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Post-Adoption Contact: All Change or More of the Same?

Lance Dodgson, barrister of Bank House Chambers, considers the changes concerning post-adoption contact made by the Children and Families Act 2014 and asks what effect they will have in practice.

Lance Dodgson, barrister, Bank House Chambers















Lance Dodgson, barrister, Bank House Chambers

The recent statutory developments concerning the contentious issue of post-adoption contact have resulted in a significant amount of academic debate and interest from many quarters. The Children and Families Act 2014, which received Royal Assent on 13th March 2014, represents a symbolic change of impetus from Parliament within the arena of family law. Prior to April 2014 an order for a child arrangement, formerly known as a contact order, could only be made under section 8 of the Children Act 1989. However, the Children and Families Act 2014, section 9, has amended the Adoption and Children Act 2002, with the new insertion of section 51A and 51B. These new provisions now provide the court with a specific power to make an order for post-adoption contact when the court is making an adoption order or when an adoption order has been made.

Although individuals seeking post-adoption contact may be uplifted to some extent by the symbolic statutory amendments by the Government, many adoptive parents caring for the subject child, and indeed prospective adoptive carers, may be filled with dread at the prospect of post-adoption applications for contact being made. Advocates supportive of post-adoption contact argue that the statutory amendments may lead to a promotion of the long term welfare of a child in an adoptive placement if such orders are successful because it would allow for the establishing and retaining of birth identity links. However, critics of the Parliamentary changes will naturally be concerned with whether post-adoption contact will significantly undermine the stability of adoptive placements and cause placement break downs. The question remains as to how these new provisions will ultimately be applied by the courts in the best interests of the subject children in practice and whether their application will reduce the number of adopters coming forward.

History
An adoption order has been described repeatedly by the courts as the most draconian interference in family law because adoption severs all legal links between a child and their birth family. Traditionally the courts have favoured a complete break approach from the child's biological family following the child being placed with their adoptive parents away from their birth parent. Many advocates of the traditional ethos believed a retaining of parental links to be at odds with the inherent purpose underlying adoption.  Over the years, however, there has seemingly been a shift in philosophy from the secrecy which once shrouded the adoption process.  Now, regularly in public law proceedings final care plans specify indirect post-adoption contact twice per year in the form of information being exchanged, such as cards, photographs and letters, through a confidential agency letter box service between family members and the adoptive carers.

With there being an increasing environment of higher levels of adoptions at a seemingly speedier pace to minimise undue delay to the child, many older children placed with adoptive carers will retain an identity and attachment with their birth families and have a sense of their biological heritage. This is particularly the case due to the upper age of adoption being a seemingly more fluid concept than previously. Countless children, depending on their age, are prepared for the process of adoption via child appropriate 'Life story' work which may also continue on in their adoptive placement to provide an understanding of their birth family. Such work will inevitably give rise to further questions for the child as they develop and mature. Whilst post-adoption contact can take the form of indirect contact, this form of contact may simply seek to worsen matters for the child and may not be ultimately promoted by the adoptive carers in any event despite prior assurances that it would be.

Children and Families Act 2014
Before the Children Act 1989 came into force, the statutory basis for considering contact after adoption was contained solely in section 12(6) of the Adoption Act 1976, which, was not incorporated in the later Adoption and Children Act 2002. The Children and Families Act 2014 has now brought forth a number of significant changes and alterations to the area of post-adoption contact after years of conflicting views underlying the complex issues.

Prior to the making of an adoption order, the court is required to consider whether there should be arrangements for any person to have contact with the child. Moreover, pursuant to section 46(6) of the Adoption and Children Act 2002, the court must consider any existing or proposed arrangements and obtain the views of the parties to the proceedings. Before making an adoption order the court has the power to make a child arrangements order under section 8 of the Children Act 1989. However, any existing orders for contact under the Children Act 1989 will be extinguished by section 26(1) and section 46(2)(b) of the Adoption and Children Act 2002 once a child is placed for adoption or an adoption order is made.

Section 51A of the Adoption and Children Act 2002 now specifically allows for individuals to make applications for post-adoption contact if they are related to the children. Therefore it is likely that step-parents, siblings and foster carers can make an application for contact. Additionally, the adopted child is also able to make an application without the need for leave of the court, and adoptive carers and prospective adoptive carers can make an application if an adoption order is made. Any other person can apply if the court grants leave but there is a legislative hurdle in place to overcome.

