Monday, September 28th, 2020
New ‘forever families’ are created through Adoption Orders every week in the Family Court. These court hearings can be a moment of joy and celebration for children and adopters; they mark the end of an often long and gruelling process, and the start of life as a new family unit. The law is very clear that Adoption Orders sever the legal ties between the adopted child and their birth family. However, the question of whether physical and emotional ties should be maintained through direct post-adoption contact is much less clear. It has proved to be a tricky issue for the Family Court to grapple with.
The Adoption and Children Act 2002 was meant to usher in a new regime for post-adoption contact; it put a duty on the court to consider contact between the child and his/her birth family at the point when a Placement Order (the court order which allows the local authority to place a child with prospective adopters) is made, and again when the court grants an Adoption Order. In 2014, amendments were made to the Act allowing the court to make an order for contact even after the adoption has taken place.
Developing research* in the area of post-adoption contact has highlighted the benefits of maintaining direct links with birth families. It has been suggested that powerful assumptions against birth families having contact with the child still persist, even in circumstances where there is no risk to the child from that contact taking place. Assumptions such as: direct contact will deter prospective adopters; that post-adoption contact should only take place with the adopters’ consent; and that the stability of adoptive placements will be undermined by contact. This often leads to a ‘one-size-fits-all’ approach where ‘letterbox’ (cards and letters) contact from parents once a year is the norm. The research highlights concerns that a child’s best interests in having ongoing contact with its birth family may be sacrificed for these policy considerations, and that once a decision for no direct contact is made, it is rarely revisited.
There are concerns that restricting direct contact with birth families after adoption stores up issues for an adopted child as they get older. The game-changing prevalence of social media means adopted children can track down birth parents and siblings themselves far more easily than ever before. One study** found that the use of social media could be unhelpful when young people or their birth relatives, driven by unmet needs, made contact with each other without involving adoptive parents and without any preparation or support.
The research stresses the need for each situation to be looked at individually and for the question of direct contact to be revisited through the adopted child’s lifetime. It also highlights the need to ensure adoptive families have full and realistic information about a child’s birth family, which might include a meeting between adopters and birth family if possible. The importance of ongoing support for adoptive families, and support for birth families to prepare letters to adopted children is also a key consideration.
The court’s current approach to adoption contact is in stark contrast to situations where a child is placed with long-term foster carers or with a Special Guardian. When considering contact arrangements in these cases, the starting point is that the contact with birth families is in a child’s best interests unless there are welfare reasons to limit contact. We routinely see arrangements for birth families to spend time with the child every month if not more often.
Despite the calls for more a more flexible open approach for direct post adoption-contact being considered, use of the provisions for contact orders in the Adoption and Children Act 2002 are very rare.
The reported case of Re B (A Child) (Post-Adoption Contact)  EWCA Civ 29 was the first to come before the Court of Appeal since the 2014 amendments to the Act were brought in. The Official Solicitor, acting for the child’s mother had put forward an argument that the changes bought in in 2014 were “to reflect the changing view about the benefits of greater openness in adoption” and referred to the research which highlighted the importance of contact after adoption.
The parents’ appeal was refused, but the Court of Appeal addressed the wider context of post-adoption contact. Lord Justice McFarlane stated that the new legislation has not changed the approach which is set out in pre-2014 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”.
However, Lord Justice McFarlane also emphasised that “it must be a given that any social worker, children’s guardian or expert who is required to advise the court on the issue of contact, will ensure that they are fully aware of any current research and its potential impact upon the welfare issues in each particular case.”
Whether this translates into meaningful change in practice both in Local Authorities and the Family Court, remains to be seen.
* Siblings, contact and the law: an overlooked relationship? (Daniel Monk and Jan Macvarish. Birkbeck/Nuffield, November 2018) / The role of the social worker in adoption – ethics, and human rights: An enquiry (Professor Brid Featherstone, Professor Anna Gupta, Sue Mills, June 2018).
**Contact after adoption – a longitudinal study of adopted young people and their adoptive parents and birth relatives (Neil Elsbeth, Mary Beek, Emma Ward, 2014)
The public law child care team at Hanne & Co Solicitors comprises of seven solicitors who are accredited on the Law Society Children Panel and two further specialist solicitors who are working towards obtaining that accreditation. We are able to advise on all aspects of the adoption process. We regularly provide advice to prospective adopters, adoptive parents and birth family members on issues relating to the care of children who are placed for adoption. Should you require the assistance of one of our solicitors please do not hesitate to contact us on 020 7228 0017 or via our website.
Joanna Brind is a Solicitor in Hanne & Co’s Child Care Law Department