Re D-S and the impact of the PLWG November 2024 report in relation to post adoption direct contact
The recent case of D-S (A Child: Adoption or Fostering) 2024 EWCA Civ 948, involved an appeal by Slough Borough Council, supported by the Children’s Guardian, against a decision made by HHJ Tolson KC, who had refused a placement order for an 11-month-old child, named ‘C’. The mother had two older children aged 10 and 5 who were placed in a separate foster care placement to their youngest half sibling during the course of the care proceedings. The local authority subsequently filed its final evidence and sought a placement order for the youngest child with a plan for her to have contact with her parents twice a year and with also with her elder half siblings. At the final hearing the parents sought the return of all three children to their care, but the judge did not agree, and they did not challenge that decision. The parents however did not want their youngest child to be adopted and sought for her to remain in foster care.
The Judge at first instance refused the local authority’s application for a placement order and refused the local authority’s permission to appeal the decision.
The Court of Appeal allowed the local authority’s appeal and considered the Judge had not taken the correct legal approach, concluding that the welfare assessment carried out did not have the necessary balance and thoroughness. The Court of Appeal considered that instead of making a rounded welfare assessment, the Judge fell into the trap identified at para.68-69 in Re W (Adoption: Approach to Long-Term Welfare) [2016] EWCA Civ 793, [2017] 2 FLR 31 of elevating fostering into something that in his view ‘would do’, and therefore ruled out adoption. In fact, the “nothing else would do” test should be applied as a proportionality check, not as a standalone principle. The court ruled that the Judge had erred by elevating long-term foster care to the point where it was seen as an acceptable alternative to adoption, thus ruling out adoption prematurely.
The appeal was upheld, and a placement order was made, with the court emphasising that while family relationships are important, they did not outweigh the child’s critical need for a permanent “lifelong family,” which could only be provided through adoption.
Ms Bazley KC for the father sought to place particular emphasis on the question of contact and the modern thinking on the benefits of contact alongside adoption. In doing so, Counsel submitted that the Court of Appeal should remit the proceedings to the family court. This was argued this on the basis that the Court of Appeal did not have the information before them on which to decide that question. This would include evidence enabling them to evaluate the benefits of contact, weighed against the availability of adopters. It was raised that some occasions of sibling contact had been missed since the Judge’s order, which could indicate that the care plan alone is not a sufficient guarantee and that there should be a contact order. Before taking a decision about contact, it was argued the court should also equip itself with more information about C’s health and development. It was argued that that there should be an order that C’s contact with her parents and siblings should each take place three times a year.
Lord Justice Peter Jackson stated at para [54 & 56]:
‘C has a relationship with her parents and half-siblings. They understandably want to keep her within the family. I respect their position but, seen objectively, C’s family relationships are not of such importance that they can outweigh the predominant need for her to have a family of her own. This factor speaks in favour of contact taking place, if it can be arranged, after C is placed for adoption and later adopted.
…As to contact, the local authority can be expected to honour its care plan for current contact, and for a 3-month search for adopters who will accommodate meetings with family members. It transpires that there were two missed occasions of sibling contact for health and logistical reasons: that will have been a pity for the children but it does not signal the need for the court to impose a regime on the local authority that could only be changed though litigation if it proved problematic. Overall, it would not be better for us to make a contact order, in fact it might be detrimental to the greater priority of finding an adoptive family for C.’’
The Public Law Working Group recommendations in relation to post adoption contact
Since the decision in D-S, The Public Law Working Group chaired by Mrs Justice Judd has published its report dated 7th November 2024. The report considered that a ”wholesale reform’’ to the adoption process was required with specific focus on the following areas: post adoption contact, processes and procedures in court, access to adoption records, international adoption and adoption by consent.
Focussing on post adoption contact, the report recommended that it is important that Judges and Magistrates give priority to the determination of contact arrangements when
making a placement order.
At para.65 of that report, it considered the following issues were influential in coming to the PLWG’s recommendations:
i. There is considerable evidence that transparency and openness around the circumstances and experiences of the adoptee’s birth family is beneficial to an adopted child.
ii. The purpose of contact post-adoption is for the adoptee about enabling a process to help them understand their experiences and develop a sense of identity. Existing relationships with birth parents must change to take into account their different role as a result of the legal process of adoption.
iii. Separating siblings can lead to an enduring sense of loss.
iv. There are strong indications that face-to-face contact helps adoptees develop a sense of identity, accept the reasons why they were adopted and move forward with their lives.
v. However, ensuring that contact is safe for the child is pivotal to positive outcomes.
vi. Communication with and understanding from the parties involved in contact (birth parents or other relatives/adoptees/adopters) is an important component in its success.
vii. Despite the research indicating the benefits of face-to-face contact, where it can be safely managed, the overwhelming majority of cases continue to recommend only letterbox contact. Where direct contact does occur it often happens without any formal agreement being in place.
viii. Letterbox contact can prove problematic. A high number of arrangements stall as a result of one (or both) parties failing to maintain the arrangement. This leaves many adoptees without any effective contact from birth families.
ix. The experience in Northern Ireland tends to suggest that a shift in mindset by professionals involved in the process of adoption and strong guidance from the judiciary can bring about a change in approach to post adoption contact without the need for changes in primary legislation.