Section 51A (3)(a)-(e) of the Adoption and Children Act 2002 identifies the individuals who are permitted to be 'named' in an order under this section

(i) Any person (but for the adoption) who would be related to the child by blood or half-blood, marriage or civil partnership;

(ii) Any former guardian of the child;

(iii) Any person who had parental responsibility for the child immediately before the making of the adoption order;

(iv) Any person who was entitled to make an application for an order under s26 of the Adoption and Children Act 2002 in respect of the child (contact with a child placed or to be placed for adoption) by virtue of subsection 3(c), (d) or (e) of s 26;

(v) Any person with whom the child has lived for a period of at least a year. This must be a continuous period of one year, which must not have begun more than 5 years before the making of the application.

Under section 51B of the Adoption and Children Act 2002 when the court has an application for leave to make a post-adoption contact order or a variation or revocation of a contact order or the court is considering making a post-adoption contact order of its own volition, the court will set down a timetable in order to keep a tight rein on the directions specified in the order and to minimise delay. The court, under this section, can include directions concerning how the order is to be effected and may include such conditions as the court believes is warranted.

Leave
Aside from the subject child and the person who has applied for an adoption order or had an adoption order made in their favour, any persons seeking a contact order post-adoption must overcome the legislative barrier of requiring the court's leave to pursue their application under s.51A(4)(c) of the Adoption and Children Act 2002. The requirement for leave will undoubtedly provide reassurance to adoptive carers who oppose the post-adoption contact, as many applications will simply not manage to overcome the rather strict application of the criteria for leave which is likely to be employed by the courts in such instances.

The court can also, interestingly, make an order prohibiting post-adoption contact on its own initiative under section 51A (6) of the Adoption and Children Act 2002 in circumstances that warrant it. When considering an application for leave from an individual, the court must consider the following factors:

(i) Any risk there might be of the proposed application disrupting the child's life to such an extent that the child would be harmed by it (within the meaning of the Children Act 1989);

(ii) The applicant's connection with the child; and

(iii) Any representations made to the court by either the child, the adopters or prospective adopters.

The Adoption and Children Act 2002 specifies the test for the proposed application being the same as the test of harm incorporated in the Children Act 1989. The judiciary, at present, have not had an opportunity to provide a great deal of guidance on the mechanics of the amendments to the Adoption and Children Act 2002 in practice on the issue and further comment will undoubtedly be forthcoming from the courts on this area in due course.

Post-adoption contact
Since the advent of the Children Act 1989 and the Adoption and Children Act 2002 the courts are under a duty to consider the child's welfare as the paramount consideration in determining matters related to contact. Under section 46(6) of the Adoption and  Children Act 2002 the courts are duty bound to consider "whether there should be arrangements for allowing any person contact with the child" prior to the making of an adoption order.  Section 1(4)(c) and 1(4)(f) of the Adoption and Children Act 2002 specifically sets out that the courts must consider the extended meaning of the welfare provisions relating to the impact on a child of not being within their birth family prior to the making of Family Law orders, with the powers as set out at section 1(6) and 1(7).

Following the making of an adoption order the courts have traditionally taken a very restrictive approach and granted natural parents direct contact with the child only in very exceptional and limited circumstances. The judiciary have adopted this cautious approach because many viewed post-adoption contact as a significant risk to the child's welfare. Moreover, opponents of post-adoption contact argue that parties may potentially alter their positions; adoptive carers may refusal to promote the contact and protracted litigation may unsettle the child's placement. In Re C (A Minor) (Adoption: Access) [1989] AC 1, HL the House of Lords established the principle that agreement of adopters to post-adoption contact is extremely important and the absence of such agreement could lead to a myriad of troublesome issues for the child's placement:

"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 facts. No doubt the Court will not, except in the most exceptional circumstances, impose terms or conditions as to access to the child's natural family to which the adoptive family would not agree."

Following the resolute views of the House of Lords, the courts have consistently adopted a very cautious and restrictive approach in the face of applications for post-adoption contact. The Court of Appeal in Re R (Adoption: Contact) [2005] EWCA Civ 1128 stressed the view that such orders would be unlikely to be made "in the face of reasonable opposition from the prospective adopters…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."

This historical view was reaffirmed by Wall LJ in Re P (Placement Orders: Parental Consent [2008] EWCA Civ 535 where the learned judge stated that the courts were likely to make a contact order only where the circumstances could be termed "highly exceptional." Moreover, Wall LJ in the case of Re C (Contact) [2008] 1 F.L.R. 1151, FD adopted the dicta of Bennett J in explaining the purpose of post-contact adoption:

"the purpose of adoption is for the child to develop in a quite different family…and the purpose of contact is…for identity purposes, not to develop a relationship between the natural parent and the child who is adopted."

