For you and your family

Adoption and Surrogacy

There are lots of different routes to having a family.  Whether considering  adoption or surrogacy, it is  best to take legal advice early on, as having the right legal information at the start for you and your family, will not only avoid delay but may be the only input from a lawyer you will need. You will also avoid the extra expenses and emotional upheaval later on by avoiding the pitfalls. This is particularly the case when considering adoption or surrogacy abroad. There may also be immigration issues to be aware of and it is always better to know about these in advance. We can assist by providing you with the right advice to assist you plan for  your family, not only have we an award winning Family Law team, but we also boast an excellent immigration department.

To help your initial research, we have put together a number of FAQs. If you want to discuss your circumstances in more detail, please contact the department’s secretary Emillie Hobden eh@freemanssolicitors.net or contact us by completing our online contact form

Adoption

Who can adopt in England and Wales?

Anyone over the age of 21 (18 in some very specific circumstances) who has been ‘habitually resident’ in the UK for at least one year. If you are ‘domiciled’ in the UK (as a couple, at least one of you has to be domiciled in the UK), the one-year UK residence requirement may not be needed (see below Can I adopt in England even if I do not live in England?). Habitual residence and domicile are legal concepts and if you heave any doubt about your position you should seek legal advice.

If you are considering adopting from abroad, additional UK  requirements may apply because you will need to satisfy from an immigration point that on adoption, your child will be able to enter and reside in the UK.

You do not have to be married or in a civil partnership if you want to adopt as a couple – you will need to be in an enduring relationship though.

You can also adopt as a single person but if you are married, you can only adopt as a single ‘adopter’ under very specific circumstances.

Is there an upper age limit for prospective adopters and prospective adoptive children?

For prospective adopters, there is no upper age limit under English law but other countries may have an upper age limit or a maximum age gap between the child and the adopter. You will need to check this in the country you want to adopt from.

Most countries have a central authority for inter-country adoptions and this information may well be available on their websites; alternatively, a local specialist lawyer should be able to give you that information, or the inter-country adoption centre helpline may be able to assist. We have links to lawyers in many countries and can help you find the right lawyer overseas. 

For adoptive children, there is an upper age limit. A person over the age of 19 cannot be adopted under English law, and only an adoption order made in respect of a minor (i.e. under the age of 18) can have the ability to bestow British citizenship on a child if one of the adopters is also a British citizen.

Can I adopt in England even if I do not live in England?

If you are ‘domiciled’ in the UK, you may be able to adopt under English law even if neither of you are present in the UK. The determination of domicile is a legal concept in relation to the ties you have to a country. If you are considering this as a pathway to adopt,  we strongly advise that you seek legal advice first. 

Can I adopt my step-child?

Yes but if a parent objects to the adoption, you may not be granted an adoption order. We can advise on your options and likely chances of success. This is a very specific area of law and if you are considering adopting your step-child, seek legal advice before you start the process.

What is the difference between a Hague and a non-Hague Adoption?

In adoption Law this is a reference to the 1993 Hague Convention on Intercountry Adoptions. The UK has ratified the Convention which means it applies to the UK. If you live in the UK and you want to adopt a child who lives in another Hague Convention country, you will need to follow the procedures laid down by the Hague Convention which includes an assessment and approval of you here. Hague Convention adoption orders are recognised in all Hague Convention states. You can check on the official Adoption Hague Convention website which countries have signed up to the 1993 Adoption Hague Convention.

Whether you  adopt from a Hague Convention country or from (or in) a non-Hague Convention country, you will  need to get yourself assessed and approved here first.

It is not permissible to adopt from every country.  Before proceeding therefore  check the Department for Education website updates as that site provides a list of countries from which adoptions may be banned.

If you live here and have already adopted abroad without having had an assessment here first or if you intend to adopt abroad without an assessment here first, we strongly advise that you seek legal advice as soon as possible.  You should also seek legal advice if you have already identified a child you seek to adopt abroad or if that child is a relative living abroad, is is better to do so  before you embark on any adoption process.

The Hague and non-Hague inter-country adoption process in England is overseen by the Department for Education. 

You can only apply for a Hague Convention adoption if you live in a different Hague Convention country to the child. If you and the child live in the same Hague Convention country, you will not be able to apply for a Hague Convention Adoption Order. However  if your   domestic adoption order is made in another Hague Convention country it is likely to be automatically recognised in the UK. Not all foreign adoptions are automatically recognised under English law.

If your foreign adoption order is not automatically recognised under English law, you may be able to apply to the Family High Court  for  recognition of that order under English law, or in the alternative you may need to re-adopt your child under English law.

On adoption, your child may become a British citizen if you are a British citizen.

I want to adopt from abroad – where do I start?

If you are habitually resident in the UK and want to adopt a child habitually resident in another country you will need to get yourself assessed and approved here first. This applies whether you intend to adopt from a Hague or non-Hague Convention country. Contact your Local Authority for details. They can tell you whether they can and will assess you, or refer you to an approved intercountry adoption agency which undertakes intercountry adoption assessments on their behalf. Often this will be the Intercountry Adoption Centre.

