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RE B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29

What is the Future for Post-Adoption Contact?

The issue of post-adoption contact was recently considered by the Court of Appeal in Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29. This article, written by the solicitor and junior counsel for the appellants, considers the backdrop against which this appeal was made and where this judgment leaves the issue of post-adoption contact.

The thorny issue of post-adoption was recently brought before the Court of Appeal in the case of Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29.  In that case, both birth parents are disabled in respect of their intellectual functioning which, in the case of the birth Mother, is a very significant disability.  (Mother was represented by the Official Solicitor throughout).  These difficulties impeded their ability to care for their daughter, B.  Following care proceedings, care and placement orders were made for B.  During the course of the Court process, 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 did suggest an annual face-to-face meeting between B’s birth parents and adoptive parents with a view that these meetings might include B in the future “once a trusting relationship had been established”. 

Re B was the first case to come before the Court of Appeal following the implementation of Section 51A of the Adoption and Children Act 2002 which specifically makes provision for post-adoption contact orders.  It was felt, on behalf of the appellants, that this case was timely given the recent change in the legislative framework and the developing research in this area.  On behalf of the appellants, it was argued that in enacting Section 51A, Parliament had intended there to be greater focus on post-adoption contact in the Court process.  Unfortunately, the Court of Appeal did not agree. 

Before considering the implications of the academic research in this area, it is important to understand the legislative framework within which post-adoption contact orders can be made. 

When making an adoption order the court must consider whether there should be arrangements made allowing any person contact with the child (Adoption and Children Act 2002 section 46(6)). Adoption orders in relation to contact are intended to be permanent and final. 

Section 9 of the Children and Families Act 2014 introduced two new sections (s.51A and s.51B) into the Adoption and Children Act 2002 to govern post-adoption contact. These came into force on 22 April 2014.   A Section 51A order can provide for contact or prohibit contact with specified individuals (s.51A (2)(b)).  Section 51A (3)(a)-(e) of the Adoption and Children Act 2002 identifies the categories of people who are permitted to be named in an order and includes any blood relatives or relatives through marriage or civil partnership.  Any persons seeking an order for post-adoption contact must obtain the court’s leave to pursue their application (Section 51A(4)(c) of the Adoption and Children Act 2002).

In deciding whether leave should be granted, the court must consider the extent to which allowing such contact would disrupt the child’s new life, the applicant’s connection to the child, and any representations made to the court by the child or the adoptive family.

In recent years there has been substantial research which, the writers contend, strongly suggests that post-adoption contact can help in supporting an adoptive placement.   It is our view that the approach to the issue of post-adoption contact needs to be reconsidered by social worker professionals, Guardians, prospective adopters and ultimately the Court. 

The Role of The Social Worker In Adoption:
In 2016, a piece of research was commissioned by the British Association of Social Workers to provide up to date information about the process of adoption in the UK.  This research project was led by Professor Featherstone (University of Huddersfield) and Professor Gupta (Royal Holloway, University of London).  During the course of this research, the academics considered adoption from the perspective of various “stakeholders” including birth parents, adoptive parents, siblings, adult adoptees and social workers as well as policy makers and academics.  The research was published in June 2018, titled “The Role of The Social Worker In Adoption – Ethics and Human Rights: An Enquiry“. This research considers all aspects of adoption and is an interesting read for any professional involved in the public law system. 

In respect of the issue of post-adoption contact “(t)he Enquiry highlighted the need to think about how we might do adoption differently. It was questioned whether there was a need for so many birth families to be removed so starkly from children’s lives as they often are. It was asked whether another way could be found that gave children safety and security but kept meaningful connection with birth families. It seems timely to consider what a more open model might look like and what might be needed to support it being done carefully and thoughtfully.”

