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IN THE COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM Coventry Family Court
HHJ Watson
Case Number CV/95/17
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
30/01/ 2019 |
B
e f o r e :
THE PRESIDENT OF THE FAMILY DIVISION
LADY JUSTICE KING
and
LORD JUSTICE COULSON
____________________
____________________
Vanessa Meachin QC and Sarah Jennings (instructed
by
Bailey
Wright & Co) for the Appellant (natural parents)
The Natural Mother was
represented
by
Her Litigation Friend, The Official Solicitor
Justine Ramsden (instructed
by
Kundert Solicitors) for the 1st
Respondent
(adopters)
Nicholas Goodwin QC (instructed
by
Warwickshire CC) for the 2nd
Respondent
Matthew
Brookes-Baker
(instructed
by
Johnson & Gaunt) for the 3rd
Respondent
(
child)
Hearing dates : 27th November 2018
____________________
HTML VERSION OF JUDGMENT APPROVED
____________________
Crown Copyright ©
Sir Andrew McFarlane P:
- This appeal, which concerns
post-adoption
contact,
is apparently the first case to
reach
this court following the implementation of Adoption and
Children
Act 2002 ['ACA 2002'], s 51A which, for the first time, makes provision for
post-adoption
contact
orders.
- The
child
at the focus of the proceedings, '
B',
was
born
in April 2017. Most unfortunately,
both
of
B's
parents are disabled in
respect
to their intellectual functioning which, in the case of
B's
mother, is a very significant disability. Understandably, at the time of the
baby's
birth
the local authority was concerned that, despite their earnest wish to do so, the parents may not
be
able to cope safely and adequately with her care. Consequently,
by
agreement, when the
child
was
but
a few days old,
B
moved with her parents to a
residential
assessment centre. At the same time, care proceedings were commenced in the local family court. Unfortunately, the
report
compiled
by
the assessment centre at the conclusion of the family's 12-week stay did not support the parents' continued care of their much-loved daughter. In August 2017 the court sanctioned the
baby's
removal
from the
residential
centre and she was placed with Mr. and Mrs. X, who were foster parents who had also
been
approved as adopters.
- In September 2017 the local authority applied for an order authorising them to place
B
for adoption under ACA 2002, s 21. On 20 October 2017, at the conclusion of the final hearing, Mr
Recorder
Norton QC made a final care order and a placement for adoption order. The local authority care plan
before
the court concluded that ongoing direct
contact
between
the parents and
child
was not appropriate. At the conclusion of his judgment, having
referred
to the "no direct
contact"
element in the care plan,
Recorder
Norton said:
"I stress that this is not a case where I have
been
asked to make any order for direct
contact,
but
I would
be
reluctant
to do so for
reasons
expressed
by
the
children's
guardian in her evidence. There is a risk that if I were to make an order for direct
contact
that these carers, or subsequent carers, may not wish to accept that. In turn, that may lead to either immediate
breakdown,
or difficulty in finding
B
a further placement. I also accept that the direct
contact
can, in some circumstances, lead to a risk of future
breakdown,
but
I do consider that this is a case where, especially where the carers have expressed a willingness to meet with the parents, and there is no suggestion of malice on
behalf
of these parents, that some further thought could
be
given to the issue of direct
contact.
I am, of course,
required
to consider
contact
when making a placement order. I am
required
under the Adoption and
Children
Act 2002, to look at the value to
B
of a continued
relationship
with her parents, if that can
be
achieved. I am not invited to make an order, and would not do so,
but
I do invite some further discussion
between
local authority, carers and, potentially, these parents, once they have had the chance to
reflect
upon my decision, to see whether, in the particular circumstances of this case, there is some possibility of ongoing, direct
contact,
but
I go no further than that. It would
be
inappropriate for me to do so."
- In accordance with the care plan, the parents'
contact
with
B
reduced
over the course of the following few weeks with the final visit taking place in early November 2017. In the same month,
B's
placement with Mr and Mrs X formally
became
an adoptive placement.
- Again, in November 2017, a meeting took place, for the first time,
between
B's
parents and the prospective adopters, Mr and Mrs X.
By
all accounts that meeting went well.
- In December 2017 Mr and Mrs X issued their application to adopt
B.
During preliminary directions hearings in the adoption proceedings the parents, who had indicated that they neither consented to nor sought leave to oppose the making of an adoption order, expressed a wish for
post-adoption
contact.
By
ACA 2002, s 51A(4)(c), a parent who wishes to apply for
post-adoption
contact
must first obtain the leave of the court to make that application. On 16 May 2018 a district judge granted these parents leave to apply for
post-adoption
contact
under s 51A. The final hearing of that application was conducted
before
HHJ Watson in August 2018, with judgment
being
handed down on 6 September 2018. Having conducted a thorough analysis of the issues, HHJ Watson
refused
the application for
post-adoption
contact,
recorded
in a
recital
the position of the prospective adopters as to the issue of
post adoptive
contact
and stayed the application for and adoption order.
B's
parents' application for permission to appeal against the
refusal
of a s 51A
contact
order was granted
by
my Lady, Lady Justice King, on 9 October 2018 principally on the ground that there was some other compelling
reason
for the grant of permission, namely that the implementation of s 51A, together with developing
recent
research
on the issue of
post-adoption
contact,
justified consideration
by
this court.
- We are grateful to counsel for each party who have addressed their written and oral submissions with the dual focus of, firstly, the judge's judgment and her decision on the particular facts of this case, and, secondly, the need for, and content of, any general guidance that might now
be
given
by
this court in
relation
to
post-adoption
contact.
