1. A crumb of comfort for a parent facing a care plan for adoption is a recommendation for direct contact post-adoption between the child and his/her parent or between siblings.
2. However, as HHJ Wicks in the case of R and C (Adoption or Fostering) [2024] EWCA Civ 1302 recognised, there can be no guarantee that direct contact will actually happen post-adoption. In that case, the judge refused to make placement orders for two young children, R and C, as he concluded that adoption would not support the children’s ongoing contact with their birth family, particularly their elder half-siblings.
3. The local authority appealed on two grounds: (1) The judge was wrong to conclude that the sibling relationship could not be preserved if he approved an adoptive care plan and (2) The judge was wrong to refuse placement orders on the basis that the mother “could not be completely ruled out”. The guardian supported the local authority. The mother opposed.
4. Refined further, the issues for the Court of Appeal were: (1) Did the judge err in concluding that the need for ongoing contact with the birth family outweighed the children’s need for a stable adoptive family? and (2) Did the judge appropriately consider the statutory provisions regarding placement orders and contact arrangements?
5. The Court of Appeal allowed the appeal, concluding that the judge’s refusal to grant placement orders was wrong. The court emphasised that the welfare of R and C necessitated placement for adoption, as it provided the permanence that long-term foster care could not offer. However, the court highlighted the importance of maintaining sibling contact, proposing arrangements for direct inter-sibling contact six times a year post-adoption.
6. Baker LJ observed that a key element in the judge’s reasoning was his assertion that “permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family”. He said: “As demonstrated by the summary of the case law set out above, that may have been true of all adoptions at one stage, and it remains true of some adoptions now. But it is emphatically not true of many adoptions and is at odds with the concept of open adoption which is now embraced as a model in what the [Family] President has called the modern world.”
7. He added: “The judge acknowledged that the severance of ties with the natural family ‘can sometimes be ameliorated by continued contact between the birth family and the adopted child’ and that, in this case, the local authority has ‘committed itself to a search only for adopters willing to promote direct sibling contact’. He discounted these factors, however, on the basis that ongoing contact ‘is at the discretion of the adopters’ and that ‘sibling contact cannot be guaranteed’ because ‘even adopters who are open to it initially may not continue to promote it after the making of an adoption order’.”
8. Baker LJ found that in these observations, the judge overlooked the fact that it was his duty to “set the template for contact going forward”.
9. Baker LJ’s comments about the changing nature of adoption do not come as a surprise in light of the publication of the report of the adoption sub-group of the Public Law Working Group ‘Recommendations for best practice in respect of adoption’. The report summarises the considerable evidence that transparency and openness around the circumstances and experiences of a child’s birth family is beneficial to an adopted child.
10. The report recommends that there needs to be a change in face-to-face contact between adopted children and birth families, with training and greater support and counselling for birth parents.
11. The key findings from the evidence around post-adoption contact are as follows: –
(i) The purpose of contact post-adoption is to enable an adopted child to understand their experiences and develop a sense of identity.
(ii) 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 an adopted child develop a sense of identity, accept the reasons why they were adopted and move forward with their lives.
(v) 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.
(viii) Where direct contact does occur it often happens without any formal agreement being in place.
(ix) 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.
12. Since the introduction of the Adoption and Children Act 2002, which established that a court can make a contact order with a placement order under s26, I have only had one case in 20 years where an order has been made and that was to secure to sibling contact. There is still a real fear amongst professionals that an order will deter prospective adopters and reduce the pool of prospective adopters.
13. Although the clear message from the Court of Appeal is that it is for the court to set the ‘template for contact’, in practice, courts are still reluctant to make orders at the placement order stage and are still prepared to rely on the goodwill of the local authority to identify adopters who will promote direct contact. Indeed, even in the case of R and C above the Court of Appeal approved recitals to the order setting out the ‘template’ for inter-sibling contact and did not make orders under s.26 of the 2002 Act.
14. In this ‘modern world’ practitioners must be alive to the benefits of direct contact so that orders under ACA 2002 s26 are made more routinely.
Hayley Griffiths
February 2025
Stuart Fuller adds: Since this article was drafted Ms Justice Henke’s judgement in Re F (A child) (future welfare: post-adoption contact : unconscionable delay) [2025] EWFC 13 has been published. The main significance of that case is Her Ladyship’s deprecation of the practice of adjourning cases by consent order and without proper consideration of the merits of extending the timetable, but it is also of note that while using the phrase “set the template” she declined to make a s26 order and chose to rely instead, in the old fashioned way, on the LA’s commitment to finding a placement that would “facilitate direct contact for identity purposes.”
