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Adoption and Children Act 2002

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Changes over time for: Cross Heading: Removal of children in non-agency cases

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Changes to legislation:

Adoption and Children Act 2002, Cross Heading: Removal of children in non-agency cases is up to date with all changes known to be in force on or before 28 September 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Changes and effects yet to be applied to the whole Act associated Parts and Chapters:

Whole provisions yet to be inserted into this Act (including any effects on those provisions):

  • s. 4A inserted by 2014 c. 6 s. 5
  • s. 141(7) inserted by 2010 c. 26 Sch. 3 para. 13 (This amendment not applied to legislation.gov.uk. Sch. 3 Pt. 2 repealed (4.9.2013) without ever being in force by 2013 c. 22, s. 17(4) ; S.I. 2013/2200 art. 2(a))

Removal of children in non-agency casesU.K.

36 Restrictions on removalE+W

(1)At any time when a child’s home is with any persons (“the people concerned”) with whom the child is not placed by an adoption agency, but the people concerned—

(a)have applied for an adoption order in respect of the child and the application has not been disposed of,

(b)have given notice of intention to adopt, or

(c)have applied for leave to apply for an adoption order under section 42(6) and the application has not been disposed of,

a person may remove the child only in accordance with the provisions of this group of sections (that is, this section and sections 37 to 40).

The reference to a child placed by an adoption agency includes a child placed by a Scottish or Northern Irish adoption agency.

(2)For the purposes of this group of sections, a notice of intention to adopt is to be disregarded if—

(a)the period of four months beginning with the giving of the notice has expired without the people concerned applying for an adoption order, or

(b)the notice is a second or subsequent notice of intention to adopt and was given during the period of five months beginning with the giving of the preceding notice.

(3)For the purposes of this group of sections, if the people concerned apply for leave to apply for an adoption order under section 42(6) and the leave is granted, the application for leave is not to be treated as disposed of until the period of three days beginning with the granting of the leave has expired.

(4)This section does not prevent the removal of a child who is arrested.

(5)Where a parent or guardian may remove a child from the people concerned in accordance with the provisions of this group of sections, the people concerned must at the request of the parent or guardian return the child to the parent or guardian at once.

(6)A person who—

(a)fails to comply with subsection (5), or

(b)removes a child in contravention of this section,

is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.

(7)This group of sections applies whether or not the child in question is in England and Wales.

Modifications etc. (not altering text)

Commencement Information

I1S. 36 in force at 30.12.2005 by S.I. 2005/2213, art. 2(c) (with savings and transitional provisions in S.I. 2005/2897, arts. 3-16)

37 Applicants for adoptionE+W

If section 36(1)(a) applies, the following persons may remove the child—

(a)a person who has the court’s leave,

(b)a local authority or other person in the exercise of a power conferred by any enactment, other than section 20(8) of the 1989 Act [F1or section 76(5) of the 2014 Act].

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I2S. 37 in force at 30.12.2005 by S.I. 2005/2213, art. 2(c) (with savings and transitional provisions in S.I. 2005/2897, arts. 3-16)

38 Local authority foster parentsE+W

(1)This section applies if the child’s home is with local authority foster parents.

(2)If—

(a)the child has had his home with the foster parents at all times during the period of five years ending with the removal and the foster parents have given notice of intention to adopt, or

(b)an application has been made for leave under section 42(6) and has not been disposed of,

the following persons may remove the child.

(3)They are—

(a)a person who has the court’s leave,

(b)a local authority or other person in the exercise of a power conferred by any enactment, other than section 20(8) of the 1989 Act [F2or section 76(5) of the 2014 Act].

(4)If subsection (2) does not apply but—

(a)the child has had his home with the foster parents at all times during the period of one year ending with the removal, and

(b)the foster parents have given notice of intention to adopt,

the following persons may remove the child.

(5)They are—

(a)a person with parental responsibility for the child who is exercising the power in section 20(8) of the 1989 Act [F3or section 76(5) of 2014 Act],

(b)a person who has the court’s leave,

(c)a local authority or other person in the exercise of a power conferred by any enactment, other than section 20(8) of the 1989 Act [F4or section 76(5) of the 2014 Act].

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I3S. 38 in force at 30.12.2005 by S.I. 2005/2213, art. 2(c) (with savings and transitional provisions in S.I. 2005/2897, arts. 3-16)

39 Partners of parentsE+W

(1)This section applies if a child’s home is with a partner of a parent and the partner has given notice of intention to adopt.

(2)If the child’s home has been with the partner for not less than three years (whether continuous or not) during the period of five years ending with the removal, the following persons may remove the child—

(a)a person who has the court’s leave,

(b)a local authority or other person in the exercise of a power conferred by any enactment, other than section 20(8) of the 1989 Act [F5or section 76(5) of 2014 Act].

(3)If subsection (2) does not apply, the following persons may remove the child—

(a)a parent or guardian,

(b)a person who has the court’s leave,

(c)a local authority or other person in the exercise of a power conferred by any enactment, other than section 20(8) of the 1989 Act [F6or section 76(5) of the 2014 Act].

Textual Amendments

F5Words in s. 39(2)(b) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 195(a)

F6Words in s. 39(3)(c) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 195(b)

Modifications etc. (not altering text)

Commencement Information

I4S. 39 in force at 30.12.2005 by S.I. 2005/2213, art. 2(c) (with savings and transitional provisions in S.I. 2005/2897, arts. 3-16)

40 Other non-agency casesE+W

(1)In any case where sections 37 to 39 do not apply but—

(a)the people concerned have given notice of intention to adopt, or

(b)the people concerned have applied for leave under section 42(6) and the application has not been disposed of,

the following persons may remove the child.

(2)They are—

(a)a person who has the court’s leave,

(b)a local authority or other person in the exercise of a power conferred by any enactment, other than section 20(8) of the 1989 Act [F7or section 76(5) of the 2014 Act].

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I5S. 40 in force at 30.12.2005 by S.I. 2005/2213, art. 2(c) (with savings and transitional provisions in S.I. 2005/2897, arts. 3-16)

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