to alert them that a referral is likely to be made (see Appendix B: CAFCASS - Advanced Notification Letter). This letter can be downloaded from Forms Online (CAFCASS - Advanced Notification).

Please note: the full CAFCASS Protocol for Children Relinquished for Adoption can be found as a Document on the Adoption Service site on the intranet. A flowchart of the process is included as Appendix E: Flowchart of CAFCASS Process.

In the circumstances where the child is being relinquished for adoption, it is assumed that the birth mother will wish to consent to the placement of the child for adoption, and to the making of an Adoption Order. The social worker should confirm that this is the case, and explain that a referral will be made to CAFCASS for an officer to visit and witness her consent once the Adoption Panel has recommended adoption and the agency has confirmed this.

As soon as the agency decision is made, the social worker must:

• Provide a copy of the leaflet “Giving Consent to Adoption” to birth parents with parental responsibility. These leaflets are held in each Children’s Services Team;
• Make a request for a CAFCASS officer to witness consent using the letter at Appendix C: CAFCASS - Notification Letter. This letter can be downloaded from Forms Online (CAFCASS - Notification).

The social worker must send the following information to CAFCASS using the template available on Forms Online (Schedule 2 - Information for CAFCASS):

• A certified copy of the child’s birth certificate;
• Name and address of the child’s parent or guardian;
• Confirmation that the agency has counselled, and explained to the parent or guardian the legal implications of both consent to placement under Section 19 of the Act and, as the case may be, to the making of a future adoption order under Section 20 of the Act, and has provided the parent or guardian with written information about this, together with a copy of this information;
• Such information about the parent or guardian, or other information as the adoption agency considers the CAFCASS officer may need to know.

This is known as “Schedule 2” information (i.e. Schedule 2 of Adoption Agencies Regulations 2005).

If the CAFCASS officer is unable to witness the birth parent’s formal consent, either because they are no longer willing to give this or because their assessment is that the birth parent is unable to give informed consent, CAFCASS will inform the agency of this in writing. The agency will then need to consult Legal Services to give urgent consideration to whether an application for a Placement Order should be made.

If the birth parent initially consents only to placement for adoption (s.19), but subsequently becomes willing to give advanced consent to the making of an Adoption Order (s.20), the agency should contact CAFCASS again using the letter at Appendix D: CAFCASS - Advanced Consent to Adoption. This letter can be downloaded from Forms Online (CAFCASS - Advanced Consent to Adoption Relinquished Baby).

The letter should be sent with an addendum to the Schedule 2 information previously provided to CAFCASS (see paragraph above).

Consent and Competency

The Local Authority as the Adoption Agency must be sure that the parent or the guardian is competent to give consent.

During the counselling sessions, care should be given to identifying whether the parent(s) are capable of giving consent, especially if there is evidence of: learning disabilities; mental health issues; cultural, ethnic or faith issues; consent being given conditionally, etc. Where there is concern as to the parent’s understanding, an additional and specialist assessment should be sought from another professional - preferably someone who already knows the parent, such as an approved mental health social worker; a disabilities social worker; GP; midwife or health visitor; psychiatrist / psychologist or someone who can offer a faith or cultural perspective.

If the issue of competency is known at the point of referral or at an early stage in the process, then the Local Authority should not ask Cafcass to witness consent, until any such issues are resolved. Where a parent is under 18 years (i.e. considered to be a ‘child’ themselves within the meaning of the Children Act 1989), they can be considered to give valid consent if assessed as competent by the counselling practitioner.

The High Court in Re S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam) made clear that parental Capacity to consent to a child being accommodated under Section 20 Children Act 1989, does not equate to their capacity to consent to an adoption order in respect of the child - the capacity to consent is decision-specific. (That case concerned a ‘child parent’ (i.e. below 18 years of age) with learning disabilities. The principles, however, will be of relevance in considering parental capacity, irrespective of their age).

