The family law provisions of the new Children and Families Act 2014 come into force on 22nd April.
The Act itself (as opposed to press releases boasting about how it will solve everything, give us free energy, a perpetual motion machine and bring peace and harmony to both the Middle East and the pro and anti-Europe wings of the Tory party) can be found here
There’s a LOT of it, so am going to try to tackle it in chunks. Today’s topic is going to be the new section 51A of the Adoption and Children Act 2002, which makes provision for applications for contact AFTER an adoption order has been made.
Historically, Courts have been able to consider applications for the contact that a parent would have POST-ADOPTION, but that application and determination of it would have been BEFORE the adoption order was made. Thus, the adoption order would in effect be the last time the child would be the subject of litigation, and the Court’s involvement in their life would end. (There are exceptions – as we saw in Re W the President was willing to overturn an adoption order to hear an appeal, there are adopters who end up being involved in subsequent care or private law proceedings themselves, but generally, once the adoption order itself was made, the Court were done with the child)
So, what about post 22nd April? Well, s9 of the Children and Families Act 2014 says this :- [bold bits are mine, for emphasis] – and it is important to note that this doesn’t just apply to adoption orders made after 22nd April, it applies to ALL adoption orders
9 Contact: post-adoption
(1) After section 51 of the Adoption and Children Act 2002 insert—
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 name d 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 civilpartnership;
(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. [This has a cut-off of not applying if it was more than 5 years ago, but seems to me that it would potentially cover relatives who cared for the child, foster carers, and possibly siblings]
(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
(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 connetion 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
Obviously, there’s a lot there, and it is written in Law not English.
The nub of it is, a birth parent, or someone with whom the child has lived for at least a year, can apply for an order for contact with that child, including staying contact, and the application can be made AFTER the adoption order is made. They will need Leave of the Court to make that application – i.e there is a two stage test – can you persuade a Court to give you permission to make an application for contact, and then the Court deciding whether your application succeeds and you GET contact.
Leave applications are tricky – if you imagine that there’s a high jump bar, and that the parent will get leave if they can jump over it, and won’t get leave if they can’t, that’s a helpful way to look at it. The problem is, making sure that everyone knows exactly how high that bar is set and that a Judge doesn’t end up setting it too high, or too low. (That has been the subject of much of 2013s law developments, with the Court of Appeal concluding that the bar on leave to oppose adoptions has been set too high for parents and needs to be adjusted to make it a fair test)
This test is contained in s51(5) which says that the Court MUST consider whether granting permission might disrupt the child’s life to such an extent that they would be harmed by it (note that this is NOT whether contact would cause that harm, but allowing the ARGUMENT about contact would cause that harm). The wording here is strange, in that the reference to ‘harm’ then says in the meaning given in the Children Act 1989. Does that therefore mean ‘significant harm’?
The Court MUST also consider the applicant’s connection with the child, and any views expressed by the child or the adopters.
You would have to say, in light of Re B-S, Re W et al of 2013, it is at best uncertain as to how any application for leave under s51 to apply for a contact order post adoption order being made would go. What we DO know is that the application would have to be served on the adopters (presumably via the Local Authority, as the parents won’t know the adopters address), and they would be represented in the leave argument hearing.
We don’t know whether public funding would cover a parent making a s51 application – it certainly isn’t automatic, which puts the parents in the hands of the generous discretion of the Legal Aid agency in making that decision. The adopters won’t automatically get legal aid to fund their legal costs either, even if they financially qualify. That probably leaves the adopters going cap in hand to the Local Authority asking for help with legal fees, or paying out of their own pocket, or trying to represent themselves (I honestly can’t see how the latter would work, particularly if the parent is representing themselves too)
In reality, a leave application can need the filing of evidence and a few hearings before the fight itself can take place. Note that in this leave requirement (unlike revocation of an SGO or Placement Order or leave to oppose adoption) there’s no requirement on the parent to show change or significant change since the order was made – they can just say that they want to have contact with their child.
The leave application can be a worrying and anxious time. It can potentially unsettle the child.
So my question really is
For a birth parent – is this a power that is potentially going to end up in you being able to get contact with your child post adoption, in which case it would be a good thing for you, or is it a ‘fake’ potential avenue that is actually a dead end just putting you through stress and optimism and then disappointment as each and every application for leave is refused? If it is the latter, why even put it in the Act?
For adopters – how does having this provision, knowing that you could be drawn into court proceedings and having to file statements and have arguments in court about contact, after the adoption order was made, make you feel? And again, are they applications that have a chance of being made, or are you going through stress and anxiety for nothing?
Unless you are actually going to make s51 contact orders on parents applications after the adoption orders being made, it seems to me to just cause emotional pain to the parents because of false hope, and emotional pain and anxiety to adopters as they go through the process. Does that then suggest that Parliament envisages that in some cases (not just the exceptionally rare ones) parents will succeed in these applications and get their contact? And how will that change the character of adoption?
And in a final round-up, what prevents a parent who fails to get leave under s51 making another application next year, or the year after, or the year after that? They may never get their s51 leave, but they could hope to make life awkward and difficult for the adopters, maybe get the adopters worn down to offer a compromise or agree the contact sought.
Well, what “stops” this sort of hopeless, frivolous or vexatious litigation in the Children Act 1989 (and ‘stops’ is a bit strong) is section 91(14) of the Children Act 1989, which gives the Court the power to say to a person who is making those applications, you can’t make them any more – or not without leave of the Court anyway
s91 (14)On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.
Two problems with this
1. s91(14) applies to orders or applications made under the Children Act, whereas a s51 application is made under the Adoption and Children Act 2002 – there’s no provision similar to s91(14) under the Adoption and Children Act (why would there be? Up until now, all applications ended once the adoption order was made)
2. Even if it did, all it does is turn the 2 stage test? (May I make the application, can I have contact?) into a 3 stage test (may I ask whether I may make the application, may I make the application, can I have contact?) And stage 1 still involves the adopters being notified, and having to come to court and fight the first stage, so really, what difference does it make?
So, to stop s51 applications being rained down on the adopters, the only real mechanism is to apply to the High Court to have the applicant declared as a vexatious litigant. That forbids them from making any Court application without permission of the High Court (so, we are back to the 3 stage test, with the problems already discussed)
[if you are interested further in the concept of vexatious litigants, this is a good speech on the topic, which gives the history and some projections for the future http://www.judiciary.gov.uk/media/speeches/2006/speech-mor-30062006 ]
You also need to bear in mind that the current caselaw on making contact orders against adopters is not terribly helpful to parents. It has effectively two strands – if the contact is agreed don’t make an order, and if the adopters don’t agree the contact there would need to be very compelling reasons to impose it on them. (Are those guidelines dead in the water now that s51 is upon us? Is there genuinely a different ethos in Parliaments, and thus the laws view on making contact orders against adopters? We’ll have to wait and see how the Court of Appeal views this) .