Procedure for Foster Carers who Wish to Adopt a Child Currently in their Care, including Fostering After Adopting

It is important to recognise the differences between different forms of permanence when discussing with foster carers the possible permanence care plans for cared for children.

The key differences between different options are set out below.

If children are living with their long term foster carers the carers never acquire Parental Responsibility. Parental Responsibility is usually shared between birth parents and the local authority (if the child is on a Care Order) or, where the child is cared for under Section 20, exclusively by the birth parents. As a cared for child, the child's plan will be regularly reviewed. As foster carers, the foster carers approval is regularly reviewed. There are statutory visits by social work staff to both the child and foster carers. The Local Authority has a duty to promote positive family time with the childs parents, brothers and sisters and wider family where this benefits the child. The child parents must be consulted about major decisions affecting the child's life.

Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replace Contact Orders and Residence Orders. Parental responsibility is shared between the person holding the CAO and the parents.

A Child Arrangements Order means a court order regulating arrangements relating to any of the following:

• With whom a child is to live, spend time or otherwise have contact; and
• When a child is to live, spend time or otherwise have contact with any person.

The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged either by the Court or by making of a Care Order.

The 'contact' aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.

A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.

Child Arrangements Orders are private law orders, and cannot be made in favour of a local authority. Where a child is the subject of a Care Order, there is a general duty on the local authority to promote family time between the child and the parents. A Contact Order can be made under Section 34 of the Children Act 1989 requiring the local authority to allow the child to have family time with a named person.

A court which is considering making, varying or discharging a Child Arrangements Orders, including making any directions or conditions which may be attached to such an order, must have regard to the paramountcy principle, the 'no order' principle and the welfare checklist under the Children Act 1989.

A Special Guardianship Order lasts until the child is 18. Like a Child Arrangements Order, Parental Responsibility is shared between birth parents and the holders of Special Guardianship Orders. However, a Special Guardianship Order has more legal security in the sense that birth parents can only apply for the discharge of a Special Guardianship Order with the consent of the court. Holders of Special Guardianship Orders have slightly more decision making authority e.g. they can consent to the child leaving the country for up to 3 months, whereas with a Child Arrangements Order they can only agree to the child leaving the country for a month without the consent of the court. Children who are subject to special guardianship are entitled to a leaving care service. At the time of the making of a Special Guardianship Order, the local authority are required to detail any special guardianship support plan agreed with the holders of the order. The carers may be entitled to a means tested SGO allowance. See: Applications for Special Guardianship Orders Procedure.

An Adoption Order removes Parental Responsibility from the birth parents and invests all Parental Responsibility with the adopters. An Adoption Order is irrevocable. Prior to adoption the local authority have to agree an adoption support plan with the adopters, detailing the support to be available to the adopters, child and birth parents (including other birth relatives). An Adoption Order has implications for birth children of the adopters, as adopted children have the same inheritance rights as birth children within a family. There are no restrictions on how adopters exercise their Parental Responsibility. Under certain circumstances adopters may receive financial support in the form of means tested adoption allowances.

In considering the most appropriate route to permanence, professionals need to consider which order best meets the identified needs of the child now and continuing into adulthood.

In considering the most appropriate order the needs of the child are the paramount consideration. Staff will also consider:

• The likely need for ongoing social work support and the value of a Care Order in 'protecting' the child;
• The Proposed level of the child's ongoing interaction with their birth family once the order is made and any complications this may pose;
• Critically, the effect of the order now and when the child reaches the age of 18.

There are of course many other factors to consider.

This protocol deals only with foster carers who wish to adopt. In these circumstances two options are open to the carers:

• Making a direct application to the court:
• Seeking to be assessed and approved as adopters by the local authority and the child being placed with them for adoption by the local authority (agency adoption).

If any child has been living with foster carers for a year or more the foster carer can make an application to court for an Adoption Order. This is described as a "non agency adoption". The implications of this are that the foster carers will not be entitled to any form of post adoption allowance nor is it required to have an Adoption Support Plan.

If foster carers chose to make a direct application, the child's social worker is required to complete a suitability report (Annex A - all sections). This report analyses the strengths and vulnerabilities of the application.

In completing the suitability report the child's social worker will consult with his/her team manager, the Fostering Service and the Adoption Service, the child's independent reviewing officer, birth parents and others, in order to determine the recommendation of the local authority in respect of the application.

In some situations it may be appropriate to encourage foster cares to make a direct application. It is possible the adoption can be secured more quickly using this route, particularly if the child is not already subject to a Placement Order.

Although there is no requirement for a post adoption support plan and no adoption allowance is payable, it does avoid the need for the local authority to assess the foster carers as prospective adopters.

If the child is not already subject to a Placement Order it also means that there is no necessity to return to court for a Placement Order.

These factors must be carefully balanced by social work staff when discussing options with the foster carers. Social Workers need to ensure that they are aware of the regulations around non-agency adoptions and advise the foster carers accordingly. The child's Social Worker and carers should consider the impact a non-agency adoption may have on meeting the likely need of the child and adoptive family for adoption support. The child may have a reduced entitlement to Services in the future if they have not been 'placed for adoption' by an Agency.

Advice may also be sought from the Adoption Service Manager and Fostering Service Manager.

It is important to note that if foster carers apply to the court for an Adoption Order, the child may not be removed from them without the permission of the court. If foster carers apply to the court for an Adoption Order to prevent the child being removed, immediate legal advice should be sought.

Foster carers may express an interest in adopting a child who they are caring for.

