Introduction
The issue of post-placement contact in adoption proceedings has traditionally been approached with caution by the courts. One central concern has been the potential impact such contact may have on the prospects of securing adoptive placements. Many adopters may be reluctant to engage in ongoing contact with a child’s birth family, particularly where there are complex emotional or safeguarding concerns. Nonetheless, statutory provisions under the Adoption and Children Act 2002 (ACA 2002) set out a framework for considering contact after a placement order is made, balancing the child’s welfare with the rights and interests of those involved.
The Legal Effect of a Placement Order on Existing Contact Arrangements
In contrast with care proceedings under the Children Act 1989—where there is a general presumption in favour of parental contact—no such presumption exists under the adoption framework. Unless a contact order under section 26 ACA 2002 is made, an adoption agency has no obligation to facilitate contact between the child and any other person. In the absence of such an order, the agency has discretion to restrict or refuse contact without needing court approval, unless this would conflict with the terms of an existing section 26 order.
Once an adoption agency is authorised to place a child for adoption—either through parental consent or by a placement order—any existing contact orders under the Children Act 1989 (s 8 or s 34) automatically cease to have effect (ACA 2002, s 26(1)). Furthermore, no fresh application for a contact order under the Children Act 1989 may be made while the agency retains that authority (s 26(2)).
At this stage, contact arrangements are governed exclusively by sections 26 and 27 of the ACA 2002.
Duties Prior to the Making of a Placement Order
Before granting a placement order, the court has an express duty to consider the arrangements made or proposed by the adoption agency for contact between the child and other persons. The court must invite parties to comment on these proposals, and the agency must also take account of:
- The wishes and feelings of the birth parent(s) and, where appropriate, a father without parental responsibility;
- The advice of the adoption panel; and
- The factors in the adoption welfare checklist (ACA 2002, s 1).
The adoption agency has an ongoing responsibility to keep contact arrangements under review, and any proposed changes must be shared and discussed with parents and other relevant parties (s 27(4)).
Section 26 Contact Orders: The Court’s Discretion
Under section 26 of the ACA 2002, the court may make an order for contact while a child is placed, or authorised to be placed, for adoption. The order can require the person with whom the child lives, or is to live, to allow contact—whether through visits, stays, or other forms of communication—with a named person.
Importantly, the court may make such an order on its own initiative at the point of making a placement order (s 26(4)).
When deciding whether to make a section 26 order, the court must give paramount consideration to the child’s welfare in line with the overarching principles of ACA 2002, s 1. A section 26 contact order remains in force while the child is subject to a placement order, but it may be varied or revoked on application by:
- The child,
- The adoption agency, or
- Any person named in the order (s 27(1)).
Flexibility and Modification of Contact Orders
The terms of a section 26 order are not necessarily rigid. Under Adoption Agencies Regulations 2005 (AAR), reg 47(2), departures from the order can be made by agreement between:
- The adoption agency,
- The person for whose benefit the contact is ordered,
- The prospective adopters (if identified), and
- The child (provided they are of sufficient age and understanding).
Such agreements must also be communicated to all relevant persons.
Additionally, section 27(2) ACA 2002 allows an adoption agency to refuse contact required by a s 26 order in urgent cases where it considers such refusal necessary to safeguard or promote the child’s welfare. However, this urgent refusal must not last longer than seven days, and the agency has a duty to inform relevant individuals of the decision as soon as it is made (AAR reg 47).
However, and perhaps a significant message to embrace The President of The Family Division has recently issued guidance on the matter of post placement order contact in the case of:
Re S (Placement Order Contact) [2025] EWCA Civ 823 The case concerned the appropriate approach for the family court when making contact orders under section 26 of the Adoption and Children Act 2002 at the same time as making a placement order for a child (i.e., placing the child for adoption).
The key principles coming out of the Judgment are:
- Bespoke Analysis Required (79):
- The court must undertake an individualised, child-specific analysis of contact arrangements whenever it makes a placement order.
- A general or formulaic approach is insufficient and contrary to statutory requirements.
- Quote:
“The need for a bespoke analysis of the future contact arrangements in each case for each child, as required by the statute, cannot be too firmly stressed.”
- Phased Contact Orders May Be Appropriate (77–78):
- Courts can consider dividing contact into two phases:
- Phase One: Until an adoptive placement is identified.
- Phase Two: Once the child has been placed with prospective adopters.
- This reflects the changing context of the child’s needs during the adoption process.
- The court may:
- Allow for a review under s27(1)(b) before Phase Two, or
- Simply endorse the principle of continued contact in broader terms.
- Flexibility in Orders and Use of Recitals (80):
- Section 26 orders should allow for flexibility, especially when the future is uncertain.
- Instead of rigid, concrete arrangements, courts may:
- Record welfare conclusions and endorse contact plans through recitals in the placement order, or
- Use a flexible form of wording in the order itself.
- This enables courts to acknowledge the importance of ongoing contact while avoiding overly prescriptive terms.
So what is the significance of this case?
It provides important practical guidance for family courts and practitioners handling adoption proceedings by emphasising the need to:
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- Tailor decisions to the individual child,
- Plan for changing circumstances, and
- Prioritise long-term welfare over procedural rigidity.
Conclusion:
The legal regime governing post-placement contact reflects the tension between the need to secure stable, long-term adoptive placements and the recognition that ongoing relationships may, in some cases, promote a child’s welfare. This most recent guidance emphasises the importance of a bespoke, welfare-driven, and potentially phased approach to contact decisions.
