Same-Sex Adoption: Your Family, Recognised in Law

Part of: How to Adopt a Child and Change a Life

Same-sex adoption means a couple of the same sex, or a single lesbian, gay, bisexual or trans person, adopting a child. In England and Wales a same-sex couple has exactly the same right to apply as any other couple. Married, civil partners or living together, the rule is the same (Adoption and Children Act 2002, s.144(4)). Your sexuality is not a test you have to pass.

What changes from family to family is the legal route. A child placed by an agency, your partner’s child, a baby born through surrogacy and a baby born after donor treatment each follow different law, with different time limits. This guide sets out each route. It sits within our guide to how to adopt a child and change a life.

Worried an agency will judge you? You can book a free initial consultation with one of our family law specialists.

Can same-sex couples adopt in England and Wales?

Yes. The Adoption and Children Act 2002 lets a couple apply to adopt together. A couple means a married couple, civil partners, or two people of different sexes or the same sex living as partners in an enduring family relationship.

You will find that definition in section 144(4), and section 49 lets a couple apply jointly. Both of you must be at least 21 (s.50(1)). At least one of you needs a domicile in the British Islands, or you both need a year of habitual residence here (s.49(2) and (3)).

According to GOV.UK, you may be able to adopt if you are single, married, in a civil partnership, an unmarried couple of either sex, or the partner of the child’s parent. There is no upper age limit, and you do not need to be a British citizen.

When did same-sex adoption become legal in England and Wales?

On 30 December 2005, when the joint application rules in the Adoption and Children Act 2002 came into force. Section 49 is the provision that lets a couple, of any sex, apply to adopt together.

You can check the commencement date against section 49 on legislation.gov.uk. Rules on same-sex adoption in the UK differ by nation, because Scotland and Northern Ireland have their own adoption laws. This guide covers England and Wales only.

How does same-sex adoption through an agency work?

LGBT+ adopters apply to an adoption agency, either the council’s or a voluntary agency, and go through the same assessment as everyone else. GOV.UK says approval normally takes around 6 months, followed by matching with a child.

1. You contact an agency. It arranges to meet you and may invite you to a group meeting with other people hoping to adopt. Then it gives you an application form.
2. You attend preparation classes, and a social worker visits you several times to assess whether you are suitable to adopt.
3. The agency runs a police check, asks for three referees (one can be a relative) and arranges a full medical (GOV.UK).
4. An independent adoption panel reads the assessment report and makes a recommendation. You can attend and answer its questions.
5. The agency decides whether you can adopt, then begins looking for a child who fits your family.
6. Once a child has lived with you for 10 weeks, you can apply to the family court for an adoption order (s.42(2)). The court fee is £212 (GOV.UK).

Expect questions about your relationship, your support network and how you would talk with a child about their story. For unmarried couples, the social worker will look at how long you have lived together and how settled you are. Children adopted from abroad also follow extra rules, set out in our guide to intercountry adoption.

Can an adoption agency turn you down for being gay, bisexual or trans?

No. An agency must not refuse you because of your sexual orientation or gender reassignment. Both are protected characteristics under the Equality Act 2010, and a service provider must not discriminate by refusing you or offering worse terms.

The Act defines them in section 12 (sexual orientation) and section 7 (gender reassignment), and sets the duty on service providers in section 29. An agency can still say no for reasons that have nothing to do with sexuality. You cannot adopt if you or an adult member of your family has been convicted of a serious offence, such as one against a child.

If an agency says no, GOV.UK explains that you can challenge the decision in writing or apply to the Independent Review Mechanism. You can also approach another agency, although you would start again.

Is same-sex adoption the right route for your family?

That depends on how the child came into your family. Adoption is one of four routes. For babies born through surrogacy or donor treatment it is often the wrong one.

Can I adopt my partner’s child in a same-sex relationship?

Yes. A person aged 21 or over can adopt alone if the court is satisfied that they are the partner of the child’s parent, and your partner remains the child’s parent afterwards (s.51(2); s.67(3)(a)).

The child must have lived with you both for six months before you apply (s.42(3)). You must give your council notice of your intention to adopt at least three months, and no more than two years, before the application (s.44(3)). After that, the council investigates and reports to the court.

The order ends the other birth parent’s parental responsibility and cancels any existing order about when that parent sees the child (GOV.UK). For that reason, that parent’s consent normally matters. Also, statutory adoption leave and pay do not apply when you adopt a stepchild (GOV.UK).

Because adoption is permanent, a parental responsibility order or special guardianship can sometimes fit better. Our guide to step-parent adoption vs special guardianship compares them, and our guide to same-sex parents’ rights and parental responsibility covers the other options.

Do you need to adopt after surrogacy or donor treatment?

Often you do not. After surrogacy the usual route is a parental order, and after donor treatment a female partner may already be the child’s legal parent from birth.

If you were married to the birth mother, or her civil partner, at the time of treatment, the law treats you as a parent unless you did not consent (HFEA 2008, s.42). If you were not, you become a parent only after treatment at a licensed UK clinic, with written consent notices you both signed beforehand (s.43 and s.44). Without that, adopting your partner’s child under s.51(2) may be the way to become a legal parent. Our guide to sperm donors and the law explains clinic and private donation.

After surrogacy, a couple can apply for a parental order if at least one of you is genetically related to the baby. You must apply within six months of the birth, the child must live with you, and the surrogate must agree freely and unconditionally (s.54). A single parent can apply under s.54A. However, if neither of you is genetically related to the baby, adoption becomes the route. Our guide to surrogacy laws in the UK sets out the steps.

Same-sex adoption route finder: which law applies to your family?

Three questions point to the route that usually applies, the time rule to watch and the mistake people most often make. Nothing you choose leaves this page.

How does the court decide a same-sex adoption application?

Exactly as it decides any other. The child’s welfare, throughout their life, is the paramount consideration, and your sexuality is not one of the factors on the checklist.

That checklist in section 1 of the 2002 Act includes the child’s wishes and feelings, their particular needs, the effect of leaving their birth family and their relationships with relatives. The court must also keep in mind that delay is likely to harm the child (s.1(3)). Before the judge makes an order, the agency or council must have seen the child with you at home often enough (s.42(7)).

Once the judge makes the order, the law treats the child as born to you, and as the child of your relationship (s.67(1) and (2)). Our guide to adoption orders explains what the order does and how long it takes.

Same-sex adoption: frequently asked questions

General information about the law in England and Wales, not advice on your circumstances.