Section 7 of the Adoption of Children Act (Chapter 275) controls who may be the applicants.
(1) Except as provided by subsection (2), an adoption order shall not be made otherwise than in favour of a husband and wife jointly.
(2) Subject to subsection (3), where the Court is satisfied that exceptional circumstances make it desirable to do so, the Court may make an adoption order in favour of one person.
(3) The Court shall not make an adoption order in favour of one person if that person is married and is not living separately and apart from his or her spouse.
(4) The Court may make an adoption order in favour of a husband and wife jointly notwithstanding that one of them is a natural parent of the child.
Subsection (1) — a married couple, jointly
| Applicant | Permitted? | Provision |
|---|---|---|
| Husband and wife jointly | Yes — the ordinary case | s 7(1) |
| One person, unmarried | Only on exceptional circumstances | s 7(2) |
| One person, married but living separately and apart | Only on exceptional circumstances | ss 7(2), (3) |
| One person, married and living with their spouse | No — absolute bar | s 7(3) |
| Husband and wife where one is a natural parent | Yes | s 7(4) |
An adoption order under section 28 makes the adopted child the child of the adopters as if born to them in lawful wedlock. The scheme therefore assumes two parents.
“Husband and wife” includes a couple married by custom, since section 3 of the Marriage Act gives a customary marriage full validity.
Subsections (2) and (3) — one person
Adoption by one person is not simply an alternative. The Court must be satisfied that circumstances make it desirable — and those circumstances must be exceptional.
Situations that have that character include a relative who has raised the child alone after the parents’ death, a person adopting an adult they brought up under section 6(1)(b), and a case where a joint applicant has died during proceedings.
Whatever the circumstances, section 5 governs: the welfare and interest of the child is the paramount consideration.
A married person living with their spouse cannot adopt alone. The words are “shall not”, with no exception.
The reason is practical. If a married person adopts alone, the child joins a household in which one adult is a legal parent and the other is a stranger in law. The Act requires the couple to apply jointly, so both assume the responsibility.
Where the spouses are living separately and apart, the objection falls away, and subsection (2) may be used — still on exceptional circumstances.
Subsection (4) — adopting your own child
The Court may make an adoption order in favour of a husband and wife jointly notwithstanding that one of them is a natural parent of the child.
Without subsection (4) there would be a difficulty: a natural parent cannot sensibly “adopt” their own child, yet section 7(1) requires a joint application.
Subsection (4) resolves it. A mother and her husband may jointly adopt her child, making the step-father a legal parent while the mother remains one.
Two consequences follow:
- Section 15(3) — a person’s consent is not required if that person is an applicant. So the mother does not consent to her own application; but the other natural parent’s consent is still required unless dispensed with under section 21.
- Section 9(4)(b) — no medical report is required where the adoption is by two persons one of whom is a parent or relative of the child.
Section 8 likewise relaxes the age requirements where at least one applicant is a natural parent, and section 16(2) allows a consent expressed in favour of a parent or relative rather than a general consent.
It permanently ends the other natural parent’s legal relationship with the child under section 28 — including any maintenance obligation, any right to apply for a parenting order, and the child’s rights of inheritance from that parent’s family.
Which is why the consent of that parent is required, and why dispensing with it under section 21 demands one of the five specified grounds.
Sources
- Adoption of Children Act (Chapter 275) — ss 5–9, 15, 16, 21, 28
- Marriage Act (Chapter 280) — s 3
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.