I’ve previously written about the relatively new provisions of the Children and Families Act 2014 that allow a birth parent to apply for direct contact even years after the adoption order was made.
I’m grateful to regular reader and commenter, Jerry Lonsdale, for posing me some questions that I didn’t know the answers to, and thus for making me go and find unexpected answers.
The provisions are set out in a new clause s51A of the Adoption and Children Act 2002
In order to make the application, a parent would need to obtain leave of the Court, and the Act sets out the things that the Court would need to consider.
S51 (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.
[It might have been helpful, given the wrangle that has previously taken place about whether leave to oppose adoption or leave to revoke a Placement order applications are applications to which the welfare paramountcy test applies for Parliament to have made that explicit. I think, though I would not put money on it, that when deciding the application for LEAVE, that the welfare of the child is a paramount consideration.]
We are probably getting the first of these applications made at present (and I’m aware that there is one such case in the High Court where the practical issues are becoming exposed)
In terms of practical issues, let’s look at them in turn – this has been a valuable exercise, because one element that looked very problematic when I first considered it has actually resolved on very close inspection. It might save someone else the detective legwork in the future.
1. How does the birth parent serve the adopters?
The birth parent won’t know the adopters address and nobody is going to tell them it. The Court MIGHT know it, if they were the Court who dealt with the adoption and they still have the file; assuming that the adopters have not moved since the adoption order was made. The other option might be for the Court to ask the Local Authority to serve the adopters – assuming that the Local Authority are willing to get involved and that the Local Authority have an address for the adopters. (Adopters aren’t obliged to keep a Local Authority informed of any change of address – they MIGHT, if they have a good relationship with their support worker or if they are receiving financial support)
You can’t go ahead with the application if the adopters aren’t served, because (a) that’s going to result in article 6 breach to the adopters and (b) The Court is obliged to consider the views of the adopters.
So not having a solid practical solution to that aspect is somewhat troubling.
If the adopters happen to have moved overseas since the adoption order was made, it is not at all clear to me that the provision would have any force at all.
2. Who is a party to the application for leave?
Well, the birth parent making the application is a party. The adopters would be a party, as respondents. And erm, that’s it.
The Local Authority are not a party to proceedings. They no longer hold any order in relation to the child, since the making of the Adoption Order ends their Care Order.
These applications are NOT specified proceedings for the purposes of section 41 (6) of the Children Act 1989 , and are thus not proceedings for which a Guardian is automatically appointed.
As we already established that applications under s51A don’t attract public funding (unless the applicant or respondent can convince the Legal Aid agency to give them ‘exceptional’ funding under s10 LASPO, which is as likely as Alex Salmond inviting David Cameron to rule Scotland by his side at the end of the month – perhaps wearing a Darth Vader costume) both the birth parent and the adopter will probably be litigants in person.
As such, neither of them will really fully grasp the test and the nuances and if we ever get any case law on it, won’t know it. Not their fault, it doesn’t mean that they aren’t bright or articulate, just that this whole thing is pretty impenetrable AND brand-new.
Probably neither of them will have a full set of the previous adoption papers and care proceedings – the adopters certainly won’t. The parents might, if they kept hold of them for a few years and ever had a complete set anyway.
So a Judge will be faced with two litigants in person (and a set of litigants who almost certainly won’t want to come into contact with each other), who don’t have the past papers and won’t know the law and process.
2(a) Options to get other people involved
The Court could invite the Local Authority to become a party. That would be an invitation – the LA can’t be forced to become a party. One would hope that the LA take up that invitation, but they might not. They might consider that the adoption was years ago and that everyone who knew the case is long gone, they might think that the adopters are from another part of the country miles away and that it would be better for THAT LA to be involved rather than them, the birth parents and adopters might not be living in that particular Local Authority by the time the application gets made, they might just be short-staffed and poorly funded or bloody minded.
If the Court invites the LA and they decline, I had initially thought that this was the end of it. It is not!
Rule 14.3 Family Procedure Rules 2010 (the section relating to any application under the Adoption and Children Act 2002, which this would be)
14 (3) The court may at any time direct that—
(a) any other person or body be made a respondent to proceedings; or
(b) a party be removed.