The Statutory Context
- On an adoption agency
being
authorised to place a
child
for adoption (or placing a
child
for adoption who is less than six weeks old), ACA 2002, s 26(1) provides that any
contact
provision in a
child
arrangements order under
Children
Act 1989 ['CA 1989'], s 8 will cease to have effect; any order for
contact
to a
child
in care under CA 1989, s 34 will also cease to have effect in like manner.
By
ACA 2002, s 26(2)(a), while an adoption agency (in the present case the local authority) is authorised to place a
child
for adoption, or the
child
is so placed, no application may
be
made for a
child
arrangements order under CA 1989, s 8 containing provision for
contact
and no application may
be
made for a
contact
order under CA 1989, s 34. In such circumstances,
by
s 26(2)(
b),
the court does, however, have power to make provision for
contact
between
the subject
child
and any person named in the order. ACA 2002, s 26(3) gives detail of those who may apply for a s 26
contact
order as of right and all others, who must first obtain the court's leave
before
applying. In addition,
by
s 26(4), when making a placement order the court may on its own initiative make a
contact
order under s 26. ACA 2002, s 27 makes further consequential provision as to
contact
under a placement order.
By
ACA 2002, s 27(4):
"(4)
Before
making a placement order the court must:
(a) Consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person
contact
with the
child,
and
(b) Invite the parties to the proceedings to comment on those arrangements."
- The
regime
established
by
ACA 2002, ss 26 and 27 is important. It
requires
the court in every case
before
making a placement order to consider the proposed arrangements for
contact
and the views of the parties as to those arrangements. The court is given wide and flexible powers to make arrangements for
contact
between
the
child
and any other person in the period prior to any placement for adoption and thereafter during the operative period of the placement for adoption order. An order for
contact
under s 26 can
be
made in
response
to specific application or on the court's own initiative.
- A placement order continues in force until it is either
revoked
by
the court (under ACA 2002, s 24), or an adoption order is made with
respect
to the
child
or the
child
marries, forms a
civil
partnership or attains the age of 18 years [ACA 2002, s 21(4)]. A
contact
order made under s 26 may, therefore, cover a
relatively
short period
between
the making of a placement order and the subsequent granting of an adoption order, or, potentially for far longer periods if an early placement and adoption are not achieved. The power of the court to make an order under s 26 is not confined to the occasion on which the placement for adoption order is, itself, made,
but
extends to the entire period "while" an adoption agency is authorised to place, or a
child
is placed, for adoption [ACA 2002, s 26(2)].
- Where an application for a full adoption order is, subsequently, made, different provisions
relating
to
contact
apply. Prior to 22 April 2014, when ACA 2002, s 51A came into force, any provision for
post-adoption
contact
was made
by
a CA 1989, s 8
child
arrangements order, irrespective of whether the adoption followed formal placement for adoption
by
an adoption agency, or not. ACA 2002, s51A now provides a statutory scheme for
post-adoption
contact
following a placement for adoption order. Previous authorities, to which
reference
will in due course
be
made, must therefore
be
read
in the light of the new statutory scheme, albeit that those authorities, in so far as they apply to cases outside S 51A are likely to
remain
fully applicable to cases where provision of
contact
continues to
be
facilitated
by
an order under CA 1989, s 8.
- Irrespective of whether
contact
may fall to
be
ordered under CA 1989, s 8 or ACA 2002, s 51A, the court has an obligation to consider the
contact
arrangements. ACA s 46 (6) provides:
"(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."
- As this is the first case
before
this court with
respect
to the new
regime,
I will set the
relevant
parts of ss 51A and 51B out in full:
"Post-adoption
contact
51A
Post-adoption
contact
(1) This section applies where—
(a) an adoption agency has placed or was authorised to place a
child
for adoption, and
(b) the court is making or has made an adoption order in
respect
of the
child.
(2) When making the adoption order or at any time afterwards, the court may make an order under this section—
(a)
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
(b) prohibiting the person named in the order under this section from having
contact
with the
child.
(3) The following people may
be
named in an order under this section—
(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;
(e) any person with whom the
child
has lived for a period of at least one year.
(4) An application for an order under this section may
be
made
by—
(a) a person who has applied for the adoption order or in whose favour the adoption order is or has
been
made,
(b) the
child,
or
(c) any person who has obtained the court's leave to make the application.
(5) In deciding whether to grant leave under subsection (4)(c), the court must consider—
(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.
(6) When making an adoption order, the court may on its own initiative make an order of the type mentioned in subsection (2)(
b).
(7) The period of one year mentioned in subsection (3)(e) need not
be
continuous
but
must not have
begun
more than five years
before
the making of the application.
(8) Where this section applies, an order under section 8 of the 1989 Act may not make provision about
contact
between
the
child
and any person who may
be
named in an order under this section.
51B Orders under section 51A: supplementary
(1) An order under section 51A—
(a) may contain directions about how it is to
be
carried into effect,
(b) may
be
made subject to any conditions the court thinks appropriate,
(c) may
be
varied or
revoked
by
the court on an application
by
the
child,
a person in whose favour the adoption order was made or a person named in the order, and
(d) has effect until the
child's
18th
birthday,
unless
revoked.
(2) Subsection (3) applies to proceedings—
(a) on an application for an adoption order in which—
(i) an application is made for an order under section 51A, or
(ii) the court indicates that it is considering making such an order on its own initiative;
(b) on an application for an order under section 51A;
(c) on an application for such an order to
be
varied or
revoked.
