Can Adoption Orders Be “Undone”?
The decision to adopt a child is life-changing. There are many important factors that go into the decision to adopt, and for many, there are a lot of questions about the BC adoption process. A significant concern for the child, adoptive parents and biological parents alike is the permanence of an adoption order.
Can adoption orders be “undone” or “reversed”? The answer to that question depends on two key factors: consent and timing; in other words, at what stage of the adoption process you are when this question may arise.
Who Must Consent to Adoption?
BC’s Adoption Act sets out who must consent to a child’s adoption. Generally speaking, consent to adoption is needed from:
- the child, if the child is 12 years of age or over; and
- the child’s parents and/or guardians.
There is a special rule regarding a birth mother’s consent to the adoption of her child. It is valid only if the child is at least 10 days old when the birth mother gives her consent.
If the child to be adopted is in the continuing custody of a director of child protection, the only consents required are from:
- the director of child protection; and
- the child, if the child is 12 years of age or older.
The consent of each required person must be in a sworn written document called an Affidavit and must be supported by certain documents. A consent required by the Adoption Act may be dispensed with by application to the BC courts but only in very limited circumstances.
Can Consent to Adoption Be Revoked Before Placement?
Once a person has consented to a child’s adoption, the Adoption Act states that consent can be revoked after the child is placed for adoption but only in the following circumstances:
- By the child at any time before the adoption order is made.
- By any person who consented, but only if the revocation is in writing and received by the BC director of adoptions or the adoption agency responsible for the child before the child is placed with prospective adoptive parents.
There is a limited exception to the rules for timing to revoke consent after placement: a birth mother can revoke her consent within 30 days of the child’s birth, even if the child has already been placed for adoption during that period, but only if the revocation is in writing and received by the BC director of adoptions or the adoption agency before the end of the 30 days.
It is also important to note that different rules will apply to revocation of consent that is given in another jurisdiction. BC’s Adoption Act states that consent may be revoked in accordance with the law of the foreign jurisdiction. It is best to speak to an experienced adoption lawyer to understand rights and obligations in international adoptions.
Can Consent to Adopt Be Revoked after Placement?
After an adoption order is granted, consent to adoption can only be revoked by an application to the Supreme Court. The Adoption Act requires that everyone who consented to the adoption must be served with notice of the court application to revoke a consent. Defects that may invalidate consent include fraud, duress and undue influence. Absent such a defect, BC courts may only revoke consent after the adoption order has been granted if it would be in the child’s best interests to do so.
It is not simply a matter of “I changed my mind.” There would need to be compelling evidence before the court for the adoption to be “undone”. It is important to emphasize that safeguards are built into the adoption process. For example, in the Affidavit providing consent to adoption, the person giving consent must affirm that a social worker or lawyer fully explained the circumstances under which consent can be revoked, that they understand the meaning and effect of the adoption, and that they are signing the consent freely and voluntarily. Independent legal advice is always recommended throughout the adoption process and is typically used before Affidavits of consent are signed by parents and the child.
Are You Looking for Guidance from an Experienced Adoption Lawyer in BC?
Valerie M. Little has over 30 years of experience as an adoption lawyer in BC. If you are ready to adopt or have questions about the adoption process, call Ms. Little today at 604-526-3333 to schedule a consultation. Ms. Little can help you navigate your adoption through the court system by preparing the necessary paperwork, appearing in court to get any orders required, and guiding you through each stage of the process to legally formalize your new family.