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B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29 (30 January 2019)

Appeal heard by the President of the Family Division, Lady Justice King and Lord Justice Coulson which concerns the issue of post-adoption contact.

The child in question (B) was born in April 2017.  After an unsuccessful residential assessment, she was removed from her birth parents' care in August 2017 and placed with foster-to-adopt carers.  The Local Authority issued their placement application in September 2017 and final care and placement orders were granted in October 2017.  The final care plans did not envisage post-adoption direct contact for the birth parents.  In giving judgment the Recorder endorsed this care plan but also invited further discussion post-judgment as to whether there was some possibility of direct contact. 

The birth parents and the prospective adopters met in November 2017. The adoption application was issued in December 2017.  The birth parents' position was to neither consent to an adoption order nor seek leave to oppose the making of an adoption order, however they wished for post-adoption contact and leave to make such an application was granted in May 2018.  At the final hearing in September 2018 the birth parents' application for post-adoption contact was refused.  They had argued (in the birth mother's case via the Official Solicitor) that the purpose of s51A was to reflect the changing view about the benefits of greater openness in adoption, and cited 2018 research from the British Association of Social Workers.

The birth parents' application for permission to appeal was successful on the ground there was some other compelling reason for the grant of permission, namely that the implementation of s51A of the Adoption and Children Act 2002 (inserted by the Children and Families Act 2014) and recent research into post-adoption contact justified consideration by the Court of Appeal.

The Court of Appeal (McFarlane LJ, with whom King LJ and Coulson LJ agreed) summarised the pre-ACA 2002 s51A authorities, noting that the established starting point was that the court would be reluctant, save in an exceptional case, to impose contact beyond that which the adopting parents would agree.  This position was reaffirmed in Re R (Adoption: Contact) [2005] EWCA Civ 1128 just 4 months prior to the implementation of the 2002 Act.  Consideration was also given to the case of Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 where the Court of Appeal did impose an order requiring sibling contact to take place on the facts of that case, where the importance of the sibling relationship being maintained had been stressed at first instance.  Re P was itself considered in Oxfordshire CC v X, Y and J [2010] EWCA Civ 581, where the court was careful to stress that Re P did not affect the propositions set out in earlier case law, including Re R.  This was confirmed just a few months later in Re T (Adoption: Contact) [2010] EWCA Civ 1527.

The Court of Appeal then considered whether s51A represented a change in the test to be applied in such cases.  They noted that the Explanatory Note to CAFA 2014 stated that the purpose of introducing changes to the arrangements for contact between adopted children and birth families/others was "with the aim of reducing the disruption that inappropriate contact can cause to adoptive placements".  They accepted that Parliament's intention in enacting s51A was aimed at enhancing the position of adopters rather than the contrary.

Summary by Julia Belyavin, barrister, St John's Chambers, Bristol.

For the judgment click here