In this case the Appellate Court also undertook an analysis of past judicial decisions pertaining to post-adoption contact and threw down the gauntlet for the highly contentious issue of post-adoption contact to be reconsidered in light of the contact provisions and the extended meaning of welfare in section 1 of the Adoption and Children Act 2002.

In the later decision of Re J (A Child) (Adopted Child: Contact) [2010] EWCA Civ 581 the Court of Appeal firmly held that the issue of post-contact adoption was a matter to be determined via the more restrictive provisions of the Children Act 1989 relating to welfare considerations and not the more expansive provisions relating to welfare as specified in the Adoption and Children Act 2002. Lord Neuberger MR repeated the judicial views of previous decisions as set out in Re P (Placement Orders: Parental Consent [2008] EWCA Civ 535, Re R (Adoption: Contact) [2005] EWCA Civ 1128 and Re C (A Minor) (Adoption: Access) [1989] AC 1, HL by confirming that it would be "extremely unusual" to make a contact order post-adoption when the adoptive carers opposed such an order for the natural parents.

In 2010 the Court of Appeal in Re J (A Child) (Adopted Child: Contact) [2010] EWCA Civ 581 affirmed the principle that that it would be highly unusual to impose a requirement on adoptive parents to provide a photograph of the adoptive child to the natural parents in opposition to the adopters' wishes. The Appellate Court stated that it would not undermine the parental responsibility of the adoptive carers. Furthermore, in Re T (a child) (adoption: contact) [2010] EWCA Civ 1527 the Court of Appeal re-emphasised that it would be extremely unusual for a contact order to be imposed against the agreement of prospective adoptive parents. The Appellate Court held in that case that the natural parents could not compel adoptive parents to provide evidence in court concerning the application as long as the judge hearing the matter was satisfied that there was a fair hearing in determining the application.

In MF v LB of Brent & Ors [2013] EWHC 1838 (Fam) Ryder LJ granted an opposed contact order in favour of family members and the prospective adoptee when making an order for the adoption of a 7 year old boy. Ryder LJ considered the relevant authorities concerning contact after adoption and both the Children Act 1989 and the Adoption and Children Act 2002 in determining the applications because the Court believed the facts of the adoption and the contact were entwined. Ryder LJ held that the child's welfare throughout his life warranted the maintenance of his relationship with his biological family members and "should contribute to the reassurance and stability" of the child. 

CAFCASS
Applications for post-adoption contact will continue to present great difficulties for the courts dealing with such matters given the potentially contrasting views of the applicants, adoptive carers and possibly the subject child depending on their age. Previous welfare led contact that was a positive experience for the child will assist prospective applicants seeking contact. Nevertheless, the potential for disruption to a child settled in a placement may simply be viewed as too high when applying section 1 of the Adoption and Children Act 2002 due to the unknown, and potentially detrimental, consequences. CAFCASS will, it seems, be invited to play a vital role in assisting the court with an independent assessment of whether post-adoption contact would be of benefit to the child in the circumstances. It is most likely that the Children's Guardian who originally had conduct of the case through the care proceedings, if available, will be engaged to perform a welfare led analysis and provide their recommendations to the court on the issue before it determines the application.

Conclusion
The Children and Families Act 2014 may represent a potential modification of the current regime pertaining to post-adoption contact. The insertion of section 51A to the Adoption and Children Act 2002 now specifically provides the court with powers to make an order for contact post-adoption, with the scope and mechanism of such applications for a wide variety of potential applicants clearly now being set out in statute. Some legalists fervently argue that the new Act represents an acceptance by Parliament that contact post-adoption can assist in securing the lifelong wellbeing of a child in their new placement. Others, however, suggest that the new Act is merely bare tokenism and heralds no more than that in reality. 

Prior to the enactment of the Children and Families Act 2014 the judicial view as to post-adoption contact was abundantly clear from the authorities of Re R (Adoption: Contact) [2005] EWCA Civ 1128 and Re C (A Minor) (Adoption: Access) [1989] AC 1, HL. Despite the trite point that each case turns on its own facts and is dependent on individual circumstances, it is perhaps unlikely that the judiciary will alter their restrictive position to post-adoption contact in view of the statutory changes.

While the Children and Families Act 2014 has evidently brought about significant and sweeping changes to the family justice system in general, the new provisions pertaining to post-adoption contact have yet yielded relatively little judicial consideration. Even with the legislative changes, it remains unlikely however that the courts will seek to impose arrangements on adoptive carers who adamantly oppose them in light of the fact that section 67 of the Adoption and Children 2002 states that the child is to be treated as if born to the adoptive carers once an adoption order is made. Only time will tell how the new provisions will be interpreted and applied by the courts.

11/11/14