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“Wait a Minute, Mr Postman”: Post-Adoption Contact after the Children and Families Act 2014

Dr Bianca Jackson, barrister, Coram Chambers and co-author of “Public Children Law: Contemporary Issues” examines the issue of post-adoption contact









 






Dr Bianca Jackson, barrister, Coram Chambers

Introduction
Historically, the courts have taken a conservative approach when considering post-adoption contact between a child and her birth parents/relatives. A "clean break," whereby the child has no post-adoption contact with her biological family, was posited as the best way in which to secure the stability and security of the child and of the adopters in their care of the child.1  In recent years, however, there has been a shift in both social and legal attitudes towards post-adoption contact. Concerns have arisen over the detrimental consequences of closed adoptions, in particular the adopted child's feelings of loss, separation, and lack of identity. 2 This is true even where a child is adopted as a baby and has no memory of her birth family: research indicates that she might experience stress from the loss of genealogical continuity; the loss of biological connection to the adoptive parents; and being different from her peers. 3

This movement towards a greater acceptance of the importance and significance of post-adoption contact is reflected in a number of provisions contained in the Adoption and Children Act 2002 ('ACA 2002'). Pursuant to s.46(6), "before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings." Likewise, sections 51A and 51B, which were inserted into the ACA 2002 by s.9 of the Children and Families Act 2014 ('CFA 2014'), provide the court with a specific power to direct post-adoption contact, both before and after an adoption order is made. Yet, as this article will demonstrate, the statutory provisions (as well as the existing case law) continue to make it very difficult for birth relatives to obtain post-adoption contact orders.4

The Law
Prior to the introduction of sections 51A and 51B, the court could only order post-adoption contact by making a "contact order" pursuant to s.8 of the Children Act 1989 ('CA 1989'). 5 The applicant would need to demonstrate that the continuation of contact after the legal ties between the child and the relative had been severed was in the child's best interests pursuant to s.1 of the CA 1989, with reference to the welfare checklist as set out in s.3. However, sections 51A and 51B provide a specific regulatory framework on how post-adoption contact is to take effect or, in the alternative, restricted.

Section 51A applies where "an adoption agency has placed or was authorised to place a child for adoption, and the court is making or has made an adoption order in respect of the child| [s.51A(1)]. Most cases where an adoption agency is involved will fall under s.51A, in that the agency will have placed the child for adoption, whether by moving the child to prospective adopters or by changing the status of the child's existing foster carers to one of prospective adopters.6  Section 51A will also apply to non-agency adoption applications where there is a placement order and the applicants, such as existing foster carers, were not approved by the agency as prospective adopters but are either to be granted an adoption order by the court or the court has already made such an adoption order. 7

Pursuant to s.51A(2), when making the adoption order or at any time afterwards, the court may make an order requiring the person in whose favour the adoption order is or has been made (i.e. the adopted parent or parents) to allow the child to have contact with the person named in the order OR prohibiting the person named in the order from having contact with the child:

'51A Post-adoption contact
[…]
(2) When making the adoption order or at any time afterwards, the court may make an order under this section -
requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or
prohibiting the person named in the order under this section from having contact with the child.'

Only certain persons fall under the category of "person named in the order." These are set out in s.51A(3) and include the following individuals:

a. any person who (but for the child's adoption) would be related to the child by blood (including half-blood), marriage, or civil partnership;
b. any former guardian of the child;
c. any person who had parental responsibility for the child immediately before the making of the adoption order;
d. any person who was entitled to make an application for an order under section 26 in respect of the child (contact with children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section; and
e. any person with whom the child has lived for a period of at least one year.

Whilst the category of persons who may be "named" in a post-adoption contact order is broad, the right to apply for an order is limited: the adopted parent(s) and the child have an automatic right to make an application under s.51A(4)(a) and (b); all other persons who are identified as having the ability to be "named" in the order under s.51A(3) must seek the leave of the court to make the application [s.51A(4)(c)].

When deciding whether to grant leave to those persons under s.51A(3), the court must consider the following:

a. any risk there might be of the proposed application disrupting the child's life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act);
b. the applicant's connection with the child, and
c. any representations made to the court by (i) the child) or (ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made [s.51A(5)].

Section 51B goes on to set out how s.51A should work in practice. Pursuant to s.51B(1)(a) and (b), an order under s.51A may contain directions about how it is to be carried into effect, and can be subject to any conditions that the court thinks appropriate. The order remains in place until the child's eighteenth birthday, unless it is revoked [s.51B(1)(d)], and an application for the variation or revocation of the order may be made, without leave, by the child, the adopter, or the person named in the order [s.51B(1)(c)]. The court is required in all cases, including the adoption application itself, to draw up a timetable with a view to determining without delay whether to make, vary, or discharge a s.51A order and to ensure that this timetable is followed [s.51B(3)].

