By Carla Fraser
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What is the legal test for adoption?

His Honour Judge McFarland in a judgment handed down on 4th January 2019 (A Mother & A Health and Social Care Trust & A Father) set out the legal test for an adoption order to be made.

This was a case where PA Duffy & Co Solicitors acted.

In relation to the application to free a child for adoption, Article 9 of the Adoption (NI) Order 1987 provides –

“In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall –

  • have regard to all the circumstances, full consideration being given to –

  • the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and

  • the need to safeguard and promote the welfare of the child throughout his childhood; and

  • the importance of providing the child with a stable and harmonious home; and

  • so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.”

Article 18(1) of the 1987 Order provides “where on an application by an Adoption Agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an Adoption Order should be dispensed with on a ground specified in Article 16(2) the court shall make an Order declaring the child free for adoption.” 

Article 16(1)(b)(ii) and (2)(b) provides that an Adoption Order should not be made unless the court is satisfied that the agreement of the parents to the making of an Adoption Order should be dispensed with on the grounds that each parent is withholding their agreement unreasonably.

The test to be applied in respect of the decision to free any child for adoption is twofold.  First the court must be satisfied that adoption is in the best interests of the child and secondly it must decide that a reasonable parent would consent to such adoption.

Articles 17(3) and 18(3) of the 1987 Order provide that on the making of an order freeing the child for adoption, the parental rights and duties relating to the chid shall vest in the adoption agency (i.e. the Trust), and a further effect is that Article 12 (2)-(4) of the 1987 Order are made applicable thereby extinguishing the parental responsibility of both parents in respect of the child.

I will examine and set out the law on the twofold test in subsequent articles.

If you would like legal advice regarding adoption, please contact our Family law department and we will be sure to reach out to you with further advice.

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