In particular, the Enquiry recognised that:

a. “Letterbox contact is often poorly supported with resources.  A lack of resourcing can mean if either adoptive families or birth families stop letterbox contact unilaterally there is no follow up to ascertain why”.  The Social Workers contributing to the research noted the impact of recent austerity measures on the resources made available for birth parents, adoptive parents and adopted children around post-adoption contact.   

b.  “The lack or cessation of direct contact can ‘store up trouble’ especially for birth families and adopted people. Seeking reunification in later life was considered to be widespread”.   

c. “There is rarely a ‘clean break’ or severance in real life; relationships endure in hearts and minds. The absence of physical presence may, indeed, mean they are more powerful”;

d. Interestingly it seems that direct contact post-adoption is viewed differently in Northern Ireland, where judges sometimes recommend that direct contact takes place between 4 and 6 times per year. 

The Contact After Adoption Study:
The Centre for Research on Children and Families based at the University of East Anglia has undertaken a piece of research titled “The Contact after Adoption Study”.  The full report was published in December 2013.   This research is a longitudinal study which falls in to 3 stages.  It commenced with Dr Elsbeth Neil’s doctoral research which concluded in 2000 and considered a survey completed by 168 social workers.  The Nuffield Foundation then funded 2 further extensions to the project running between 2002-2004 (Stage 2) and 2012-2013 (Stage 3) and Dr Neil was joined by Dr Emma Ward and Mary Beek.  Stage 2 of the study focused on adopted children and their families (birth and adoptive) seven years after adoption occurred.  Some of these families involved a care plan which intended indirect contact and/or face-to-face contact.  Stage 3 of the study returned to the same individuals involved at Stage 2 at which point the adopted children were aged between 16 and 21 years old. 

The key findings from Stage One of the research include the following: 

i. Generally, families were happiest with contact when they could move to an arrangement that more closely suited the particular circumstances of their lives;

ii.   Face to Face contact, even at high levels, was not found to get in the way of the development of the relationship between the adoptive parents and the child;

iii.   Most children, because of their young age, had only a very limited understanding of adoption. This meant that for children, contact meetings were not emotionally charged and were generally accepted easily and often enjoyed by them;

iv. There were a number of ways in which contact seemed to help an adoptive parent develop empathy. For example, negative fantasies about the birth family could be reduced by actually getting to know them. Contact could eliminate adopter’s fears that birth relatives could threaten their relationship with the child, and so free them up to feel empathy for the birth family. In some cases, contact reassured adoptive parents that it was the right thing that they had adopted the child. Although some adoptive parents were quite fearful of the idea of contact with birth relatives in the beginning, when contact happened most felt there were immediate benefits for themselves, as well as the possibility of benefits for the child in the longer term;

v. This position of acceptance and support for the adoptive parents was frequently one that developed over time as relatives felt reassured that the child was OK and that the adoptive parents were nice people.

The key findings from Stage 3 include recognition of the following:

i. The majority of contact arrangements had altered since the court hearings and had reduced in frequency.  Post adoption contact had reduced over time.  Direct contact arrangements were more likely to last than indirect contact arrangements;

ii. Views of contact varied from person to person, but where contact had been predictable and sustained, satisfaction was usually high;

iii. Adopted young people experienced benefits from contact which included gaining information about their birth family, building an open atmosphere with their adoptive parents and enjoying relationships with birth family members;

iv. The challenges of contact for young people were mainly around managing the emotional strain of contact, being left with unanswered questions or unrealistic information, and being unhappy about gaps in contact.

Interestingly, this research also makes recommendations for social work practice:

i. “At the stage of planning post adoption contact, try to move away from standard practices or assumptions within your agency. Focus instead on the individual needs, risks, and resources present in any one case.

ii. Consider birth relatives’ potential to accept the adoption, recognising that this capacity can change and may be low at the time of contested proceedings.

iii. Where needed, provide ongoing support for contact particularly when birth relatives have additional needs for example with literacy or mental health issues.”

Judicial Comment:
Alongside this academic research, the judiciary have also made comments, inside and outside the Courtroom, about the need to consider a new approach for post-adoption contact. 

