Adopting a child from foster care

What is adopting a child from foster care?

Adopting children from the care system is a complex legal process. It is important to note that not all children in care are eligible or suitable to be adopted.

The Child and Family Agency is currently in the process of introducing a Permanency Planning Policy. The objective of permanency planning is “to provide children with the opportunity of reaching their full potential in a safe and secure base and secondly, to prevent drift in care when other more appropriate care solutions could be sought. A key component of permanency planning is concurrent planning which is an approach that involves social workers considering and pursuing all reasonable permanency options at the same time for children as soon as the children are admitted to care”. Permanency planning does not change the Agency’s responsibility to pursue family reunification. What it does do is require that social workers concurrently and actively pursue an alternative form of permanence”. Adoption is one of these permanency options.

When is adoption considered in the long-term care plan for a child in care?

Adoption as a permanency option can be considered when all the following criteria have been met:

All other care options have been considered and deemed inappropriate to meet the child’s long-term care needs i.e., going home to birth family
It is a proportionate response to meeting the child’s long term care needs and
It has been agreed at the Care Plan Review meeting that the child should be adopted

Adoption should NOT be considered as a permanency option where:

the child does not want to be adopted.
the child and birth family have a significant attachment and it would not be in the child’s best interest to end the legal relationship through adoption.
the assessment of the child’s needs indicates that the child’s best interests are best served in the care of the State.

There are a number of different Tusla Social Work teams involved in progressing adoption applications for children/young people in foster care by their foster carer/s. These are:

The Adoption Service
The Children in Care Service
The Fostering Service

Legal Framework

Legal Changes to Adopting children from the care system

The Adoption Amendment Act 2017 arose from the outcome of the 2012 Children’s Referendum and subsequent amendment to the Constitution (Article 42A). This changed the balance between children’s and parents’ rights and is altering the position of adoption within the care system on a practical and legal basis. This amendment to Article 42A now affirms the “natural and imprescriptible” rights of the child. It enshrines the principle that the child’s best interests are the paramount consideration in decision making in relation to the child and that their views are to be ascertained and given due weight having regard to the age and maturity of the child.

The result of this constitutional change and the arising legislation is expected to result in more children and much younger children being adopted from the care system. Previously in cases where birth parent/s were not consenting to the adoption Tusla was required to prove that the child’s parents had for whatever reason been unable to exercise their constitutional rights and responsibilities for the child up to their 18th birthday. The recent legal changes mean that Tusla is now required to prove that there is “no reasonable prospect” of the parents’ resuming care of the child. Once this threshold is met a child can be adopted at any age up to their 18th birthday. All of the threshold criteria under Section 54 (as amended) must be met.

The Amendment to Article 42A of the Constitution and supporting legalisation have significant implications for social work practice and care planning.

Granting an Adoption Order

The child needs to be eligible for adoption, (that is they must be under the age of 18 years and resident in the country), it must be in their best interests and be a proportionate means of meeting their needs.
The foster carers must meet the requirements of eligibility and suitability set out in the Adoption Act 2010 Sections 33 and 34. In order to determine this the Adoption Service undertake a robust assessment process which has five distinct stages; the first stage is the enquiry/referral, having received an enquiry/referral the second stage is the preliminary screening which establishes eligibility, the third stage is the formal application from the foster carer/s, the fourth is the initial assessment which further assesses eligibility and additional some aspects of suitability based on application and supporting document and the final stage in the process is the full/final assessment stage which involves completion of all relevant interviews to further establish suitability and on conclusion makes a finding to the Adoption Committee who in turn make a recommendation to the AAI in relation to eligibility and suitability to adopt.
The consents/consultations with the child’s birth parents carried out by the counselling social worker must be carried out in a manner which will enable them to make a full, free, informed decision regarding the adoption plan. Voluntary relinquishment of parental rights should be the first alternative to be explored. If birth parents are unwilling or unable to voluntarily relinquish their child only then should involuntary termination of parental rights be considered. In those cases, their consents will need to be dispensed with legally by the High Court.