• When the Agency Decision Maker has concluded that the child should be placed for adoption but the child is not yet subject to a Placement Order. It is important that the consideration of this expression of interest takes place at the pre-match stage in order not to delay the care plan for the child. As such foster carers should be specifically asked as part of care planning up to 'should be placed' decisions;
• Where the child is the subject of a Placement Order;
• Foster carers may not have expressed an interest prior to the Agency decision makers 'should be placed for adoption' decision, but later feel they could offer permanence via adoption. This request should be considered alongside the child's needs, other family finding attempts and any changes of circumstances;
• Any expression of interest received at a later stage will be considered at a specific care planning meeting and only be agreed if it can be demonstrated to be in the child's best interests. The carers fostering social worker will provide a report setting out the reasons for the late interest and whether or not they support this to the care planning meeting;
• Where there is no adoption plan for the child but foster carers wish to adopt to secure the child's long term future in their family.

If a foster carer indicates an interest in adopting a child they are caring for, the child's social worker should inform their Team Manager who in turn should inform:

• The Fostering Supervising Social Worker;
• The Adoption Recruitment and Assessment Team Manager.

The child's Team Manager will arrange a care planning meeting including the people named above as well as the child's IRO. The meeting will decide whether the foster carers are a suitable option to be considered and whether an initial viability assessment should be undertaken.

Factors which may influence a decision not to explore the foster carers as an option may include:

• Geographical location and the risk from the birth family;
• Ability of foster carers and to meet the child's needs on a long term basis;
• Health of foster carers and contingency support network;
• The progress of the adoption plan for the child e.g. has an adoptive family already been identified.

There should be clarity regarding whether the child would meet the criteria for an Adoption allowance. The foster carer must be informed verbally and in writing of the outcome of this initial consideration including the reasons for the decision.

In this situation two decisions must be made:

• Is adoption the best plan for the child?
• Are the foster carers appropriate adopters for the child?

The two decisions are inextricably linked. If adoption with the current foster carers is not viable then it is unlikely that adoption is appropriate for the child.

The child's social worker should prepare a report for their Service Manager analysing the advantages and disadvantages of the child being adopted by the current foster carers. It would be expected that this would follow consideration at the child's cared for review and will include the views of the Social Worker Fostering. The factors which should be considered include (not intended to be an exhaustive list):

• The child's view of adoption;
• The birth family's view of adoption;
• The child's understanding about adoption and how this will change the nature of his relationship with his birth family;
• The level of family time between the child and his birth family;
• The views of the foster carers' family members;
• The views of the Fostering Social Worker.

The Childcare service manager will then consider whether a plan of adoption is likely to meet the child's needs if the foster carers were approved as adopters. They may wish to seek consultation/advice with the Adoption and Fostering Service Managers in making this decision. The foster carers will be informed of the decision in writing by the Childcare Service Manager. If the decision is that it would not be appropriate, then the process would cease. The foster carers would have the right to appeal to the Childs Service Manager.

If the decision is that adoption is an appropriate plan then a viability assessment as detailed in the previous section should be conducted.

It is important during this assessment the foster carers should be informed and consulted about the most appropriate way for the application to be considered; either through a direct application to court or through the application for a Placement Order.

Please see: Viability Report for a fostering family requesting to adopt a child.

Where a foster carer has adopted a child, it is important for the adopted child and their welfare and needs to be given first priority in the family over other cared for children. This will be different for each and every adopted child as they are unique and have their own specific history and individual needs. This can also change over time and so is not a static decision.

A Foster carer seeking to adopt a child may already have other cared for children living in the home or have existing links and commitments to regular overnight stays for other children. Unless there are insurmountable reasons identified in the specific care planning and viability reports (discussed in Section7 of this policy) why this is no longer viable the foster carer will be supported to continue in their role. 

As a service we are mindful that adopted children can find it very difficult to live in a family where other children come and go and may struggle with family life of foster carers. We also recognise that foster carers have a level of training and understanding and experience to bring to both settling a child into their newly adopted life alongside fostering other children. This is why each decision about foster carers continuing to Foster is made on an individual basis including information from all involved within their network. There are too many variations both in the child's needs, experiences and situations and in the foster carers experience, ability and situation to make a general rule.

For some Foster carers it is the right course of action to either leave their role or take a break from fostering other children for a time. There is no set time, as each child and family need to be considered individually.

Where the plan is a break in fostering, or that the carer continues to foster a fostering review should take place prior to the child being 'placed' for adoption. This review will take into consideration the views of the carer and their birth children in the home, the adoption social worker, the social workers of any other cared for children living in the home, and their IROs. The recommendation to the review will (as with any fostering review) also be based on the Fostering social workers knowledge of the foster carers and their ability to manage the child's needs alongside other children, whilst continuing to meet the National minimum standards. It will consider whether any additional support is needed to enable this to be successful. 

This review will be chaired by the Fostering IRO and the recommendation will be presented to the agency decision maker.

Where a break in fostering is recommended, the Fostering service will continue to support the carer through to re-engaging with active foster care in a planned way. This will include a fostering review (as the family dynamic will have changed) and the views of the adoption support team will feed into this review. 

The needs of the adopted child and the impact of continued fostering will be kept under review and will be considered (and views gained) as part of the carers ongoing fostering review process. 

Where a Foster carer has resigned to adopt a child, should they wish to return to the Fostering role in the future the Fostering team will need to reassess them based on their current family situation. This assessment will include a consultation with the Adoption Support service to fully consider the potential impact on the adopted child, including any current adoption support needs.

This approach is agreed by the Adoption and Fostering services as essential in ensuring the needs of adopted and foster children are met in the families we have entrusted with their care.