As early as 2003, Lord Justice Ward recognised that “The benefit [of contact]…comes from the children simply knowing who the natural parental figures are.  It is to remove the sense of ogre, as they reach adolescence and begin to search for their own identity, with the double crisis not only of adolescence itself but of coming to grips with the fact that they are adopted.  That is why current research is in favour of some contact in adoption.” (Re G (Adoption Contact) [2003] 1 FLR 270).  The concept of removing the unknown for adopted children through ongoing contact with the birth family is something that can be clearly seen in the academic research set out above. 

In June 2013, Mrs Justice King (as she then was), gave the Hershman/Levy lecture and considered the issue of post-adoption contact in the modern world of social media.  Her Ladyship recognised that “the concept of public domain has changed for ever as a result of the revolution in information technology” and is something that has to be considered in care planning.  In short, the world of Facebook makes it far more likely that adopted children and/or birth parents will have the opportunity to find out information about one another in an unstructured and unregulated manner.  She recognises “every time an ill prepared adoptive placement breaks down or is seriously damaged by unregulated contact through Facebook, we, as a society, and me as a Family judge regularly making placement for adoption orders, have let down that family in a quite unforgivable way”.  Although not specifically considered within this article, the writers would suggest that direct contact could be one way of reducing the risk of unstructured contact through social media as both birth parents and adopted children have an avenue for that much needed and wanted contact.

In March 2018, Lord Justice McFarlane (as he then was) addressed the NAGALRO conference.  (NAGALRO is an association for social work professionals who work in the children and families field and represent children in public and private court proceedings).  During this speech he questioned ‘whether a flexible and open arrangement, developed with confidence and over time, may provide more beneficial support as the young person moves on towards adolescence and then into adulthood.’  He noted that ‘a level of direct contact that develops slowly during childhood once the dust from the adoption order being made has settled, may well be better for these young people in the longer term.’

This view is supported by the research of Elspeth Neil et al (2013) who found that ‘some of the successful direct contact arrangements seen in this study started as modest indirect contact with birth family which grew over the years.’ McFarlane P had previously made similar observations at the Inaugural Bridget Lindley Annual Memorial Lecture in March 2017.

RECENT JUDGMENT BY THE COURT OF APPEAL – Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29

Although the substantive appeal was refused in the case of Re B, the Court of Appeal were asked to consider providing further guidance on the issue of post-adoption contact in light of the research and opinions outlined above. 

On behalf of the Local Authority, Mr Nicholas Goodwin QC proposed that the following should be considered good practice in relation to post-adoption contact: 

1. adoption agencies to ensure that all prospective adopters and all adoption social workers fully understand the developing research when undergoing training and approval;

2. 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;

3. the social worker and children’s guardian to consider the significance of the research studies in every case;

4. the court to provide full reasons in determining any s. 26 contact application;

5. sibling contact to be considered as an entirely separate exercise from parental contact;

6. 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.

The President, in giving the leading judgment, was careful not to “raise any of the listed matters to the status of being something which the Court of Appeal has stated should now be required in every case.” However, he continued “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.”  The writers would therefore suggest that the list of 6 points outlined above, should be considered ‘good social work practice’. 

In conclusion, the President stressed that the law set out in Re R [2005] EWCA Civ 1128 continues to apply to applications for post-adoption contact and “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”. 

What does this mean for us in care proceedings?

1. It is important for us to be aware of the current research in respect of post-adoption contact.  If it is expected that the professionals working within the field are considering the recent and relevant research then it is crucial that we are able to appropriately analyse this information during the course of any hearing. 

2. We can, and should, continue to raise issues relating to  post-adoption contact through the care and placement proceedings and adoption proceedings. 

3. We must hope that prospective adoptive parents and adoption social workers familiarise themselves with the developing research showing the benefits of post-adoption contact and how changes can be made on the ground.  This needs to form the basis of some realistic training for prospective adopters around post-adoption contact. 

4. Should we consider making more applications for contact orders alongside placement orders under Section 26 of the Adoption and Children Act 2002) so that the issue of post-adoption contact at a realistic frequency is identified and discussed with potential adopters at an early stage in the process?

By Sarah Jennings – 3PB Barristers and Phil Storey, Bailey Wright & Co. Solicitors