You could also contact the Intercountry Adoption Centre directly and they should also be able to direct you to the right assessment resource, and/or provide you with information about their assessment process, if you live in the ‘catchment’ area. Unlike UK domestic adoption assessments, you will be charged for the assessment and approval as an intercountry adopter.

If you have not undergone an assessment here first (and obtained a certificate of eligibility from the Department for Education which you are likely to need for immigration purposes) you will be barred from bringing your child to the UK within one year of the foreign adoption order, or for the purposes of adoption here.

I have been told I need a Letter of No Objection – what is it?

If you do not live in the UK but want to adopt abroad, you may be asked or advised to obtain a Letter of No Objection.

A Letter of No Objection confirms that a foreign adoption can proceed without reference to English law and/or an assessment here. This will only be possible if the prospective adopter can show that they are not habitually resident in the UK at the time of the proposed adoption. The Letter of No Objection can be issued by a British Consulate abroad or the Department for Education.

You may need legal advice with regards to your habitual residence status before you can obtain the letter of no objection.

What is a Certificate of Eligibility?

The Certificate of Eligibility is issued by the Department for Education to certify that a person or couple have been approved for intercountry adoption. The certificate is issued following an adoption assessment and your approval as intercountry adopter(s) by an authorised adoption agency. The agency will then send your paperwork to the Department for Education for consideration and if everything is in order, the DfE will issue the Certificate of Eligibility,( also known as Article 5 and Article 15 certificate, if the adoption is under the Hague Convention.)

If you live in the UK, have already adopted a child abroad and do not have a Certificate of Eligibility, you should seek legal advice.

You may also be asked for a Certificate of Eligibility if you have lived and adopted a child abroad. It may not be possible or necessary for you to obtain a Certificate of Eligibility retrospectively and you may wish to talk through your options with a lawyer.

It is unlikely that you will be able to obtain a Certificate of Eligibility if you are not habitually resident in the UK.

How do I adopt in the UK?

The same requirements as to residence or domicile apply as above.

You will need to either contact your Local Authority and explore with them how and when they will assess and approve you as a prospective adopter, or you can choose an authorised adoption agency to assess and approve you. Your adoption agency should also guide you through the process of identifying a child in the UK for adoption.

Privately arranged adoptions are not permissible under English law and are a criminal offence, unless between very close relatives. If you think that your plans may fall within a privately arranged adoption, seek legal advice.

If you want to adopt a child who already lives with you, the child has to have lived with you for a specified period before you become eligible to adopt that child. If a child has not yet lived with you for that period (depending on the type of adoption, this can be up to three years), you may be able to apply to the court for permission to start the adoption process earlier.

I am a foster carer and want to adopt a child who lives with me – what do I have to do?

The child may be subject to an interim or full Care Order, if care proceedings have concluded. The child may also be, in addition, subject to a Placement Order, authorising the Local Authority to place the child for adoption.

If a Local Authority has a Placement Order and places a child with you for adoption, or converts a foster placement into an adoptive placement under a Placement order, you can apply for an adoption order once the child has lived with you for ten weeks in total. This is called an agency adoption.

Alternatively, once a foster child has lived with you for one year, you can give notice to the Local Authority in whose area you live (not necessarily the Local Authority who holds a care or placement order) of your intention to adopt that child. If the child has not yet lived with you for one year but you wish to pursue an adoption, you may be able to apply to the court for permission to start the adoption early. Adoptions without a Placement Order are classed as non-agency adoptions.

There are potentially different types of support available for an agency and a non-agency adoption and you consider which route to take, or if you think that the Local Authority will not agree with you adopting the child in your care, seek legal advice first.

You should also be aware that once a child is subject to a Placement Order and placed for adoption with prospective adopters, you cannot legally challenge the placement until an application for an adoption order has been made. So, if you are concerned that a child subject to a Placement Order may be placed for adoption with another carer and object to that, seek urgent legal advice.

Surrogacy

What is a parental order?

A parental order confirms your legal status as parents of your child conceived through surrogacy. It also terminates the legal parental rights of the surrogate (and her husband/civil partner if married or in a civil partnership). Until a parental order is made, the surrogate and her spouse will be the legal parents of the child. 

A parental order can only be made if your child is related to at least one of you.

Only person(s) who are domiciled in the UK can apply for a parental order. If you live here temporarily, you may not be able to apply for such an order. If in doubt whether you would be considered domiciled in the UK, seek legal advice early on.

A parental order can only be made if the surrogate and her husband/civil partner (if married or in a civil partnership) consent. If there is no consent, a parental order cannot be made, and you may have to explore other options, including adoption.

You will need to make the application for a parental order within six months of your baby’s birth. Under exceptional circumstances, the Court has and can accept applications made after that time. If there is any reason as to why you cannot make an application within those six months or if you intend to make the application after the first six months, seek legal advice at the earliest opportunity.

Foreign Surrogacy

A foreign surrogacy (order) is not automatically recognised under English law so you will need to explore your options with a lawyer if you want or need for your child to be also recognised as such under English law, including your standing to apply for a parental order.

You should also seek immigration advice if you consider surrogacy abroad, to ensure that there will be no difficulties in bringing your child back to the UK after s/he is born; and that your child will not become stateless in the process.