Summary of Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 2019
Court of Appeal – Sir Andrew McFarlane P; Lady Justice King and Lord Justice Coulson
This appeal concerns post-adoption contact and it is the first case to reach the Court of Appeal following the implementation of the Adoption and Children Act 2002.
The central question considered by the appeal is whether the introduction into law of ACA 2002, s. 51A has altered the test from that stated in Re R and endorsed by the Oxfordshire case and Re T.
Background
The child, ‘B’, was born in April 2017 to parents who are disabled in respect of their intellectual functioning. The family were assessed within a residential assessment centre but the assessment concluded that the parents were unable to care for their daughter on a long term basis. The child was removed from the residential centre in August 2017 and placed with foster carers who had been approved as prospective adopters.
In September 2017, the local authority applied for an order authorising them to place B for adoption under ACA 2002, s.31. Recorder Norton QC authorised a final care order and a placement for adoption order. The local authority care plan was that the ongoing direct contact between the parents and the child was not appropriate. The parents’ contact reduced over the following weeks with the final contact taking place in November 2017. B’s placement with her current foster carers formally became an adoptive placement in late November 2017.
Also in November 2017, a meeting took place between the prospective adopters and the parents. This meeting went well. In December 2017, the prospective adopters issued their application to adopt B. The parents expressed a desire for post-adoption contact and sought leave of the court to make that application. The parents were granted leave to apply for post-adoption contact under ACA 2002, s51A. HHJ Watson subsequently refused the parents’ application for post-adoption contact. The parents sought permission to appeal which was granted.
Relevant Statutory Provisions
A useful outline of the relevant statutory provisions appears at § 9 – 17 and is copied below for ease of reference.
9. On an adoption agency being authorised to place a child for adoption (or placing a child for adoption who is less than six weeks old), ACA 2002, s 26(1) provides that any contact provision in a child arrangements order under Children Act 1989 [‘CA 1989’], s 8 will cease to have effect; any order for contact to a child in care under CA 1989, s 34 will also cease to have effect in like manner.
10. By ACA 2002, s 26(2)(a), while an adoption agency (in the present case the local authority) is authorised to place a child for adoption, or the child is so placed, no application may be made for a child arrangements order under CA 1989, s 8 containing provision for contact and no application may be made for a contact order under CA 1989, s 34. In such circumstances, by s 26(2)(b), the court does, however, have power to make provision for contact between the subject child and any person named in the order. ACA 2002, s 26(3) gives detail of those who may apply for a s 26 contact order as of right and all others, who must first obtain the court’s leave before applying. In addition, by s 26(4), when making a placement order the court may on its own initiative make a contact order under s 26. ACA 2002, s 27 makes further consequential provision as to contact under a placement order.
11. By ACA 2002, s 27(4):
“(4) Before making a placement order the court must:
(a) Consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and (b) Invite the parties to the proceedings to comment on those arrangements.”
12. The regime established by ACA 2002, ss 26 and 27 is important. It requires the court in every case before making a placement order to consider the proposed arrangements for contact and the views of the parties as to those arrangements. The court is given wide and flexible powers to make arrangements for contact between the child and any other person in the period prior to any placement for adoption and thereafter during the operative period of the placement for adoption order.An order for contact under s 26 can be made in response to specific application or on the court’s own initiative.
13. A placement order continues in force until it is either revoked by the court (under ACA 2002, s 24), or an adoption order is made with respect to the child or the child marries, forms a civil partnership or attains the age of 18 years [ACA 2002, s 21(4)]. A contact order made under s 26 may, therefore, cover a relatively short period between the making of a placement order and the subsequent granting of an adoption order, or, potentially for far longer periods if an early placement and adoption are not achieved.The power of the court to make an order under s 26 is not confined to the occasion on which the placement for adoption order is, itself, made, but extends to the entire period “while” an adoption agency is authorised to place, or a child is placed, for adoption [ACA 2002, s 26(2)].
