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Applying for contact AFTER a child is adopted

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

Click to access ukpga_20140006_en.pdf

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—

“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 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

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 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 ]

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)    .

I am aware that my analysis of this has probably stirred up feelings of hope for birth parents and a degree of anxiety for adoptive parents. I am also aware that the Adoption Tsar, Martin Narey, considers that the provisions of s51 are primarily about allowing adopters to control contact and that there is no need for anxiety. I don’t want to make people worried unnecessarily, I’m not interested in scaremongering.
But, the power of the Court to make an order for contact AFTER the adoption order has been made is one that is within the new Act, and the power for a birth parent to seek to make that application is also there.  (I have seen the new application form, and it also makes it clear – there’s a box to fill in if you are a biological parent, and a box to fill in if the adoption order has already been made)
For me, the wording in s51A is clear – an order about contact can be made AFTER the adoption order is made, and an application can be made by a parent. The parent needs leave, and we simply don’t know at this point how the Courts will approach that leave decision. Post Re B-S, any application for leave is not as hopeless an application as it would have been a year ago, and the same is possibly true here.
For the child, it is certainly the case that contact post adoption won’t be ordered unless the Court look at it carefully and decide that it is in the child’s best interests (and the burden falls on the person seeking that contact). But for the adopters, and the parents, the actual leave application can still be stressful and anxious – both will have to attend Court and won’t be sure of the outcome.
As discussed in the blog immediately after this one, it seems highly likely that a biological parent won’t get legal aid to make the application – whether that makes things better or worse from an adopters point of view is hard to call.


About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

25 responses

  1. “You also need to bear in mind that the current caselaw on making contact orders against adopters is not terribly helpful to parents.”

    That is legally inaccurate and factually tendentious. It should read:

    “You also need to bear in mind that the current caselaw on making contact orders against parents is not terribly helpful to former and biological parents”

    because of course adopters ARE parents.

    This foolish provision is just another attempt to discourage adopters by depriving them of the security in parenthood which other parents take for granted. The sooner we return to adoption being final and records being sealed at least until the child is of full age, the better. Until then the best advice you can give to adoptive parents is to make themselves scarce, go and live in another part of the country, ex-directory, and don’t leave a forwarding address.

    • A fair point, Andrew – of course, once the adoption order is made, adopters are parents (at the time that the decision is made in the caselaw prior to s51, they weren’t legally parents, but were in practice).

      I think if I were advising someone who was an approved adopter at the moment, I’d be telling them to adopt from overseas, until the Courts sort out in their own mind how much of a role biological parents will be having in their future.

      I have been sent an interesting piece of research on adoption and post adoption contact, which is worth people checking out – don’t be offput by the American logos, it is about English (and Welsh) law and systems

      [It is interesting to me that their take, as academics is that the new Act is positioning post-adoption contact as being harder to achieve, whereas I think potentially it is the opposite depending on whether s51 orders will ever be made or whether they are just theoretically possible but won’t emerge from real cases, but I like seeing a different perspective]

      That does touch upon the hybrid that English adoption has become, because at the moment we don’t have the ‘transplant’ style adoption that we originally started in (which is what you are talking about), nor the more European style of adoption where the parent continues to play an active part, but something that is neither wholly one thing nor the other.

    • Let me get this straight Andrew, you are advising Adopters to flee? Have you been taking notes from John Hemming? I know you have posted some weird stuff in the last few days however fleeing is probably not the best route for either adoptive or birth parents.

      • I write bucco-lingually, Matt, which means tongue-in-cheek, and as a general rule if John Hemming says that the weather looks set fair I expect rain.

        But it’s a fact that if the ex-parent cannot find the real parents – which is what they respectively are – then she (almost always she) cannot serve them, which will protect the child from having the stability of his or her family life disrupted. As you will gather, I regard the biological parent as an interloper in the child’s life and think she should be rigidly excluded from all contact and from finding the child even after adulthood. I would indeed prefer to maintain privacy the opposite way too.

    • What 1968 psychology books have you been reading? The prevailing view in the 60’s la Bowlby etc was that kids have to sever attachments to birth parents before new, ( read healthy) attachments can be made…this like many ‘givens’ is challenged by many of those practicing in adoption and long term fostering where it can be easily seen that kids make new healthy attachments AND in fact the more healthy attachments the better for long term emotional well being. By the way if you lift your head out of those outdated books you’ll find we now have Facebook…if you write off post adoption contact where the potential of the birth parents to manage it safely and in kids best interests can be assessed you’re setting up a potentially risky situation when little Johnny/ Jenny gets to an age where they legitimately want to know where they come from. I speak as a former social worker of some 20 years.

