Adopting during divorce

It generally takes between 8 months and a year for a family to go through the adoption process, although it can take longer.  Adopting a child can put a strain on a relationship, as it can be an emotional time filled with ups and downs. But what happens if you separate from your spouse during the adoption process? And can a divorce affect the finalisation of the adoption? Read on to find out.

If you have a family issue or child-related legal problem and you require legal advice to understand your options, contact specialist family law solicitor Joanne Major. Joanne is the founder of her specialist family law firm and has spent her 25-year legal career specialising in family and matrimonial cases.

To be considered as suitable adoptive parents, couples, whether they are married or unmarried, need to prove they have a stable and lasting relationship and that they can provide a loving family environment.

In most cases, children in the care system have been through a tumultuous and traumatic experience, so maintaining their wellbeing and acting in their best interest is paramount for adoption agencies and the court. Part of placing a child with adoptive parents is looking at the stability of the couple’s relationship. So, problems in a relationship are likely to be viewed as a concern, particularly as a separation and divorce is so disruptive on a family.

A divorce won’t automatically end adoption, but there is a possibility it could happen. The needs of the child being adopted come first, and the adoption agency or the court may take the view that it will harm the child if the adoption continues. Conversely, the agency must also consider whether stopping the process, especially if the couple has a relationship with the child, would adversely affect them, too.

What are the risks of divorcing during the adoption process?

The following are examples of the ways that divorce during the adoption process may affect the outcome:

• If you are adopting a child from abroad, the birth parent may object and remove their consent. There are countries which will not allow single parents to adopt children and may cancel a pending adoption if a divorce is applied for
• If the birth parent’s rights have not yet been ended by an adoption order, there is a risk they could object to the court to their child being adopted by a single parent or a couple in dispute. If their parental rights have been terminated, the court will consider the impact of the divorce on the adoption.

In a 2015 case, a couple who had separated after being in a relationship still qualified as a ‘couple’ for the purpose of applying to adopt a child. This was the decision of the family court, and involved a same-sex couple who had never become civil partners or married. The distinguishing facts of this case is that one party was the biological mother of the child being adopted. However, the court was satisfied that the couple were living as partners in an enduring family relationship, despite being separated. It also stated there was no rule requiring intimacy, conjugality, or cohabitation to be present in order to demonstrate an enduring family relationship.

The extent to which this case can assist divorcing couples adopting a child placed in care remains to be seen. Whether couples are living in an enduring family relationship is a question of fact and degree for the court to consider in each case.

Can a decision of the adoption agency not to place a child because of divorce be challenged?

The Adoption and Children Act 2002 provides a framework for a review procedure regarding any decisions made by adoption agencies, including issues related to divorce and separation. This gives the prospective adopters the right to request a referral to a panel run by an independent organisation where an adoption panel has indicated it intends not to place a child in their care.