At para.82 iii the report suggested that when considering s.26 ACA 2002 orders:
‘’..Courts should consider how they can use s 26 ACA 2002 to set out clearly the assessed needs of the child to stay in touch with relevant members of their birth family beyond the point of the placement order (where prospective adopters may or may not yet be identified), particularly in cases where it would be detrimental for the child to have contact cut off at this stage. Any such orders end when the adoption order is made, but they may set the tone for what is planned will happen after the adoption order, ensure that long gaps in the planned contact do not occur, and allow for a period of time for the proposed contact to be actively supported by the adoption agency.
“Such orders may influence the search for adopters and focus the minds of professionals, prospective adopters and birth relatives on establishing a working contact plan. This may be a useful tool where children are considered to have a compelling need for ongoing contact, helping to avoid these needs being side-lined in order to make him or her more ‘adoptable’, an outcome that is incompatible with the notion of adoption as a service for children. [Neil, 2018]’’
In relation to orders made under s.51A ACA 2002, the report noted:
‘’Courts should consider, in the right case, the use of section 51A ACA 2002 which contemplates the making of a contact order now or at any time after the making of an adoption order. In some cases, that provision may be used to facilitate a review of contact by the court at a suitable time after the making of the adoption order, for example where direct contact is not appropriate at the time of the order but may be indicated at a time in the foreseeable future. We recognise that imposing an order on unwilling adopters is a very serious matter, and that the decision of the Court of Appeal in Re B outlines the limits in which it is appropriate. Adoptive parents will need to be fully involved in decisions about contact with a strong emphasis on the needs of the child. If the other recommendations in this report are accepted, we hope that with greater support and training for all concerned, decisions about contact are overwhelmingly likely to be made by consent.’’
How does D-S (A Child: Adoption or Fostering) sit alongside the recent Public Law Working Group’s Recommendations?
At the final hearing before HHJ Tolson KC in April 2024, C was 11 months old. Fortunately, the appeal decision was given without significant delay, with C being 15 months old at that time. The PLWG report, published three months after the decision in D-S, emphasised that imposing orders on unwilling adopters remains a serious matter, reaffirming the principles in Re B. However, in D-S, while acknowledging the importance of contact with C’s birth family, the Court of Appeal noted this would occur only “if” it could be arranged after C was placed for adoption and later adopted. The Court approved the local authority’s care plan, which proposed for biannual contact with the parents and siblings, but declined to make a contact order, prioritising instead finding an adoptive family for C.
The PLWG report calls for a significant shift in how face-to-face contact between adopted children and their birth families is approached. It argues that more attention should be given, throughout the child’s upbringing, to facilitating such contact, where safe. The report criticises the current system, where face-to-face contact is rare, as being outdated.
In D-S, as in many adoption cases, the local authority’s plan for direct post-adoption contact depends heavily on the adopters’ willingness to facilitate it. This is despite the factors in D-S favouring C’s contact with her birth family. The PLWG report highlights that adopters’ views on post-adoption contact may evolve, stressing the importance of ongoing education and training for adopters to help them understand the benefits of such contact. Commitment to contact is often high after initial training but can waver for various reasons, underscoring the need for sustained support throughout the process.
Research highlights that, where safe, direct post-adoption contact can benefit children; however its success largely depends on the adopters’ willingness to promote this. To drive the suggested “sea change,” the PLWG recommends extended training for all parties, including social workers, Cafcass/Cafcass Cymru, IROs, and adoption agencies, to encourage post-adoption contact. It also proposes detailed consideration of post adoption contact during care proceedings, particularly in the social worker’s final SWET and the guardian’s final analysis. Increased training and awareness, it is envisaged, may lead more adopters to embrace these arrangements thereby reducing the courts’ need to balance arguments regarding adoptive placement availability against maintaining birth family connections. While the child’s lifelong welfare remains the Family Court’s main priority, implementing the PLWG’s recommendations could offer parents some reassurance during highly stressful circumstances.
Only time will tell whether the PLWG’s report has the desired impact.
Yasmine El-Nazer
December 2024