    • @Andrew

      Thanks for clearing that up. However I believe that things are not always so black and white, being fanatical for one side or the other tends to blind people to certain issues.I am rather curious of how you would solve post adoption issues in light of today’s social media? I am not trying to take sides merely looking for the best solution for ALL parties involved.

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  3. Ah, the legal fiction that adoptive parents become real parents. In a socially networked world, adoptive parents need to recognise that reunification is inevitable in many many cases at some point down the line. To ignore this reality will cause many adoptive parents huge distress in years to come as they feel abandoned by their ‘children’.

    • If by “down the line” you mean after adulthood; alas, you are right. But that is no reason not so to keep the files that anonymity is preserved – if can be done – and not to make it as difficult as possible for the former parents to upset the applecart before then – if not to exclude the possibility altogether. Then as the child matures the parents can explain the background in a manner appropriate to age and understanding, as we all explain things to children, and prepare themselves for the possibility that one day their child will want to investigate further.

      The quotation marks round the word children are unworthy, Peter.

      • Why ‘unworthy’? ‘Unworthy of what? Is it unworthy to point out the reality that the legal fiction that leads adoptive parents into a possessive and defensive mindset that the children are “theirs” in every sense of the word is fundamentally flawed? This legal fiction does not accord with human nature. Children cannot be “re-potted”.

        Binding factors of biology, heritage, identity, impact of loss, and the yearning for “genealogical connectedness” cannot be extinguished by a judge dispensing with natural parent consent, making an adoption order, and serving cake with balloons.

        Judges do not see the long term impact of unhappy adoptions, adoption breakdowns, and later life natural family reunifications. Natural families cannot be extinguished.

        When (and if) adoption is needed, in the majority of cases this should be negotiated/mediated on the basis of on-going contact with natural family members. Only a very small proportion of natural families (they do exist and I have met several) are so disturbed/deviant as to completely exclude this possibility.

  4. I would like to quote an extract from the The Adoption and Fostering Information Line based in the United Kingdom:
    “the most basic argument for preserving contact after adoption is the fundamental truth that the link between children and their birth parents can never be broken – whether contact is maintained or not.”

    Independent adoption consultant Hedi Argent, who edited the book ‘Staying Connected: Managing Contact Arrangements After Adoption’, published by BAAF, believes that trying to sever the ties between children and birth parents is not only impossible, it can lead to disaster. She said: “It’s important to maintain continuity, because children can’t make a fresh start unless they take the memories and experiences of their past lives with them.”

    “It’s much more difficult for a child to settle in an adoptive family if its connections with its birth family are cut; in fact, it’s a nonsense to say that you can cut those ties. Even if you physically separate children from their parents, emotionally they’ll never be cut off – because it’s impossible to say goodbye.”

  5. Adoption is supposed to be in the best interests of the child. It is never in a child’s best interest to cut them off totally from all their biological family. Any adopter who refuses to see this is clearly acting in his or her best interests and not the child’s. I suspect the hurdles here will be too high for meaning contact. We all need to know where we came from.

    • I am going to have to disagree when it comes to the admittedly microscopic percentage of parents who are actively violent towards their children. However, I agree that there are many cases in which birth parents should be allowed to have meaningful contact post-adoption.

  6. Jerry Lonsdale

    one would feel that this would be an almost none starter for adoptions that have been finalised for numerous years.

    In all opposition to adoptions I have assisted with Sec. 26 and Sec. 27 ACA 2002 I felt were about as good as it gets when determining contact post adoption.

    would a contact post adoption application fall under the guise of Child Arrangement Order?, I would hope it does not because the two are poles apart.

  7. This is one change I am happy to say I agree with, post-adoption contact is an issue that the Courts have previously been quite reluctant to address, I have been looking for an avenue to approach the matter following an Application I made to the High Court in 2011 post the making of an Adoption Order to address the issue as to how Local Authorities and the Courts handle this matter prior to the making of an Adoption Order. The application was made in the respect of a Human Rights Claim against the Local Authority as it seemed there was no other avenue available to take.

