Sandwell Metropolitan Borough Council v GC & Ors

A child under six weeks old may be placed for adoption with parental agreement, including a written agreement under rule 35 of the Adoption Agency Rules 2005. Such early agreement or consent does not, however, satisfy the condition in section 47(4)(b)(i) of the Adoption and Children Act 2002 for making an adoption order. The court must instead consider whether parental consent to the adoption order should be dispensed with under section 47(2), applying the child’s welfare as the statutory basis. Good practice is to obtain formal section 19 consent after the child reaches six weeks, so that a consensual placement can support a later adoption order without further proceedings to dispense with consent.

The local authority sought declarations concerning the validity of the placement for adoption of a baby who was placed with prospective adopters when four weeks old. The mother and father had signed forms described as consent under sections 19 and 20 of the Adoption and Children Act 2002. The section 20 consent was ineffective because it had been given less than six weeks after birth.

The central issue was whether the section 19 consent to placement was also ineffective because it had been given before six weeks, and whether the placement was therefore unauthorised.

1. Authorised placement. The statutory scheme permits the placement of a child under six weeks old for adoption. The placement may be made under a written agreement complying with rule 35 of the Adoption Agency Rules 2005. The mother’s agreement was therefore sufficient to make the placement authorised.
2. Effect on adoption order. Section 52(3) of the Adoption and Children Act 2002 renders ineffective consent by the mother to the making of an adoption order when given less than six weeks after birth. It does not expressly render consent to placement under section 19 ineffective. Nevertheless, section 47(4)(b)(i) requires that, where an adoption order is sought on the basis of parental consent, the mother’s consent must have been given when the child was at least six weeks old. The early consent could not satisfy that condition.
3. Required route. Since the child had not been placed under a placement order and the statutory consent condition was unsatisfied, an adoption order could be made only if the court dispensed with each parent’s consent under section 47(2), on the ground that the child’s welfare required it.
4. Good practice. Adoption agencies should normally obtain a written agreement for placement while the child is under six weeks old and seek formal section 19 consent after six weeks. This preserves the purpose of consensual placement by avoiding uncertainty and later proceedings to dispense with consent.
5. The court left unresolved whether early consent could operate as full section 19 consent for the purposes of the restrictions flowing from that provision, or whether the child remained accommodated under section 20 of the Children Act 1989. The issue was immaterial on the facts.

Declarations were made that the placement was authorised and that the consent of each parent had to be dispensed with before an adoption order could be made. The prospective adopters amended their application accordingly, and unopposed orders dispensing with parental consent were subsequently made.