The court set out the salient or ‘sufficient’ information which is required to be understood by a parent regarding extra-familial adoption:

1. Your child will have new legal parents, and will no longer be your son or daughter in law;
2. Adoption is final, and non-reversible;
3. During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live;
4. You may obtain legal advice if you wish before taking the decision;
5. The child will live with a different family forever; you will (probably) not be able to choose the adopters;
6. You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited;
7. The child may later trace you, but contact will only be re-established if the child wants this;
8. There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted;
9. For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made.

When determining the competence of a parent in these circumstances, ‘all practicable steps’ must be taken to help them to make the decision, for example using simple language, visual aids or other means. A parent will be treated as understanding the information relevant to a decision if they are able to understand an explanation of it given to them in a way which is appropriate to their circumstances.

The decision to consent to adoption is significant and life-changing. Before exercising their decision-making, the parent should freely and fully understand the information set out on the consent forms, which should be conveyed and explained to them in an appropriate way; there is no expectation that the parent would be able to understand the precise language of the consent forms.

If there is any doubt about the competence of a parent to give consent to adoption or placement for adoption, the issue should be referred to a court.

Where it is considered that the parent is not capable of giving informed consent but the Local Authority decide to place the child for adoption following their counselling and assessment, an application for a placement order must be made.

The social worker should explain the importance of the child having information about their family of origin for a clear and positive sense of identity. The birth mother and other members of the birth family should be encouraged to provide background information and photos. Birth mothers may also write a letter explaining their reasons for relinquishing the child for adoption. They should be made aware that their child will have a right as an adult to access information about their adoption and to trace their birth family

Birth parents should be informed orally of the agency’s decision within two working days (by the social worker) and written confirmation will be sent to then within five working days (by the Panel Co-ordinator).

Birth fathers who do not have Parental Responsibility should also be notified if their identity and whereabouts are known, if the agency considers this appropriate.

Two weeks after the letter of notification has been sent to the birth parent/s, the Panel Co-ordinator will send a letter and leaflet about the Independent Birth Family Counselling Service.

This service is provided by an organisation called Adoption Plus. Birth parents will be able to contact the Counselling Service direct or ask their social worker to do this on their behalf. In either case the social worker will be asked by Adoption Plus to provide basic information to enable the first meeting between the counsellor and the birth relative to be arranged.

See also: Adoption Support Procedure.

The Adoption Support Services Regulations 2005 give details of the services to be provided to birth family members, as follows:

Birth Parents

• Counselling, advice and information;
• Groups to enable birth parents to discuss matters relating to adoption;
• Assistance, including mediation services, in relation to arrangements for contact.

Birth Siblings

• Counselling, advice and information;
• Assistance, including mediation services, in relation to arrangements for contact.

Other Birth Relatives

• Counselling, advice and information;
• Assistance, including mediation services, in relation to arrangements for contact.

Adoption parents will be provided with written information containing details of support groups and services, both national and local. Once the adoption order has been made, they are able to join Adoption Support’s mailing list to receive a regular newsletter and information.

Adoption Support provides advice and counselling via its dedicated phone line and will offer further counselling via appointments if appropriate.

Advice and support can be given to birth family members who wish to write a letter which can be lodged on the child’s file for the future.

Adoption Support is able to access the archived adoption files with a view to providing non-identifying information, and can act as an intermediary in reunions.

Where indirect (Letterbox) contact has been agreed, the Letterbox Coordinator at Adoption Support is available to give advice and support to birth family members. This may be to advise on the content of letters or help in writing the letter. Birth relatives may feel upset, confused or angry about the information they receive and the Letterbox Coordinator will offer support at such times.

If direct (face-to-face contact) has been agreed, Adoption Support can be involved in such arrangements, from giving advice to the actual supervision of the contact if necessary.

Appendix 1: Agreement to Place a Child for Adoption Where the Child is Less than 6 Weeks Old

Appendix 2: CAFCASS - Advanced Notification Letter

Appendix 3: CAFCASS - Notification Letter

Appendix 4: CAFCASS - Advanced Consent to Adoption

Appendix 5: Flowchart of CAFCASS Process