    Whilst the application was deemed to fail as the Court could not deal with the issue against the Local Authority due to it being post the making of the adoption order there were many outstanding issues which the Court could not seem to grasp as in a wider context, as indicated on the order given;

    Upon Hearing Leading Counsel for the Claimant and Leading Counsel for the 1st Defendant

    And Upon it being agreed that for the purpose of Legal Argument only in the application of the defendant to strike out the claim in respects of a) the status of the Local Authority as a public body under the provisions of the Human Rights Act 1998 and b)continuation or otherwise of the Article 8 between natural parent and child (ECHR) after the making of an adoption order can be decided at first instance on the basis of the disputed facts contained in the documents filed

    And Upon the Defendant Local Authority agreeing to undertake to file evidence in respects of the expressed intention or otherwise of A’s Adoptive Parents to continue to provide indirect contact (exchange of information) twice a year; the adopters having been fully informed of the likely consequential applications being made pursuant of the Children’s Act 1989 should the cease to participate in the contact.

    It is further agreed that the statement of the Social Worker in respect of the expressed intention of the Adopters will be filed no later than the 16th March 2012.

    Unfortunately this application failed due to the fact that the Adoptive Parents would not attend or take part in the proceedings and the issue having to be addressed through the Social Worker and the Local Authority.

    The sad fact is that the actions of Local Authorities prior to the making of the Adoption Order are not held to account, they provide false information to panel and the Court in order to obtain the placement order and the panels approval. More often than not the Court’s failed to fully address the issue of post adoption contact fully and it was very rare for a contact order to be issued with the adoption order. Once the adoption order is given birth parents had little or no chance of being able to obtain a contact order.

    I am hoping that this change in legislation will allow parents who have already lost their child and then given a further blow when the contact they were promised prior to the adoption order being made is cut down or completely severed some kind of recourse.

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  9. i wud give anything to have contact with my younger 2 children my daughter knows who i am an my son she has reciently started writin her own letters to me plus means my eldest cud see his brothr aN SISTER ASWELL

  10. Thank you all for your comments – this is a difficult, and of course emotive topic. It highlights something that was in the back of my mind, that contact post adoption is really inextricably tied up with what the attitude of the State is to adoption. Is it something like a “transplant” model, where the children are moved permanently from one carer to another and the biological parents are effectively to be excluded from the children’s lives? Or is it more like the French model where there is a philosophy that the children need permanent care from someone other than their biological parents but that their biological parents still have a part to play.

    I simply don’t know whether the French system might result in happier, better adjusted children, with more stable placements and better outcomes in life, or whether our model is better. Nor do I know how one would conduct research that would tell you, but it seems to be an approach worth looking into.

    Whether s51 ever produces an actual order for post adoption contact remains to be seen, but it is something of a marker from Parliament that the ‘severing of the legal relationship between the child and the biological parents’ is not absolute – there is some sliver of legal recognition that the biological parents have some legal standing to make such an application (albeit with leave) that didn’t exist in the previous law. Once the adoption was made, we had a legal situation (some might argue legal fiction) that the biological parents had no legal rights.

  11. Jerry Lonsdale

    Kirsty, casting your mind back to that particular Part 8 claim was that in essence there was no legislation available to direct in which the problems you raise above and the problems you faced could be addressed, Messrs Anthony Hayden QC and Alison Russell QC were sought by the Judge to attempt to jointly draft some form of Practice Direction, like you say though that fell by the wayside,

    With this new Section 51a I feel it still does fall quite short in addressing the fundamental problems you faced, in that the Adopters would be the only party in response to any contact application and thus likely to be prone to destabilising the actual adoption placement, the courts or other would not permit such an instance to occur.

    This could open a mass of problems for the first person to attempt to submit an application for post adoption contact, the respondents can only be the Adopters, even with the adopters being represented by leading counsel the problems would still arise at the very beginning, who do you put down as a respondent on the initial application form?

    I have too many questions about this but Kirsty like we said we may have to test how deep the waters are in due course.

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  13. Eugene Soifertis

    How is it possible not to understand that any forced adoption is a crime against humanity? Only if parents are convicted criminals and no one else from relatives or friends want to take care of a child he should be forcefully adopted. No use to explain blind people what colour is.I do hope that recent hearing of a Petition Conmitee of Europarlianent will help to end up this disgrace ! In Russia peasants could be sold till 1861.However, families were kept together. So nowadays we are elaborating, to give birth parents right to see kids or not.O yes, always possible to prove that white is black and vice versa.Some more demagogy.O what a senseless cruelty!

  14. “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’?”

    ‘Harm’ is defined in s.31(9) CA 1989 as “ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”

    It would appear that the ham does not have to be significant and therefore in relation to the how high the leave bar is set, it would seem quite high.

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