Under s.51A(2)(b), the court can make a prohibition on post-adoption contact of its own initiative; however, it cannot do so for an order for post-adoption contact [s.5A(6)]. It should be noted that s.51A (and B) only apply where a court is making, or has made, an adoption order following placement for adoption by an adoption agency. In all other cases (i.e. a non-agency placement), provision for post-adoption contact will be made under s.8 of the CA 1989.

When making a decision about post-adoption contact – both in respect of granting leave to make the application and the application itself – the court must determine whether it is in the child's best interests, with reference to both the factors in 51A(3) and the welfare checklist under s.1(4) of the ACA 2002. As stated in s.1(2) of the ACA 2003, the paramount consideration of the court (or adoption agency) must be the child's welfare throughout his life (emphasis added). In other words, it must be shown that post-adoption contact would be beneficial to the child both now and in the future.

Sections 51A and 51B in Practice
Replacing the procedure for post-adoption contact under s.8 of the CA 1989, ss 51A and 51B of the ACA 2002 provide the court with a specific power to make orders concerning post-adoption contact, both before and after the adoption is finalised. These orders may be "positive," compelling the adoptive parents to make the child available to spend time with a named person, or "negative," preventing the child from having contact with a named person. 8 The new focus on the welfare checklist in the ACA 2002, rather than the welfare checklist in the CA 1989, embodies the recognition that post-adoption contact, like adoption itself, has life-long implications for the subject child.  9

However, it is arguable that sections 51A and 51B make it even more difficult to obtain post-adoption contact than prior to the ratification of the CFA 2014. Two provisions in particular may be regarded as "setbacks" to acquiring post-adoption contact: (i) the need for certain persons to apply for permission to make an application for post-adoption contact, including birth parents and birth siblings; and (ii) the ability of the court to make a prohibition on contact order of its own volition.

Prior to the introduction of the CFA 2014, birth parents/siblings did not need to obtain leave from the court to apply for a post-adoption contact order under s.8 of the CA 1989. As such, ss 54A and 54B introduce an additional stumbling block to the already difficult task of acquiring a post-adoption contact order. Similarly, the ability of the court to make an order prohibiting contact of its own volition (albeit not a contact order facilitating contact) exemplifies the main aim of the legislation, namely to reduce the allegedly destabilising effect of post-adoption contact on adoptive placements.

Conclusions
Qualitative research indicates that those children who have post-adoption contact with their birth relatives are generally pleased with their contact and would wish it to continue. 10 Some of the benefits that the children associate with post-adoption contact include: continuing a relationship with a relative to whom the child is emotionally attached; providing reassurance that the birth relative is safe; enabling the child to understand why she was adopted and her birth parents' difficulties, thereby reducing self-blame; and assisting with issues of identity.11  However, with the insertion of sections 54A and 54B into the ACA 2002, the statutory law has arguably taken one step forward and two steps back in the movement towards "open adoptions."

This article addresses one of the topics in "Public Children Law: Contemporary Issues" by Bianca Jackson and Alexander Laing, both of Coram chambers, published by Bloomsbury Professional which is available to purchase here.

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1  See, for example, Re M (a minor) (adoption order: access) [1986] 1 FLR 51, CA; Re V (a minor) (adoption: consent) [1987] Fam 57, [1986] 1 All ER 752, [1998] 2 FLR 89, CA; Re GR (adoption: access) [1985] FLR 643, CA.
2  Neil, 'The benefits and challenges of direct post-adoption contact: perspectives from adoptive parents and birth relatives' (2010) 27 Aloma, 89-115, 90.
3  Neil, 'The benefits and challenges of direct post-adoption contact: perspectives from adoptive parents and birth relatives' (2010) 27 Aloma, 89-115, 90.
4  This article focuses primarily on the statutory provisions in respect of post-adoption contact. For a more in-depth analysis of the case law, see: Laing and Jackson, Public Children Law: Contemporary Issues (Bloomsbury Professional: 2018).
5  See: X and Y v A Local Authority (adoption; procedure) [2009] EWHC 47 (Fam).
6  Butterworths Family Law Service (LexisNexis: February 2018) 4291.
7  Ibid.
8  Sloan, 'Post-Adoption Contact Reform: Compounding the State-Ordered Termination of Parenthood' (July 2014) 73(02) CamLaw, 378-404, 391.
9  Sloan, 'Post-Adoption Contact Reform: Compounding the State-Ordered Termination of Parenthood' (July 2014) 73(02) CamLaw, 378-404, 393.
10  Neil, 'The benefits and challenges of direct post-adoption contact: perspectives from adoptive parents and birth relatives' (2010) 27 Aloma, 89-115, 91.
11  Neil, 'The benefits and challenges of direct post-adoption contact: perspectives from adoptive parents and birth relatives' (2010) 27 Aloma, 89-115, 91-92.