Sibling Relationships

The phrase ‘the most enduring relationship’ is beginning to ring hollow in the wake of BT & GT (Children: twins – adoption) [2018] EWFC 76,a case heard before Keehan J, which charts grave failures leading to twins being placed for adoption separately from one another. There is no doubt that disquiet is brewing as the limited consideration given to the value of sibling relationships was drawn to the fore in the latter part of 2018.  

There remains an assumption that adoption means the end of sibling relationships. A familiar argument preventing sibling contact is that it is unpalatable to adopters and it will reduced the prospect of finding an adoptive placement. In situations where the other siblings are still having contact with the parents, it is often purported that sibling contact will compromise the adoptive placement. It is suggested that information about the adopted child’s whereabouts will be easily communicated to the parents and it will place the children in a difficult situation given that they will need to maintain a level of secrecy around their contact. Both of these arguments fail to give due consideration to the welfare interests of the child and the value of sibling relationships. 

The quality of sibling assessments is variable. The assessments themselves tend to be based on Lord and Borthwick’s good practice guide, Together or Apart? Assessing Siblings for Permanent Placement (BAAF, 2001, 2008) (a substantially revised edition by Shelagh Beckett was published in 2018).The very notion of assessing the strength of a sibling relationship plays to a great extent on the cultural norms imported by the assessor. The assessor is sometimes a psychologist but more often they are a social worker with no specific specialism in relation to assessing sibling relationships. Further, the assessment of the siblings bond is a snapshot of a moment in their lives together taken a point at which they are usually unsettled and may even have already been placed apart. If we take a step back and consider the implications of assessing any sibling relationship within such a sterile environment such a thought is immediately troubling. Sibling relationships are commonly plagued by jealously, competition and irritation. For many those very features define sibling relationships. The value of a sibling relationship is not simply its enduring nature but also its unification of shared experience and identity, which may not be readily apparent at the point of that a sibling assessment is completed. 

Modern children do not necessarily define their siblings along strict interpretations of bloodlines and many children find the notion that siblings would be defined as half and full sibling confusing. This difficulty is further compounded by the fact that there is no clear legal definition of sibling, which is rarely defined outside of broader categories such as ‘relative’. The recent Nuffield research, Siblings, contact and the law: an overlooked relationship?published in November 2018 makes the following observation: 

The professionals and young people shared an ethical concern to make the category ‘sibling’ inclusive of biogenetic, social and emotional meanings, reflecting changes in family life and acknowledging subjective, experience-based notions of siblinghood. They also felt that full and half siblings should be accorded equal value.

There is a risk that as professionals within the family law sphere we import our own views about what constitutes a ‘proper sibling relationship’ and in doing so we unwittingly bulldoze the child’s perspective and replace it with our own. Our views about how siblings ought to behave with one another is based, in part, on our cultural expectations of families – there is a problem with demonising ‘parentification’ within sibling relationships because it discounts certain cultural experiences and assumes that this issue is best solved by separating siblings and thus fails to consider the profound impact that will have on the elder sibling taking on the parenting role. 

BT & GT (Children: twins – adoption) [2018] EWFC 76

In BT & GT (Children: twins – adoption) [2018] EWFC 76, Keehan J made a contact order in relation to the twins to ensure ongoing contact and to mark the importance of their ongoing relationship despite the clear willingness of the adoptive parents to facilitate contact. Nothing is mentioned about the elder siblings and so it can be assumed that no order was made in respect of their contact. 

“126. The high importance, indeed the imperative need, for regular direct and frequent indirect contact to take place is such that I will make a contact order in the terms sought. I do not make a contact order because I entertain the slightest doubt about the dedication of these prospective adopters to ensure this contact takes place, indeed, I am satisfied that the prospective adopters are committed to this contact and recognise that it is in the welfare best interests of BT and GT. I make a contact order (i) to mark for the twins the importance this court places on their ongoing relationship notwithstanding they are adopted separately and (ii) to fortify the adopters in the event that one or other twin is reluctant to the attend contact in the future”

The Future 

There is, as always, an urgent need for the courts to keep pace with the changing nature of family and sibling relationships. An easy way to achieve this is to ensure that the child’s views on important relationships remains at the forefront of our minds. The statute is clear – before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child – this is routinely being overlooked or given minimal attention by practitioners. 

The arguments about parents being able to find out the location of adopted children through their siblings is a weak argument in a modern world dominated by social media. The notion that adoption will be able to continue in its current form is unrealistic. The paternalistic approach of protecting children from knowledge of their birth families needs urgent revision. It fails to acknowledge the resilience and curiosity of children and places too much responsibility in the hands of adopters who are insufficiently prepared for the prospect of managing contact with birth families. It may be that lessons can be learnt from children placed in long term foster care and subject to Special Guardianship Orders to foster carers. Those arrangements may be more akin to an open adoption in which they belong to a larger extended family, as much a part of their foster family as they are of their birth family. 

Relevant Legal Provisions 

Section 15, Schedule 2 Children Act 1989

15: Promotion and maintenance of contact between child and family

(1) Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practicable or consistent with his welfare, endeavour to promote contact between child and:

(a) his parents;

(b) anyone with PR;

(c) relative, friend or other person connected to him. 

Section 22C(8)(c) Children Act 1989

A local authority is required, where reasonably practical, to accommodate ‘looked after’ siblings together. 

Section 1(4) Adoption and Children Act 2002

Court must have regard to (among other matters):

(c) – the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become and adopted person;

(f) – the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers he relationship to be relevant, including – 

  (i) the likelihood of any such relationship continuing and the value to the child of its   doing so;

(ii) the ability and willingness of any of the child’s relatives, or of any such person to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs; 

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child. 

Section 34(11), Children Act 1989

Before making, varying or discharging an order under this section or making a care order with respect to any child the court shall – 

  • consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and 
  • invite the parties to the proceedings to comment on those arrangements.

Section 10(8) and section 34(3)(b) Children Act 1989

10(8) – Where the person applying for leave to make an application for a section 8 order is the child connected, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.

34(3)(b) – If leave is granted – the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person. 

Section 46(6) Adoption and Children Act 2002

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. 

Section 26 and Section 51A Adoption and Children Act 2002

26 – upon an adoption agency being authorised to place a child for adoption any section 8 orders cease to have effect and no application for CAO can be made while an agency is authorised to place for adoption. 

51A – only applies where a court is making, or has made an adoption order following placed for adoption by an adoption agency; in all other cases, provision for post-adoption contact will be made under a CA 1989, section 8 child arrangements order. 

Further Reading 

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imformum

Commentary on recent case law and general musing about life at the Family Bar

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