14. Where an application for a full adoption order is, subsequently, made, different provisions relating to contact apply. Prior to 22 April 2014, when ACA 2002, s 51A came into force, any provision for post-adoption contact was made by a CA 1989, s 8 child arrangements order, irrespective of whether the adoption followed formal placement for adoption by an adoption agency, or not. ACA 2002, s51A now provides a statutory scheme for post-adoption contact following a placement for adoption order. Previous authorities, to which reference will in due course be made, must therefore be read in the light of the new statutory scheme, albeit that those authorities, in so far as they apply to cases outside S 51A are likely to remain fully applicable to cases where provision of contact continues to be facilitated by an order under CA 1989, s 8.
14. Irrespective of whether contact may fall to be ordered under CA 1989, s 8 or ACA 2002, s 51A, the court has an obligation to consider the contact arrangements. ACA s 46 (6) provides:
“(6) Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.”
The Established Approach to Post-Adoption Contact (a useful summary of the applicable law)
The established approach to post-adoption contact:
- Re C (A Minor) (Adoption Order: Conditions) [1989] AC 1. Prior to CA 1989 and ACA 2002, the court’s powers were limited to attaching a condition to an adoption order if it was necessary to make provision for future contact. Lord Ackner:
“The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child’s natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. When no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access to some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation stopped”
- Re R (Adoption: Contact) [2005] EWCA Civ 1128; [2006] 1 FLR 373 – Court of Appeal considers the issue of post-adoption contact 4 months prior to the implementation of ACA 2002. Wall LJ:
“[47] It is, of course, the case that matters have moved on very substantially since Re C. When Re C was decided, the Children Act 1989 was not in force and adoption proceedings were not designated as family proceedings. Accordingly, if there was to be post-adoption contact between siblings or other members of the adopted child’s family, the only way that could be enforced was by conditions being written into the adoption order under section 8 of the Children Act 1989. Equally, back in those days it was more common, as Lord Ackner himself points out, for there to be no contact between family members and the adopted child after there an adoption order had been made; although, of course, he recognises that there were exceptions to that rule.
[48] We were shown s 1 of the new Adoption and Children Act 2002, which is due in force later this year, which demonstrates the clear change of thinking there has been since 1976, when the Adoption Act was initially enacted, and which demonstrates that the court now will need to take into account and consider the relationship the child had with members of the natural family, and the likelihood of that relationship continuing and the value of the relationship to the child.
[49] So contact is more common, but nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.”
- Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 – reviews earlier case law in considering the issue of post-adoption contact.
“[147] All this, in our judgment, now falls to be revisited under ss 26 and 27 of the 2002 act, given in particular the terms of ss 1(4)(f), 1(6) and (7) and 46(6). In our judgment, the judge in the instant case was plainly right to make a contact order under s 26 of the 2002 Act, and in our judgment the question of contact between D and S, and between the children and their parents, should henceforth be a matter for the court, not for the local authority, or the local authority in agreement with prospective adopters.
[153] We repeat that our reason for taking this view is that the judge’s judgment is predicated on the proposition that the relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placement, or if one is adopted and the other fostered. In the circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and/or the prospective carers of D and S, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute, or if it is argued that it should cease for any reason.
[154] We do not know if our views on contact on the facts of this particular case presage a more general sea change in post-adoption contact over all. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children’s welfare throughout their respective lives under ss 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post-adoption in accordance with s 26 of the 2002 Act [and] under s 8 of the 1989 Act. This is what Parliament has enacted. In s 46 (6) of the 2002 Act Parliament has specifically directed the court to consider post-adoption contact, and in s 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post-adoption, where such powers are in the interests of the child concern.”
- Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581; [2011] 1 FLR 272– concluded that Re P was not intended to affect the conclusion of Re R. The application for contact was dismissed in the Oxfordshire case [at paragraph 36]:
“It is a strong thing to impose on adoptive parents, it is “extremely unusual” to impose on adoptive parents, some obligation which they are unwilling voluntarily to assume, certainly where, as here, the adoption order has already been made. Was there a proper basis for taking that extremely unusual step? In our judgment, there was not. The judge found that the adoptive parents were genuine when they express their concerns, so what was the justification for imposing on them something they conscientiously and reasonably objected to, particularly when, as we have seen, they say that they have not ruled out the possibility of letting the natural parents have photographs in the future? As we have said, they are not to be saddled with an order merely because a judge takes a different view. The adoptive parents are J’s parents; the natural parents are not. The adoptive parents are the only people with parental responsibility for J. Why, unless circumstances are unusual, indeed extremely unusual – and here in our judgment they are neither – should that responsibility be usurped by the court? We can see no good reason either on the facts or in law. On the contrary, there is much force in the point they make, that they wish their status as J’s parents to be respected and seen to be inviolable – not for themselves but in order, as they see it, to give J the best chance for the adoption to be successful.”
- Re T (Adoption: Contact) [2010] EWCA Civ 1527 [2011] 1 FLR 1805. Wilson LJ:
“In my view the judge might also briefly have referred to the established principles applicable to a contested claim for contact following adoption by a member of the biological family. In Re R (Adoption: Contact) [2005] EWCA Civ 1128, my Lord, then Wall LJ, stated: ‘The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual’In her energetic submissions Miss Evans suggests that that statement may now not in such absolute terms represent the law; and she cites to us the judgment of this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, in particular at [147]. The judgment certainly heralds somewhat greater flexibility in the attitude of the court to contact following adoption in certain cases. But the problem for Ms. Evans is that my Lord’s statement in Re R was cited with approval in the very recent decision of this court in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, at [8] and still reflects the general approach.”
The Appeal
The principle point pursued on behalf of the parents was that “the introduction by Parliament of ACA 2002, s 51A indicated an intention by the legislature that more parent would in future succeed in an application for direct contact post-adoption” and that the earlier case law no longer represented the correct approach under s. 51A.
Mr Goodwin QC, on behalf of the local authority, supported the maintenance of the current law as stated in Re R and highlighted that Parliament now imposes upon parents the need to apply for the leave of the court before making an application under s 51A [ACA 2002, s 51A(4)(c)]. The court endorsed the written submissions of Mr Goodwin, as follows:
a) adoption agencies to ensure that all prospective adopters and all adoption social workers fully understand the developing research when undergoing training and approval;
b) in every case where post adoptive contact is a realistic option, the local authority should file, during the placement proceedings, the best information available as to the pool of “open” adopters nationally and to ensure this is as specific to the subject children as possible;
c) the social work and children’s guardian to consider the significance of the research studies in every case;
d) the court to provide full reasons on any s 26 contact application;
e) sibling contact to be considered as an entirely separate exercise to parental contact;
f) an open and frank dialogue between social workers, prospective adopters and birth parents and, if sufficiently mature, siblings about the child’s needs, possibly with a face-to-face meeting as in this case.
Further Guidance
Details that the law remains as stated but that the general approach is changing to one of greater ‘openness’.
ACA 2002, s 51A has been brought into force at a time when there is research and debate amongst social work and adoption professionals which may be moving towards the concept of greater ‘openness’ in terms of post-adoption contact arrangements, both between an adopted child and natural parents and, more particularly, between siblings. For the reasons that I have given, the juxtaposition in timing between the new provisions and the wider debate does not indicate that the two are linked. The impact of new research and the debate is likely to be reflected in evidence adduced in court in particular cases. It may also surface in terms of advice and counselling to prospective adopters and birth families when considering what arrangements for contact may be the best in any particular case. But any development or change from previous practice and expectations as to post-adoption contact that may arise from these current initiatives will be a matter that may be reflected in welfare decisions that are made by adopters, or by a court, on a case by case basis. These are matters of ‘welfare’ and not of ‘law’. The law remains, as I have stated it, namely that it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree.
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