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President’s Guidance: Listing Final Hearings in Adoption cases

Dated 3rd October 2008

1. This Guidance is issued with the purpose of clarifying the legal requirements and practical arrangements for final hearings in adoption applications.

2. This Guidance does not apply to any case where the child has been freed for adoption under the provisions of the Adoption Act 1976 or where the parent or guardian of the child cannot be found

3. In this Guidance:

(a) “the 2002 Act” means the Adoption and Children Act 2002;
(b) any reference to a rule by number is a reference to the rule so numbered in

the Family Procedure (Adoption) Rules 2005.

4. Section 141(3) of the 2002 Act and rule 31 place an obligation on the court officer to give to the persons listed in rule 31, including birth parent(s) with parental responsibility, notice of the date and place of the final hearing of an adoption application.

5. The requirement to give notice is mandatory. Notice of the final hearing must be given to any person listed in rule 31 who can be found and there is no discretion to dispense with such notice. The provisions of rule 39 (power of court to dispense with service) do not apply to notice of the final hearing. By rule 32(1) any person who has been given notice under rule 31 has the right to attend the final hearing and, except where rule 32(2) applies1, to be heard on the question of whether an adoption order should be made.

6. In some cases the welfare of the child will require arrangements to be made to ensure that the birth parent(s) and the applicant(s) or the child do not meet at or in the vicinity of the court. This will apply particularly to proceedings in which a serial number has been assigned to the applicant under rule 20(2); rule 20(4)(b) provides that, in such a case, the proceedings will be conducted with a view to securing that the applicant is not seen by or made known to any party who is not already aware of his identity except with his consent.

7. Rule 32(6) provides that the court cannot make an adoption order unless the applicant and the child personally attend the final hearing. However, rule 32(6) is subject to rule 32(7), which gives the court a discretion to direct that the applicant or the child need not attend the final hearing; this provision permits the court, where  appropriate, to direct that the attendance of the applicant or the child or both of them at the final hearing is not required.

8. When giving directions for the conduct of the final hearing of an adoption application, the court should consider in particular:

9. In proceedings in which a serial number has been assigned to the applicant under rule 20(2), it will generally be appropriate to excuse the attendance of the child at the final hearing. It may also be appropriate to excuse the attendance of the applicant, if necessary to ensure that confidentiality is preserved. Where in such a case the attendance of the applicant is required, arrangements must be made to ensure that the applicant is not seen by or made known to any party who is not already aware of his identity.

10. In any case in which a direction is given that the applicant or the child need not attend the final hearing, the order and any notice of hearing issued by the court must state clearly that the applicant or the child, as the case may be, should not attend.

11. Each Adoption Centre and each magistrates’ court which hears family proceedings must have arrangements in place to provide information to the relevant parties about any special arrangements made for their attendance at and the conduct of the final hearing.

12. The application for an adoption order should be determined at the hearing of which notice has been given under rule 31. If the application is not determined at that hearing, notice of the adjourned final hearing should be given under rule 31 and this Guidance shall apply equally to the adjourned hearing.

13. Where an adoption order is made in the absence of the applicant or the child, the court should consider making facilities available for a celebratory event. The event should not normally be held before the expiry of the appeal period (generally 14 days). Except in exceptional circumstances, the judge or, in the magistrates’ court at least one of the magistrates, who made the adoption order should host the celebratory event. Arrangements for the celebratory event should be made with the applicant(s) by the court.

1 - A person whose application for the permission of the court to oppose the making of an adoption order under section 47(3) or (5) of the 2002 Act has been refused is not entitled to be heard on the question of whether an order should be made.