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Adoption, Placement and Contact Orders after Re P: The Judgment and its implications

Mary Lane, an adoption law consultant, explains the effects of the recent decision in Re P on dual planning and post adoption contact in care and adoption proceedings.

image of mary lanw, adoption law consultant

Mary Lane, Independent Adoption Law Consultant

This judgment (P (A Child) [2008] EWCA Civ 535) concerns an appeal by the mother [supported by the children's guardian] against placement orders, and comes two and half years after implementation of the Adoption and Children Act 2002. It is of immense importance to adoption law and practice in giving definitive answers to three central questions, and with reference to earlier ACA 2002 case law, including the equally seminal judgment in Re T [2008] EWCA Civ 542 (which was handed down a few days after this appeal was heard), unravels some knotty problems, and provides very welcome clarity about crucial aspects of law and practice in adoption, including contact, which have remained controversial since implementation.

The three questions set out by LJ Wall

  1. What is the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002 ?
  2. Is it a proper exercise of the power under section 52(1) (b) to dispense with parental consent to the making of a placement order, when the adoption agency proposes to conduct a search for both fostering and adoptive placements, and may well place the children concerned in separate long term foster placements if either or both prove unadoptable, and neither can be placed with the other?
  3. Is this "dual planning" – simultaneous search for both long term foster placements and adoptive parents - a permissible use of the powers given to local authorities and adoption agencies under the Children Act 1989 and the 2002 Act?

The judgment also deals in detail with the question of the correct approach by the court when the welfare of a child requires both adoption and continued contact

The facts
The children concerned, who have significant emotional damage, were born in 2000 and 2001 and are brother and sister, removed from home in October 2004 with younger siblings because of severe neglect. Care orders were granted in November 2005. Two younger siblings were freed for adoption [under the Adoption Act 1976] and have been adopted, and the youngest child remains at home with the mother. The appeal by the mother, supported by the children's guardian was against the placement orders granted in October 2007. The appeal was dismissed, the Appeal Court Judges endorsing all of the decisions by the first instance judge.

Dispensing with parental consent to placement orders
The ACA 2002 made the welfare of children paramount in adoption, as it is in the Children Act 1989. The 1976 Adoption Act test for dispensation of parental agreement to the granting of a freeing or adoption order - "unreasonably withholding" - has been replaced by section 51 [2] [b]: "the court is satisfied that the welfare of the child requires the consent to be dispensed with."

The court is required to have regard to the section 1 welfare check list in making any decision in adoption. In this case, where the continuance of contact was a crucial welfare issue, particular emphasis was placed upon: section1 [4] [f]; the value to the children of existing relationships, and section 1[2]; the effect of any order made on the welfare of the child throughout their life.

The first ground for appeal by counsel for the mother was that,

"the proper application of section 52(1)(b) of the Adoption and Children Act 2002 required a balancing of the rights of the children and the rights of the mother and no such balancing was undertaken"

Counsel argued that the court at first instance was wrong not to apply an 'enhanced' welfare test rather than a 'simple' one: the court had approved a dual plan [adoption or fostering] which was not sufficient to satisfy the test that the welfare of the children required placement orders to be made, had failed sufficiently (or at all) to weigh the rights of the mother, and had also failed sufficiently to weigh the rights of the children in maintaining contact with each other.

Counsel for the local authority submitted that the first instance judge had correctly interpreted section 51[2 [b] and that 'the paramount consideration of the court or adoption agency must be the child's welfare throughout his life'. The judge had taken into consideration the provision of the welfare check list. She further submitted that the word "require" must be given its ordinary meaning in its proper context. It did not, and could not, mean that adoption was the only possible outcome or that there was no practicable alternative to adoption.

LJ Wall says in his judgment that,

"The judge must, of course, be aware of the importance to the child of the decision being taken. There is, perhaps, no more important or far-reaching decision for a child than to be adopted by strangers. However, the word "requires" in section 52(1) (b) is a perfectly ordinary English word…. the best guidance this court can give is to advise judges to apply the statutory language with care to the facts of the particular case. "

Parental consent at the adoption order stage for placement order cases
The Re P judgment is again helpful in clarifying the law by correcting an error [para 158] in the judgment in Re T [2008] EWCA Civ 542. Where a placement order is in force, the court is not required to dispense with parental consent until and unless the parents, having been notified by the application, apply for and are granted leave to oppose the application. The insistence by some courts that applicants for an adoption order file a statement of facts with their application where a placement order is in force is [and always has been] invalid.

LA decision making in adoption
The Re P judgement refers to Re P-B (Placement Order) [2006] EWCA Civ 1016 [June 2006] which confirmed that statute and regulations must be read with statutory guidance to adoption agencies [DfES 2005]. In particular, there must be compliance with the crucial role of the local authority adoption panel.

The LA's obligation to apply for a placement order within care proceedings (section 22 [2]) is triggered by its decision that it is satisfied that the child should be placed for adoption. However, that decision cannot be made, and the local authority cannot apply for a placement order until the adoption panel has considered the child's case. Interestingly, the Re P judgment. endorsing dual planning after a placement order is granted, is somewhat at odds with statutory guidance. Paragraph 1 Chapter 2 requires that the local authority refer to the adoption panel when it has decided that adoption is the plan for a child: other options for permanence have been assessed and dismissed by the local authority [twin tracking completed] leaving the adoption panel a choice of whether to recommend adoption or not.

LJ Wall makes the point that there is no specific guidance on 'dual planning' after the local authority adoption decision is made. Perhaps this is not surprising in the light of the 2005 guidance, but after this judgment the guidance may need to be revised.