(3) The court must (in the light of any rules made
by
virtue of subsection (4))—
(a) draw up a timetable with a view to determining without delay whether to make, (or as the case may
be)
vary or
revoke
an order under section 51A, and
(b) give directions for the purpose of ensuring, so far as is
reasonably
practicable, that that timetable is adhered to.
(4) Rules of court may—
(a) specify periods within which specified steps must
be
taken in
relation
to proceedings to which subsection (3) applies, and
(b) make other provision with
respect
to such proceedings for the purpose of ensuring, so far as is
reasonably
practicable, that the court makes determinations about orders under section 51A without delay."
- A number of clear points can
be
made about the s 51A
regime:
i) It only 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 [s 51A(1)];
ii) Where the section applies, it is not permissible to make provision for
contact
under CA 1989, s 8 [s 51A(8)];
iii) An order under s 51A may
be
made at the same time as the adoption order or at any time thereafter [s 51A(2)];
iv) An order under s 51A may make positive provision for
contact
to take place [s 51A(2)(a)] or may
be
an order 'prohibiting the person named in the order … from having
contact'
[s 51A(2)(
b)];
v) A wide range of former
blood
relatives
and others may
be
named in a s 51A order [s 51A(3)];
vi) An application for an order under s 51A (which can
be
made either at the time of the adoption or any time thereafter) can
be
made as of right
by
the adopters or the
child,
or
by
any other person who has obtained the court's leave to apply on the
basis
established in s 51A(5) [s 51A(4)];
vii) The court's power to make a
contact
order under s 51A on its own initiative is limited to making an order to prohibit
contact
under s 51A(2)(
b)
[s 51A(6)].
The established approach to
post-adoption
contact
- The approach that a court should take when there is an issue as to
post-adoption
contact
has
been
well settled for some time and does not, therefore, need extensive exposition in this judgment.
- Prior to the CA 1989 and ACA 2002, the court's powers were limited to attaching a conditionto an adoption order if it was necessary to make provision for future
contact.
The leading authority at that time was the House of Lords decision in
Re
C (A Minor) (Adoption Order: Conditions) [1989] AC 1, in which, having
reviewed
the then extant caselaw, Lord Ackner stated:
"The cases rightly stress that in normal circumstances it is desirable that there should
be
a complete
break,
but
that each case has to
be
considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the
child's
natural family to which the adopting parents do not agree. To do so would
be
to create a potentially frictional situation which would
be
hardly likely to safeguard or promote the welfare of the
child.
When no agreement is forthcoming the court will, with very rare exceptions, have to choose
between
making an adoption order without terms or conditions as to access, or to
refuse
to make such an order and seek to safeguard access to some other machinery, such as wardship. To do otherwise would
be
merely inviting future and almost immediate litigation stopped"
- In
Re
R (Adoption:
Contact)
[2005]
EWCA
Civ
1128; [2006] 1 FLR 373, the Court of Appeal
reviewed
the issue of
post-adoption
contact
some 4 months prior to the implementation of the ACA 2002. In the course of his leading judgment Wall LJ looked
back
at the House of Lords decision in
Re
C, given some 17 years earlier, with an eye to the new adoption legislation which was about to come into force:
"[47] It is, of course, the case that matters have moved on very substantially since
Re
C. When
Re
C was decided, the
Children
Act 1989 was not in force and adoption proceedings were not designated as family proceedings. Accordingly, if there was to
be
post-adoption
contact
between
siblings or other members of the adopted
child's
family, the only way that could
be
enforced was
by
conditions
being
written into the adoption order under section 8 of the
Children
Act 1989. Equally,
back
in those days it was more common, as Lord Ackner himself points out, for there to
be
no
contact
between
family members and the adopted
child
after there an adoption order had
been
made; although, of course, he
recognises
that there were exceptions to that rule.
[48] We were shown s 1 of the new Adoption and
Children
Act 2002, which is due in force later this year, which demonstrates the clear change of thinking there has
been
since 1976, when the Adoption Act was initially enacted, and which demonstrates that the court now will need to take into account and consider the
relationship
the
child
had with members of the natural family, and the likelihood of that
relationship
continuing and the value of the
relationship
to the
child.
[49] So
contact
is more common,
but
nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of orders for
contact
with which they are not in agreement is extremely, and
remains
extremely, unusual."
- In
Re
P (Placement Orders: Parental Consent) [2008]
EWCA
Civ
535; [2008] 2 FLR 625 the judgment of a court with considerable experience in these matters (Thorpe LJ, Wall LJ and Munby J),
returned
to the issue of
post-adoption
contact
and, following a full
review
of the earlier case-law which concluded with the judgment in
Re
R, went on to state:
"[147] All this, in our judgment, now falls to
be
revisited
under ss 26 and 27 of the 2002 act, given in particular the terms of ss 1(4)(f), 1(6) and (7) and 46(6). In our judgment, the judge in the instant case was plainly right to make a
contact
order under s 26 of the 2002 Act, and in our judgment the question of
contact
between
D and S, and
between
the
children
and their parents, should henceforth
be
a matter for the court, not for the local authority, or the local authority in agreement with prospective adopters.
[148] We have already expressed our surprise and dismay that D's
contact
with her mother was stopped
by
the local authority unlawfully, and without authority of an order from the court under s 34(4) of the 1989 act. The making of the placement order means, of course, that
contact
under the 1989 Act is no longer possible,
but
orders under ss 26 and 27 are not only possible
but,
in our judgment, necessary."
