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February 9, 2021

I have recently represented a series of children who, for various reasons, couldn’t be placed together but had what professionals termed “essential” relationships with each other. Analysing the law and considering the vagaries associated with the implementation of care plans post placement order, we found ourselves reflecting on the grim reality that what was deemed an “essential sibling relationship” by today’s team of professionals might not be deemed so by the incoming placement team, the prospective carers matched with the children or the adoptive family at some point down the line. We wrestled with the question of how the current legislative framework could ensure that the children’s vital sibling relationships could be guaranteed to be preserved throughout their lives, with one placed in long-term foster care and the other(s) placed in an adoptive placement, and concluded that they could not. Absent a legal framework by which to guarantee sibling contact in the placements, we formed the view that care plans for adoption could not be recommended and thus the only placements for permanence had to be in foster care. This position was arrived at and received like a lead balloon. The following points informed our considerations:

  1. Though often referred to in family proceedings, there is no commonly held definition of or statutory definition of ‘open adoption’ in English law. How ‘open’ an adoption turns out will depend on the assessment of the Permanence Team and ultimately the view of those who adopt the children (who may change their mind at any point.) Open adoption is in the interpretation of the beholder and will be subject to change.
  2. The social worker allocated in the care proceedings, who will usually have considerable knowledge, understanding and sensitivity about the siblings’ relationship will typically not hold the case beyond a brief transfer post-hearing: the interpretation of the siblings’ relationship will inevitably change.
  3. There are often differences in emphasis between the social worker, social work management and the Independent Reviewing Officer in the weight placed on finding a placement over preserving sibling contact, particularly if the sibling not placed for adoption is continuing contact with the birth family and the other child is not.
  4. In light of often small numbers of possible fits in the pool of prospective adopters, it is highly likely that compromises will have to be made to find a suitable adoptive placement for the children. The placement team may well face the tantalising prospect of placing the children for adoption with an otherwise excellent fit and may choose to place the children for adoption in a family that would not support contact with the siblings and/or the parents for a variety of reasons (e.g. not wanting their adopted child seeing a sibling who is in contact with the birth parent.)
  5. The care plan sets out the Local Authority’s plan for the life of the Care Order. The moment a placement order is made, typically on the same day as the care order, there is no obligation on the Local Authority to abide by its care plan. The promotion of sibling contact under a care order is defunct because the care order has been surpassed by the placement order. Statute places no restrictions on the decision making of the Adoption Agency: a placement order gives the unfettered power to place a child for adoption.
  6. The moment a placement order is made, pursuant to S.25 Adoption and Children Act 2002, parental responsibility vests in the Adoption Agency, there is no legal requirement to promote contact (as there would previously have been under S.34 Children Act 1989) and there is no capacity of the parents or of the Guardian to hold the Local Authority to account and require it to abide by its care plan to promote sibling contact.
  7. There is no mechanism requiring the Local Authority to bring the case back for revocation of the Placement Order if no adoptive placement can be found that meets the children’s needs for sibling contact and it is possible that an application for revocation of the order will not be made or will take place a number of years down the line. During this undefined time the children have the potential to languish in limbo without sibling contact taking place at all.

In both the cases that I was involved in, we explored whether the essential sibling contact arrangements envisioned by the allocated social workers could be guaranteed by the making of an order pursuant to S.26 Adoption and Children Act 2002. Indeed, the court could, of its own motion, make orders that A had contact with B

The problem we faced was whether orders made under S.26 of the Adoption and Children Act 2002 were truly enforceable. The reality being that upon placement with any prospective adopters, parental responsibility would vest with the Adoption Agency alone (S.25 Adoption and Children Act 2002): neither the Local Authority nor the parents would share PR.

It seems unlikely that a Local Authority could be relied upon to seek to enforce a S.26 order for contact with a sibling against a prospective adopter with whom the child was placed. It would be highly unlikely that legal aid would be granted to the parents to make an application to attempt to enforce the order for sibling contact, and the parent concerned may not have the personal capacity to make an application for funding even if they could get it.

It is also entirely possible that the prospective adopters could simply change their minds or decide (for whatever reason) that contact was not in the children’s interests and simply stop it and there would be absolutely nothing that anyone else could do to make it happen.

We considered the case of Re B (A Child) (Post Adoption Contact) [2019] EWCA Civ 29 and reminded ourselves that the S.26 contact order is effectively a bridging order that would only last until the making of an Adoption Order in any event. At an adoption hearing the birth parents would not be parties and, considering the authority of Re R [2005] EWCA Civ 1128 there is no order that the Court could make to compel the adoptive parents to offer contact to birth parents if they didn’t want to offer it.

Bearing in mind all these issues, we were by no means convinced that the aspirations, hopes and genuinely-formed plans of the currently allocated social workers could translate into a guarantee that A and B would continue to have a meaningful sibling relationship (particularly given that A was having contact with the birth Mother) if B was placed for adoption.

No doubt the absence of guarantees about the continuation of the child’s existing significant relationships within the context of adoption is precisely why S.1 Adoption Children Act 2002 is drafted as it is. It specifically requires the tribunal considering a placement application to analyse the subject child’s relationships and have as its “paramount consideration” the child’s “welfare throughout his life.”

The legislation, therefore, mandates that the burden is on the tribunal to grapple with the meaning of B’s sibling relationships as they currently stand, and as they are likely to develop, precisely because the making of any placement order signals the potential end of those relationships in preparation for a new legal status being entered into.

In each case we have to start by considering the enhanced welfare checklist at S.1(4)(a), (c) and most particularly (f) to assess the existing relationships that the child has and the value of those relationships continuing for the reason that the making of the placement order means they are unlikely to.

Ryder LJ in the Court of Appeal case of Re B (A Child) [2014] EWCA Civ 565 at [35] developed the Re B-S [2013] EWCA Civ 1146 checklist requirement of an analysis of the different placement options before the Court and stated, at paragraph 35, that a Guardian effectively voicing an opinion that adoption is the best/most secure option is not sufficient: a careful and in-depth analysis is required of the pros and cons of placement options and of relationships.

The specificity of the statutory requirement of S.1(4)(f) means that no analysis of the child’s existing sibling relationships may be superficial – but often Together/Apart assessments are limited, often because of the age of one of the siblings. We use the phrase the “essential sibling bond” but I am left wondering how essential sibling relationships really are when age dictates a placement order for one child and the other is to be placed in foster care.

If we truly viewed and valued sibling relationships as essential, there would surely be an order that could be made to guarantee contact between siblings once a placement order has been made in respect of one of them. It leads me to the opening question of this piece – how essential is essential?

Rachael Morton