In recognition that permanent family placement of any kind will be hard to find, and notwithstanding the guidance, the social worker in Re P asked the panel to recommend a dual plan of adoption and fostering for both the children and that was the recommendation made by the panel, the local authority decision, and the care plan presented to the court.

The Court of Appeal supported the pragmatism of this plan as being in the best interests of the children, as it made the pool of potential carers, fosterers or adopters, as wide as possible.

The 'likelihood of placement' and adoption agency policy in searching for adopters
These have been hotly debated issues since implementation of ACA 2002. On one side has been the proposition that the welfare of the child demands that the court hearing an application for a placement order [and the children's guardian] need to be satisfied as to the likelihood of placement for adoption, and the suitability of proposed adopters, even to the point of being given the details of families who might be selected for the child including, in some cases, their attitude towards contact.

On the other side of the debate is the point that ACA 2002 does not require the court to be satisfied as to the likelihood of placement, and that the selection of the prospective adopters is a matter for the LA after the placement order is granted, the placement order being authority to place with any adopters chosen by the agency (section 21[1]). The local authority's policy in this case was not to begin the search for potential adopters until the placement order had been granted. In the author's experience, many other adoption agencies have a similar policy developed to protect prospective adopters from the anxiety of engaging emotionally with a child before authority to place with them is secured.

Case law since implementation has moved towards clarification of these issues. In Re T LJ Hughes said

"Mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order. Indeed, section 22(2)(a] clearly contemplates that a placement order may be applied for before it is known whether there will be a care order or not."

LJ Wilson in Re A [2007] EWCA Civ 138 [December 2007] said

"the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child".

Dual Planning
The Court of Appeal in Re P has harnessed a term from Re T, where LJ Hughes endorsed the local authority's dual planning, expressing the opinion that it should have been explicit in the care plan

"Although the care plan did not say so, as it should have done, the local authority made plain from the outset that its contingency plan, if placement for adoption were to prove impossible, was for long term fostering"

Dual planning was explicit in the care plan in Re P and judged to be in the best interests of the children, and although the court found this a 'much more difficult question' than others in the Appeal, LJ Wall says

"we have come to the conclusion that a combination of the tests identified in section 1(1) and 1(6) of the 2002 Act in particular (which must, of course, be considered within the framework of section 1 taken as a whole) justify the local authority's pragmatic approach to the question of the dual approach. In our judgment, a local authority can be "satisfied that the child ought to be placed for adoption" within the meaning of section 22(1)(d) of the 2002 Act even though it recognises the reality that a search for adoptive parents may be unsuccessful and that, if it is, the alternative plan will have to be for long-term fostering".

With regard to the policy not to search for adopters until after the placement order is granted, LJ Wall refers to the 'important point' made by counsel for the local authority.

"As experience shows… many prospective adopters who will come forward only if a placement order has been obtained. The experience of trial judges, as Munby J confirms, is that many local authorities believe, and seemingly with good basis for their belief, that a search for adoptive parents without the benefit of a placement order is a search within an artificially restricted pool. That cannot be for the benefit of the child."

The issue of continued contact during adoptive placement and after adoption, especially between the two siblings if they were to be placed separately, was central to the issue of whether they should be placed for adoption at all. It was a main plank of the mother and guardian's appeal against the placement orders. Their concern was that adoption (but not permanent fostering) would risk the discontinuance of contact .The guardian [who appeared in person] was of the view that placement orders ' were inappropriate because such orders jeopardised the existing contact between the children and thereby their relationship which is considered to be of significant importance to them'. She had some justification for her concerns given that adopters of the younger siblings had not complied with their agreements to provide sibling contact after adoption, despite the local authority's best efforts.

In paragraphs 141 to 146 of his Judgment LJ Wall provides an erudite account of the law of adoption and contact prior to the new Act, and then sets out the changes under the new law, having first noted that when one of the children was subject to a care order, the mother's contact was stopped by the local authority unlawfully as there was no section 34(4) order [CA 1989].

There was no dispute amongst the parties in Re P about the importance of contact continuing into adoption. Even though the court of first instance and the Court of Appeal were convinced of the local authority's genuine intention to seek placements where contact was a crucial ingredient, the making of section 26 orders with placement orders was considered vital to the welfare of the children,

"The relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placements, or if one is adopted and the other fostered. In these circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and / or the prospective carers of the children, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute or if it is argued that it should cease for any reason."

In the author's experience It has been argued by some courts, parents and guardians that even if adoption is in the best interests of the child, the placement order should be refused, if the local authority has not already identified adopters prepared to allow a specified level of contact.
The judgment in Re P is definitive authority that section 26 orders are the correct approach where the child's welfare requires both adoption and continued contact.

Of course, a section 26 order will not guarantee contact after the placement order. Section 26 orders can be varied, discharged or new ones made (including an order for no contact) on application by the child, local authority, many close relatives and with leave, the prospective adopters. In this way, if the contact order needs to be reconsidered, perhaps because of changes in a child's need for contact, or other circumstances which render the original order incompatible with adoption, a court will adjudicate.

The section 26 order is not an order for post adoption order contact. However, the continued involvement of the court after the placement order via section 26 applications, goes a long way to influencing the search for adopters, and the outcome of the adoption order application, when section 8 [CA 1989] contact orders could be made (section 46 [6]).

The only guaranteed outcome of a court's decision in this area – as identified in Re T and Re P - is that without a placement order, adoptive placement is not possible.