- On the facts of
Re
P the Court of Appeal considered that it was necessary for a court to maintain jurisdiction with
respect
to future
contact,
in particular
between
the two siblings who were the subject of the proceedings. The court therefore utilised the new jurisdiction under s 26 to make
contact
orders for the following
reason:
"[153] We
repeat
that our
reason
for taking this view is that the judge's judgment is predicated on the proposition that the
relationship
between
the two
children
is of fundamental importance, and that the
relationship
must
be
maintained, even if the
children
are placed in separate adoptive placement, or if one is adopted and the other fostered. In the circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave
contact
between
the
children
themselves, or
between
the
children
and their natural parents to the discretion of the local authority and/or the prospective carers of D and S,
be
they adoptive parents or foster carers. It is the court which must make the necessary decisions if
contact
between
the siblings is in dispute, or if it is argued that it should cease for any
reason.
[154] We do not know if our views on
contact
on the facts of this particular case presage a more general sea change in
post-adoption
contact
over all. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to
retain
control over the question of the
children's
welfare throughout their
respective
lives under ss 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for
contact
post-adoption
in accordance with s 26 of the 2002 Act [and] under s 8 of the 1989 Act. This is what Parliament has enacted. In s 46 (6) of the 2002 Act Parliament has specifically directed the court to consider
post-adoption
contact,
and in s 26(5) Parliament has specifically envisaged an application for
contact
being
heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make
contact
orders
post-adoption,
where such powers are in the interests of the
child
concern."
- In Oxfordshire County Council v X, Y and J [2010]
EWCA
Civ
581; [2011] 1 FLR 272, the judgment of the court (Lord Neuberger MR, Moses and Munby LJJ) concluded (at paragraph 9) that paragraphs 147 to 154 of
Re
P were not intended to affect the application of the conclusion in the earlier case of
Re
R that "the imposition on prospective adopters of orders for
contact
with which they are not in agreement is extremely, and
remains
extremely, unusual."
- Having
reviewed
the factual context and concluded that the application for
contact
in the Oxfordshire case should
be
dismissed, the judgment of the court continues [at paragraph 36]:
"It is a strong thing to impose on adoptive parents, it is "extremely unusual" to impose on adoptive parents, some obligation which they are unwilling voluntarily to assume, certainly where, as here, the adoption order has already
been
made. Was there a proper
basis
for taking that extremely unusual step? In our judgment, there was not. The judge found that the adoptive parents were genuine when they express their concerns, so what was the justification for imposing on them something they conscientiously and
reasonably
objected to, particularly when, as we have seen, they say that they have not ruled out the possibility of letting the natural parents have photographs in the future? As we have said, they are not to
be
saddled with an order merely
because
a judge takes a different view. The adoptive parents are J's parents; the natural parents are not. The adoptive parents are the only people with parental
responsibility
for J. Why, unless circumstances are unusual, indeed extremely unusual - and here in our judgment they are neither - should that
responsibility
be
usurped
by
the court? We can see no good
reason
either on the facts or in law. On the contrary, there is much force in the point they make, that they wish their status as J's parents to
be
respected
and seen to
be
inviolable - not for themselves
but
in order, as they see it, to give J the
best
chance for the adoption to
be
successful."
- The question of whether or not the judgment of the court in
Re
P moved away from the firm statement of principle made
by
Wall LJ in
Re
R, which might have
been
thought to have
been
settled in the Oxfordshire case where Munby LJ, as he then was, was a contributor to the judgment of court as he had also
been
in
Re
P, must finally have
been
determined
by
the decision a few months later in
Re
T (Adoption:
Contact)
[2010]
EWCA
Civ
1527; [2011] 1 FLR 1805 where the constitution of the Court of Appeal included Sir Nicholas Wall himself,
by
then President of the Family Division. The judgment of Wilson LJ, with whom Sir Nicholas Wall and Arden LJ agreed, dealt with the point in plain terms (at paragraph 22):
"In my view the judge might also
briefly
have
referred
to the established principles applicable to a contested claim for
contact
following adoption
by
a member of the
biological
family. In
Re
R (Adoption:
Contact)
[2005]
EWCA
Civ
1128, my Lord, then Wall LJ, stated:
'The imposition on prospective adopters of orders for
contact
with which they are not in agreement is extremely, and
remains
extremely, unusual'
In her energetic submissions Miss Evans suggests that that statement may now not in such absolute terms
represent
the law; and she cites to us the judgment of this court in
Re
P (Placement Orders: Parental Consent) [2008]
EWCA
Civ
535, in particular at [147]. The judgment certainly heralds somewhat greater flexibility in the attitude of the court to
contact
following adoption in certain cases.
But
the problem for Ms. Evans is that my Lord's statement in
Re
R was cited with approval in the very
recent
decision of this court in Oxfordshire County Council v X, Y and J [2010]
EWCA
Civ
581, at [8] and still
reflects
the general approach."
- The central question raised
by
the present appeal is whether the introduction into law of ACA 2002, s 51A has altered the test from that stated in
Re
R and subsequently endorsed in 2010
by
the Oxfordshire case and
Re
T.
The judge's decision
Before
HHJ Watson the parents' application was for direct
contact
with
B
for one hour twice each year on the
basis
that would
be
more easily managed than indirect, "letterbox"
contact
which would
be
particularly difficult for these parents in view of their cognitive difficulties. It was the parents' case that
B's
young age indicated that such direct
contact
would neither disturb nor disrupt her placement and would simply
become
part of her ordinary annual routine.
