Post-adoption contact arrangements

In a recent conference convened by Coram BAAF, Lord Justice MacFarlane, president of the Family Division discussed the case of Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29 - the first to come before the Court of Appeal following the implementation of Section 51A of the Adoption and Children Act 2002. He confirmed that Re B had not changed the legal position regarding post-adoption contact orders and gave his view that "any move towards greater openness and flexibility in post-adoption contact arrangements must come organically, on a case-by-case basis, in a manner that brings prospective adopters along on a consensual basis".

The Adoption and Children Act 2002 sought to address issues of contact in recognition of the fact children were much older at adoption than had previously been the case, and therefore were more likely to have established links to their birth families. Sections 26 and 27 of the act place a duty on the court to consider contact arrangements for birth families and their children when making a placement order. When making an adoption order the court must consider whether there should be arrangements to allow any person contact with the child. The aim is for contact arrangements to be agreed by the parties but if that is not possible, an application can be made to the court for a contact order. It is unusual for the court to make such an order, especially against the wishes of adoptive parents.

Section 9 of the Children and Families Act 2014 introduced two new sections (51A and 51B) into the Adoption and Children Act 2002 that creates a statutory framework for post-adoption contact. A section 51A order can provide for, or prohibit contact with, specified individuals, including any blood relatives or relatives through marriage or civil partnership. Anyone seeking an order for post-adoption contact must obtain the court's leave to pursue their application. The court must consider the extent to which allowing such contact would disrupt the child's new life and result in harm, the applicant's connection to the child, and any representations made to the court by the child or the adoptive family.

Contact arrangements

Traditionally, contact arrangements with birth parents have usually been indirect rather than face-to-face. Many families participate in "letterbox contact", once or twice a year, which involves the mediated exchange of information between the adoptive family and the birth parents. However, the use and impact of social media over recent years has increased the likelihood of adopted children and/or birth parents finding out information about one another in an unstructured and unregulated manner which can disrupt existing placements.

In a speech at the Nagalro annual conference in March 2018, Lord Justice McFarlane encouraged all those involved in adoption planning to "focus more on the issue of contact and to ask, in each case, whether the model of life-story work and letterbox contact is in fact the best for the individual child, or whether a more flexible and open arrangement, developed with confidence and over time, may provide more beneficial support".

The case Re B involved the birth parents of "B", whose disabilities impeded their ability to care for their daughter and, following care proceedings, care and placement orders were made for B. B had been placed with foster carers called Mr and Mrs X who were then approved as her adopters. During the course of the adoption order proceedings, the birth parents sought ongoing direct contact with B for one hour twice per year. Mr and Mrs X opposed this but instead suggested that contact should grow organically from indirect letterbox contact to annual face-to-face meetings between B's birth parents and adoptive parents - the idea being that these meetings might include B in the future "once a trusting relationship had been established".

Changing views?

The Official Solicitor, acting on behalf of B's mother, argued that the legislative change brought by section 51A should be seen in the context of its purpose "to reflect the changing view about the benefits of greater openness in adoption" and highlighted recent social work research which emphasised the importance of contact after adoption. The judge in the Family Court accepted this but reminded that "each case is very different on its facts" and the court must "carefully consider whether it would be in the child's best interest to keep [the] door to the original family open through indirect and direct contact".

In the Court of Appeal, Lord Justice McFarlane stated that the new legislation has not changed the position as set out in case law and that "save for there being extremely unusual circumstances, no order will be made to compel adopters to accept contact arrangements with which they do not agree". The appeal was dismissed but the case is a reminder of the importance of raising the issue of post-adoption contact at every stage of care, placement and adoption proceedings.

POINTS FOR PRACTICE

Any social worker, children's guardian or expert who is required to advise the court on the issue of contact should ensure that they are fully aware of any current research and its potential impact upon the welfare issues in each particular case.

The following were proposed as good practice in relation to post-adoption contact - while not formally endorsed by the Court of Appeal, the points ‘soundness' were accepted:

• The court should to provide full reasons in determining any section 26 contact application;
• Sibling contact should be considered as an entirely separate exercise from parental contact;
• An open and frank dialogue between social workers, prospective adopters and birth parents and, if sufficiently mature, siblings about the child's needs should take place, possibly with a face-to-face meeting as in this case.

www.childrenslegalcentre.com