Additional requirements in certain circumstances.

The child is in care for three years whether on a Care Order for that period or a combination of voluntary care and a Care Order as long as the cumulative total is 36 months.
The child is in placement with foster carers continuously for a minimum of 18 months

Assessment Process

Key stages of the Fostering to Adoption Process

There are 7 and in some cases 8 key stages to the adoption application / assessment process:

Stage One: Enquiry/ referral
Stage Two: Preliminary Screening
Stage Three: Formal Application
Stage Four: Initial assessment
Stage Five: Full/Final assessment and Consultation
Stage Six: Adoption Committee
Stage Seven: Adoption Authority of Ireland
Stage Eight: High Court (this stage occurs in certain circumstances which are outlined in the relevant section of this document)

NB: It is important to note that each stage has a particular process which is mapped out below. Multiple factors influence the progression of each stage and at times depending on the age of the child subject to the adoption application one process can commence in advance of the next stage or occur at the same time.

Generally, it can be expected that any adoption process is likely to take up a minimum of two years to complete. Often however, the process can be protracted beyond this time frame due to a number of factors including but not limited to:

Birth parent(s) not engaging, not consenting or cannot be found.
Cases where welfare concerns/allegations have been made and are not yet resolved.
In non-consensual cases it will be necessary for Tusla to present these cases to the Adoption Authority which can, when satisfied with the evidence presented, under S.53 of the Adoption Act (2010) make a Declaration allowing Tusla to apply to the High Court under S.54 to dispense with parental consent. Once the High Court has made a ruling there will then be a further 28 days to enable birth parent(s)/guardians to appeal the decision before the Adoption Authority will be allowed to make the Adoption Order.

NB: As a consequence of the above, it must be emphasised that enquiries/ referral for adoption should be made as early as possible due to the lengthy time scales involved. In order to give sufficient time for an adoption to be completed prior to a young person’s 18th birthday applications should be made prior to their 15th birthday. While cases of young people who are 15 years and older will be prioritised there is a high risk that an Adoption Order will not be granted in time.

Timeframe

non-custodial parent(s) does not engage, objects or cannot be found.
welfare concerns/allegations in relation to the step parent or partner which may not be fully resolved.

NB: As a consequence of the above, it must be emphasised that enquiries/ referral for adoption should be made as early as possible due to the lengthy time scales involved. To give sufficient time for an adoption to be completed prior to a young person’s 18th birthday applications should be made prior to their 15th birthday. While cases of young people who are 15 years and older will be prioritised, there is a high risk that an Adoption Order will not be granted in time.

NB: For those applications where the child subject to the application is over 15 years old a completed application form alone will be sufficient to deem the case a formal application.

Granting an adoption order

For an adoption order to be granted, key criteria must be met:

The child needs to be eligible for adoption, (that is they must be under the age of 18 years and resident in the country), it must be in their best interests and be a proportionate means of meeting their needs.
The foster carers must meet the requirements of eligibility and suitability set out in the Adoption Act 2010 Sections 33 and 34. In order to determine this the Adoption Service undertake a robust assessment process which has five distinct stages; the first stage is the enquiry/referral, having received an enquiry/referral the second stage is the preliminary screening which establishes eligibility, the third stage is the formal application from the foster carer/s, the fourth is the initial assessment which further assesses eligibility and additional some aspects of suitability based on application and supporting document and the final stage in the process is the full/final assessment stage which involves completion of all relevant interviews to further establish suitability and on conclusion makes a finding to the Adoption Committee who in turn make a recommendation to the AAI in relation to eligibility and suitability to adopt.
The consents/consultations with the child’s birth parents carried out by the counselling social worker must be carried out in a manner which will enable them to make a full, free, informed decision regarding the adoption plan. Voluntary relinquishment of parental rights should be the first alternative to be explored. If birth parents are unwilling or unable to voluntarily relinquish their child only then should involuntary termination of parental rights be considered. In those cases, their consents will need to be dispensed with legally by the High Court.