- The prospective adopters position was that
contact
should grow organically from indirect letterbox
contact
to face-to-face meetings on one occasion a year
between
the
birth
parents and the adopters,
but
not including
B
at this stage. The adopters considered that a face to face meeting
between
the adults would enable the parents to
be
better
updated about the
child's
welfare and development than would
be
the case if communication was confined to material. The adopters also suggested that the face-to-face meetings would provide an opportunity for a
relationship
to develop
between
the adopters and the
birth
parents so that future meetings might include the
child
once a trusting
relationship
had
been
established.
- The judge, who had
been
taken to the earlier case law, heard submissions from the Official Solicitor, acting on
behalf
of
B's
mother, to the effect that the legislative change
brought
by
s 51A must
be
seen in the context of its purpose which, it was submitted, was (in the judge's summary) "to
reflect
the changing view about the
benefits
of greater openness in adoption." The judge was
referred
to
recent
social work
research
which emphasised the importance of
contact
after adoption (The Role of The Social Worker in Adoption: Ethics and Human Rights: An Enquiry (
British
Association of Social Workers 2018)[1]. The judge accepted the
broad
thrust of that material stating [at paragraph 10]:
"I accept these findings and factor them into my analysis of the application
before
me. Each case is very different on its facts
because
we are dealing with people in a myriad of different circumstances and family dynamics.
But
what was once a closed door is now very much an open one and any court considering making an order as life-changing as an adoption order must carefully consider whether it would
be
in the
child's
best
interest to keep this door to the original family open through indirect and direct
contact."
- The judge went on to
refer
to some observations that I had, myself, made out of court in a speech delivered to the NAGALRO Annual Conference in March 2018[2] . In particular, the judge quoted from the following passage:
"I would encourage all those involved in adoption planning and decision making to focus more on the issue of
contact
and to ask, in each case, whether the model of life-story work and letterbox
contact
is in fact the
best
for the individual
child
in the years that lie ahead for her, or whether a more flexible and open arrangement, developed with confidence and over time, may provide more
beneficial
support as the young person moves on towards adolescence and then adulthood."
- The judge then
reviewed
the
basic
factual
background.
In doing so she noted the positive account of the very high level of care that the two adopters were providing for this young
child.
Secondly, she noted that the psychologist who had assessed the
child's
mother concluded that she had considerable difficulties in processing and understanding information and would
require
assistance in communicating her thoughts on adoption and that, even with a substantial amount of support, it would
be
likely that she would continue to have difficulty understanding and discussing the adoption of her
child
and that she presented as limited in her coping strategies.
- The psychologist's
report,
understandably, prompted the judge to observe that there was "a high risk of something inappropriate
being
said" and that "the parents would
be
unable to
remember
information or
retain
instructions, so agreements put in place to protect
B
are unlikely to
be
effective." The judge gave two
recent
practical examples where, inadvertently, the parents had acted in a way which might
be
a source of confusion for, or unsettle, a young
child.
- The judge noted a number of positives. Firstly, the one-off meeting
between
the prospective adopters and the parents had seemingly gone well. Secondly, the hearing
before
the judge had
been
conducted with
both
the adopters and the parents sitting in the courtroom in
relatively
close proximity. Thirdly, the court had
been
told that the address of the adopters had
been
inadvertently
revealed
to the parents, yet there has
been
no difficulty caused
by
this, and it was not suggested that there would
be
any future deliberate disruption of the placement. Having
recited
these various factors the judge stated, at paragraph 23:
"I acknowledge these positive indicators,
but
the adoption welfare checklist
requires
the court to have
regard
to
B's
best
interests throughout her life and that includes her identity and knowledge of her original family,
but
it also
requires
the court to look at her integration into her new family and how
best
that can
be
achieved. The wishes of her
birth
parents have to
be
balanced
against the views of her full-time carers."
- The opinion of the
children's
guardian was that it was
better
to
build
contact
up slowly, develop trust
between
the adults and
build
on the indirect
contact
once the adult
relationships
had
been
established. She described how
contact
should move at the
child's
pace.
- In moving towards her conclusion, the judge
reminded
herself of the duty to consider the
contact
arrangements under ACA 2002, s 46, together with the need to afford paramount consideration to the
child's
welfare throughout her life. The judge stated [paragraph 26]:
"I must
balance
all the factors of the welfare checklist in ACA 2002, s 1(4)
but
in particular I have to
balance
the likely effect on the
child
throughout her life of having ceased to
be
a member of the original family and
become
an adopted person against the
relationship
the
child
has with
relatives,
the likelihood of any such
relationship
continuing and the value to the
child
of its doing so."
- The judge noted that the adopters had already started "life story work" and that the social workers would continue to support the parents in undertaking any letterbox
contact.
The judge concluded, on that point, that she was "quite satisfied that the parents are not, and will not
be,
disadvantaged in facilitating
contact
because
of their cognitive difficulties and that proper measures have
been
put in place to support them." The judge also considered that the adopters' proposal for an annual face-to-face meeting would support the other work done to facilitate indirect
contact.
The judge
reminded
herself that the
child
would now
become
a member of the adoptive family and that she would
become,
in the eyes of the law, the adopters'
child
and that they would have exclusive parental
responsibility
for and,
by
law,
be
trusted to make all the decisions necessary to promote her security and to meet all her emotional, psychological and physical needs.
- The judge concluded her analysis as follows:
"29. [The adopters] have engaged with the social worker, the guardian, the court proceedings and are willing to engage fully and
regularly
with the
birth
parents once a year throughout
B's
childhood.
This demonstrates an open and empathetic attitude. In my judgment this is evidence of their commitment to meeting
B's
identity and sense of "other family". That openness is commendable and should
be
encouraged
by
allowing them to take full
responsibility
for developing
contact
at
B's
pace.
30. In my judgment [the adopters] have done exactly as
Recorder
Norton
required.
They have given "careful thought" to the question of direct
contact
with
birth
parents and have decided that now is not the right time. Their position is well
reasoned
and is not inflexible or
blinkered
and will
be
kept under
review
as
B's
needs change throughout her
childhood.
In addition, they will have a direct and personal
relationship
with
B's
birth
parents to inform the decision as to when would
be
the right time. I am satisfied they would look again at whether direct
contact
can take place and it is not necessary to make an order to achieve this. An order would shackle them
but
not offer a corresponding
benefit
to
B.
31. It is neither necessary, nor appropriate to fetter or seek to control [the adopters]
child
focused and sensitive approach.
32. I am quite satisfied that an order in this case is unnecessary and would not
be
in
B's
best
interests now
because
it would undermine the position of the adopters, ride roughshod over their good intentions and set in stone arrangements which are
better
to grow and develop organically to meet the changing needs of
be."
- In
response
to a
request
for clarification, the judge provided an addendum to the judgment, however, in my view nothing said there adds to the succinct and clear distillation of the issues that is plainly set out in the judge's original draft.
The Appeal
- The grounds of appeal and skeleton argument on
behalf
of the of the parents advanced eight grounds as to why the learned judge was wrong to
refuse
post-adoption
contact,
permission having
been
given on all
but
one. In oral submissions, given the presence of the natural parents at the appeal hearing and the Court's indication that all documents had
been
read,
three grounds were developed orally. The first
being
that the judge was wrong in her application of Section 51A Adoption Act 2002 namely that her analysis was
based
upon a presumption that direct-
post-adoption
contact
should only ordered in exceptional circumstances as set out in the case law pre-dating the enactment of the provision and the second and third grounds addressing the merits of a direct
contact
order in this case. Vanessa Meachin QC, leading Sarah Jennings, neither of whom appeared
below,
argued that the introduction
by
Parliament of ACA 2002, s 51A indicated an intention
by
the legislature that more parents would in future succeed in an application for direct
contact
post-adoption.
It was submitted that if no change in the law were intended, then the new provisions would necessarily
be
redundant.
In particular it was argued that the earlier case law, in which some priority was afforded to the views of the prospective adopters, no longer
represented
the correct approach under s 51A.
- The Appellants also challenged the judge's conclusion that there was, despite any sign of an intention to do so, the prospect that direct
contact
would destabilise
B's
placement or otherwise disturb her. Further it was argued that the judge had given insufficient weight to the
benefits
to
B
of ongoing direct
contact.
- In oral submissions the case was pitched at a high level on the
basis
that, if the present facts did not establish a
basis
of making an order for direct
contact,
then it would
be
difficult to conceive of any other case that might do so.
- Miss Meachin submitted that, whilst the judge had
referred
to
recent
research,
her judgment demonstrated that she had simply afforded priority to the views of the adopters, in accordance with the pre-2014 case law. Miss Meachin
realistically
accepts that it was, however, not for the judge to change the law.
- On the wider issues raised
by
the case, and the content of any guidance that might
be
given
by
this court, Miss Meachin and Miss Jennings aligned themselves with the submissions made on
behalf
of the local authority, to which I will turn shortly. It is to
be
noted that, to a large extent, the local authority submissions at odds with the Appellants'
basic
case which is that Parliament intended to extend the granting of direct
contact
to a greater number of cases and that the pre-2014 case law now has to
be
read
in the light of that interpretation of s 51A.
- The appeal was
resisted
by
the local authority,
represented
before
this court
by
Nicholas Goodwin QC, who did not appear
below,
1st
Respondent
adopters,
represented
before
this court
by
Justine Ramsden, who did appear
below
and the
Children's
Guardian,
represented
by
Matthew
Brookes-Baker,
who did not appear
below.
The local authority case, supported
by
the 1st and 3rd
Respondents,
is that the judge's decision should
be
upheld for the
reasons
that the judge had given. The determination to
refuse
to order direct
contact
was justified
by
the evidence and the applicable law and there was no ground
before
the judge for concluding that this very young
child's
welfare would
be
served
by
an order for direct
contact.
Mr Goodwin argued that the adopters' proposal was commendable, intelligent, flexible and
child-focussed
and, in many ways, a model example of how the issue of
post-adoption
contact
for a young
baby
should
be
managed. It was, he submitted, not possible to hold that the judge had
been
in error in concluding as she did.
- On the wider issue of whether or not the introduction of s 51A had changed the previous understanding of the law in
relation
to
post-adoption
contact,
Mr Goodwin drew attention to the 'Explanatory Note'
relating
to Part 1 of the
Children
and Families Act 2014
by
which the new provisions were introduced which
reads:
"The Act includes provisions which are intended to… Make changes to the arrangements for
contact
between
children
in care and their
birth
parents, guardians and certain others and adopted
children
and their
birth
parents, former guardians and certain others with the aim of
reducing
the disruption that inappropriate
contact
can cause to adoptive placements." [emphasis added]
- Mr. Goodwin submits that the court should adhere to the language of the 2002 Act without adding any additional gloss. On that
basis,
he argues that s 51A does not create a presumption either for or against
post-adoption
contact.
He does however point to the fact that, in contrast to the previous position where a parent could apply for a s 8
contact
order at the final adoption hearing without the need to obtain the leave of the court [CA 1989, s 10(4)(a)], Parliament has now imposed upon parents the need to apply for the leave of the court
before
making an application under s 51A [ACA 2002, s 51A(4)(c)]. The need for leave, coupled with
both
the wording of the Explanatory Note and the fact that the only order that a court may make of its own motion is to prohibit
contact,
do not suggest, submits Mr Goodwin, that Parliament was intending s 51A to
reverse
the approach in law as stated in
Re
R or otherwise to encourage courts to make more orders in favour of parents for direct
contact
and do so against the wishes of adopters.
- The local authority maintains that in the vast majority of placement for adoption cases, direct
contact
is terminated at an early stage after the order is made. It is said to
be
rare to see a ACA 2002, s 26 order for direct
contact
continuing during the life of a placement order.
- Mr. Goodwin submits that any discernible movement towards greater openness in adoption should
result
from debate amongst social work professionals which in turn should inform
reasoned
and particularised judgments given on the issue of
contact
on a case-
by-case
basis.
- Mr. Goodwin supports the maintenance of the current law, as stated in
Re
R, on the
basis
that there are sound policy
reasons
for not imposing direct
contact
upon unwilling adopters, save in exceptional cases. It is submitted that if adopters are led to
believe
one thing,
but
forced to accept another, the pool of potential adopters may shrink.
- Mr. Goodwin's written submissions concluded with a list of matters which, it was suggested, would
benefit
from endorsement
by
this court:
a) adoption agencies to ensure that all prospective adopters and all adoption social workers fully understand the developing
research
when undergoing training and approval;
b) in every case where
post adoptive
contact
is a
realistic
option, the local authority should file, during the placement proceedings, the
best
information available as to the pool of "open" adopters nationally and to ensure this is as specific to the subject
children
as possible;
c) the social work and
children's
guardian to consider the significance of the
research
studies in every case;
d) the court to provide full
reasons
on any s 26
contact
application;
e) sibling
contact
to
be
considered as an entirely separate exercise to parental
contact;
f) an open and frank dialogue
between
social workers, prospective adopters and
birth
parents and, if sufficiently mature, siblings about the
child's
needs, possibly with a face-to-face meeting as in this case.
- For the prospective adopters, Justine Ramsden, who appeared
below,
raised a note of caution over the course taken
by
Mr
Recorder
Norton in the observations that he made with
respect
to
contact
at the time of making the placement for adoption order. Although Ms. Ramsden does not criticise the comments per se, and observes that in the end the outcome has
been
positive, the fact that such observations had
been
made caused difficulty for the prospective adopters as they interpreted them as indicating that there was a good chance that the court would make a positive order for direct
contact
at the final adoption hearing. This state of affairs led to a delay of nearly one year ending in contested court proceedings on the issue of
contact.
Ms. Ramsden therefore urged caution in what is said at the placement for adoption stage and stressed that there was a need for the court to
be
clear so as to manage effectively the expectations of each party.
Discussion
- The starting point for any consideration of this issue must
be
the settled position in law had
been
reached
by
the decision in
Re
R, which was confirmed
by
this court in the Oxfordshire case and in
Re
T. The judgment in
Re
R was, itself, on all fours, so far as imposing
contact
on unwilling adopters, with the position described
by
Lord Ackner in
Re
C.
- As stated
by
Wall LJ in
Re
R, prior to the introduction of ACA 2002, s 51A, the position in law was, therefore, that "the imposition on prospective adopters of orders for
contact
with which they are not in agreement is extremely, and
remains
extremely, unusual."
- Although s 51A has introduced a
bespoke
statutory
regime
for the
regulation
of
post-adoption
contact
following placement for adoption
by
an adoption agency, there is nothing to
be
found in the wording of s 51A or of s 51B which indicates any variation in the approach to
be
taken to the imposition of an order for
contact
upon adopters who are unwilling to accept it. Indeed, as Mr Goodwin's submissions, in my view, establish,
both
the Explanatory Note and the fact that Parliament only afforded the court power to make orders of its own motion if such orders are to prohibit
contact,
Parliament's intention in enacting s 51A was aimed at enhancing the position of adopters rather than the contrary.
- Although Miss Meachin's submissions where
based
upon the assertion that the new provisions were intended to increase the number of adoption cases where an order is made for direct
contact,
she was unable to point to any material either within the new statutory provisions or elsewhere to support this assertion. In concluding she adopted the submissions of Mr Goodwin which were to the contrary and she did not submit that the judge made any error of law in the manner in which she approached the issue of
contact.
- The judge in the present case, having
referred
to
Re
R, noted the parents' submission that s 51A must
be
given a purposive interpretation in order to
reflect
'the changing view about the
benefits
of greater openness in adoption'
before
stating that she accepted
recent
research
findings with the
result
that 'what was once a closed door is now very much an open one'. The judge went on to conduct a conspicuously fair,
balanced
and thorough welfare analysis. In so doing, it might have
been
argued that the judge had fallen into error
by
moving away from the need to afford priority in the welfare evaluation to the views of the adopters. In the event, as paragraphs
29
to 31 of the judgment demonstrate, the judge did afford very substantial weight to the adopters' position:
'An order would shackle [the adopters]
but
not offer a corresponding
benefit
to
B.'
'It is neither necessary, nor appropriate to fetter or seek to control [the adopters]
child
focused and sensitive approach.'
- Looked at through the prism of
Re
R, the judge's order, which entirely accords with the views of the adopters, is entirely impregnable to challenge on appeal. There are no 'unusual', let alone 'extremely unusual', circumstances in the present case and there is therefore no
basis
upon which a court would have
been
justified in overriding the views of the adopters who are, as the judge rightly observed, to have exclusive parental
responsibility
for
B
and,
by
law, to
be
trusted to make all the decisions necessary to promote her security and to meet all her emotional, psychological and physical needs. In the event, HHJ Watson went further and undertook a full and
balanced
welfare evaluation which entirely supported the stance taken
by
the adopters. The quality of this judgment, which, again, is not open to any arguable challenge on appeal, in turn
bolsters
the soundness of the order for no direct
contact.
- What I have said thus far is sufficient to determine this appeal, which must, as a consequence,
be
dismissed. It would, however,
be
wrong, or at least unhelpful, to leave matters there without offering some further guidance as we have
been
requested
to do.
- ACA 2002, s 51A has
been
brought
into force at a time when there is
research
and debate amongst social work and adoption professionals which may
be
moving towards the concept of greater 'openness' in terms of
post-adoption
contact
arrangements,
both
between
an adopted
child
and natural parents and, more particularly,
between
siblings. For the
reasons
that I have given, the juxtaposition in timing
between
the new provisions and the wider debate does not indicate that the two are linked. The impact of new
research
and the debate is likely to
be
reflected
in evidence adduced in court in particular cases. It may also surface in terms of advice and counselling to prospective adopters and
birth
families when considering what arrangements for
contact
may
be
the
best
in any particular case.
But
any development or change from previous practice and expectations as to
post-adoption
contact
that may arise from these current initiatives will
be
a matter that may
be
reflected
in welfare decisions that are made
by
adopters, or
by
a court, on a case
by
case
basis.
These are matters of 'welfare' and not of 'law'. The law
remains,
as I have stated it, namely that it will only
be
in an extremely unusual case that a court will make an order stipulating
contact
arrangement to which the adopters do not agree.
- Although, for my part, I would not challenge the soundness of each of the suggested
requirements
that Mr Goodwin has helpfully set out in his skeleton argument, and which are listed at paragraph 50 above, these are very largely matters of social work practice, rather than law; I do not consider that it is appropriate for this court to raise any of the listed matters to the status of
being
something which the Court of Appeal has stated should now
be
required
in every case. That said, it must
be
a given that any social worker,
children's
guardian or expert who is
required
to advise the court on the issue of
contact,
will ensure that they are fully aware of any current
research
and its potential impact upon the welfare issues in each particular case. Equally, it is already a
requirement
that courts should give adequate and clear
reasons
for any orders that are made following contested proceedings.
Post-adoption
contact
is an important issue which should
be
given full consideration in every case [ACA 2002, s 46(6)]. Whilst there may not have
been
a change in the law insofar as the imposition of a
contact
regime
against the wishes of prospective adopters is concerned, there is now a joined-up
regime
contained within the ACA 2002 for the consideration of
contact
both
at the placement for adoption stage and later at the hearing of an adoption application. Further, and in contrast to the situation prior to 2014 where the issue of
contact
on adoption was determined under s 8
by
applying the CA 1989, s 1 welfare provisions, issues under
both
s 26 and s 51A of the ACA 2002 will
be
determined
by
applying the
bespoke
adoption welfare provisions in ACA 2002, s 1, where the focus is not just upon the welfare of the subject of the application during
childhood
but
throughout their life.
- A placement for adoption hearing has the potential for having an important influence upon the development of any subsequent long-term
contact
arrangements. As
required
by
ACA 2002, s 27(4), the court must consider the issue of
contact
and any plans for
contact
before
making a placement for adoption order. The court's order may well, therefore, set the tone for future
contact,
but
the court must
be
plain that, as the law stands, whilst there may
be
justification in considering some form of direct
contact,
the ultimate decision as to what
contact
is to take place is for the adopters and that the court will
be
'extremely unusual' for the court to impose a contrary arrangement against the wishes of adopters. Although Mr
Recorder
Norton was plainly most careful in his choice of words when speaking of
contact
at the time of the placement order in the present case, and I would not criticise him for anything that he said on that occasion, it is of note that his words were interpreted
by
the adopters as, in some way, flagging up that direct
contact
would
be
ordered at the final adoption hearing and that, as a
result,
the final adoption process has
been
delayed for a year and the adopters have felt less than fully settled in taking up the care of
B
as a
result.
At the placement order stage courts should therefore
be
careful to stress that, if there is any future issue as to
contact,
the law, as stated in
Re
R, will apply and, save for there
being
extremely unusual circumstances, no order will
be
made to compel adopters to accept
contact
arrangements with which they do not agree.
- In conclusion, if My Lady and My Lord agree, this appeal must
be
dismissed for the
reasons
that I have given.
Lady Justice King:
- I agree.
Lord Justice Coulson:
- I also agree
Note 1 https://www.
basw.co.uk/resources/role-social-worker-adoption-ethics-and-human-rights-enquiry
HREF='#
back1'>[Back]
Note 2 https://www.judiciary.uk/announcements/speech-
by-lord-justice-mcfarlane-contact-a-point-of-view [Back]
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