The Court therefore has the power to MAKE a Local Authority be a Respondent to such an application. And once they are a Respondent, the Court can make them file documents, skeletons, statements etc.
The application isn’t specified proceedings, but the Court can still appoint a Guardian, by appointing the child as a party under rule 14.2 of the Family Procedure Rules 2010 and then appointing a Guardian to represent the child.
(2) The court may at any time direct that a child, who is not already a respondent to proceedings,
be made a respondent to proceedings where—
(a) the child—
(i) wishes to make an application; or
(ii) has evidence to give to the court or a legal submission to make which has not been
given or made by any other party; or
(b) there are other special circumstances.
[You can’t do it under Rule 16.4, because that expressly excludes doing so in an application under the Adoption and Children Act 2002, so rule 14.2 is the solution]
You can of course still get the difficult situation where Local Authority A dealt with the care proceedings, the child is placed with adopters in Local Authority area B, and by the time of the adoption the birth parents are living in Local Authority area C. Which Local Authority does the Court make a Respondent? Which of the three areas provides a Guardian?
3. How does the Court make the enquiries about the risk of the application being disruptive / the benefits of it?
Well, it becomes substantially easier if the LA and Guardian are drawn into the mix. The Court can direct that those agencies carry out an assessment and provide a report.
If they are not made parties, the obvious solution that occurred to me was that they be directed prepare a section 7 report, but there is no power to do that on a s51A application for contact.
Section 7 of the Children Act 1989 (the power for the Court to direct that the Local Authority or CAFCASS provide a report to the Court advising on contact) applies to applications made under the Children Act 1989, and s51A applications aren’t.
4. What is the test going to be ?
Historically, the senior Courts have always made heavy weather of “leave” applications – they have always wanted to add gloss to the statute – often so much gloss that the test that one ends up with bears little relationship to the statute itself. You only have to look at the variety of judicial shorthand guidance on “leave to be joined as a party” in care proceedings – we have had everything from ‘arguable case’ to ‘strong arguable case’ to ‘strong prospect of success’ to ‘not vexatious, frivolous or fanciful’ and we now have the Court of Appeal guidance that one has to frankly forget all of the previous shorthand and guidance and just go back to what it says in the statute as factors to be considered and add in the human rights principles of right to family life, proportionality and right to fair trial.
But we do have slightly different tests for “leave to be joined as a party” (which is the “it’s the Act, stupid” test), “leave to revoke a placement order” (which is still officially Warwickshire, though everyone really thinks it ought to be identical to B-S) and “leave to oppose adoption” (which is B-S)
Which of those tests, if any, is going to apply to these applications?
Does the historical law on making a contact order post adoption still apply? (in essence don’t make a contact order if the adopters are agreeing to the contact and don’t make a contact order in the teeth of opposition from the adopters – leaving only a tiny patch of possible contact orders in wholly exceptional cases)
Is there a presumption that contact is good? Or a presumption that the status quo should prevail? Are either rebuttable presumptions? Or is it a completely blank sheet of paper?
Who the heck knows?
This whole area is going to be a complete joy for all involved.
You can argue about the pros and cons of adoption, but it is hard to see how a difficult situation can be made better by forcing the adoptive parents to self-fund/self-represent at a potentially limitless (unless declared vexatious?) series of these challenges. I know from personal experience how time consuming these things can be, and they are a huge distraction from bringing up children, especially those who have had a challenging early childhood.
If the biological parent were to make an application under the Children act Section 8, asking for permission to make the application and then the application its self
dependant on how old the child was when removed, the parent might attempt to claim a right to make the application if the child had lived with the parent(s) for 3 years or more within the last 5 years.
The biological parents might ask the Court to make a “seek and find” order to be able to get the Court to serve the application for contact served.
The adopters could respond on the service documents that there are “special requirements” – anonymity being one of them and ask for voice only video link between Court rooms.
Burden of evidence is on the applicant (biological parents). They would need to show that making of an order would be better for the child than to not make the order.
If successful, the Court can direct a Section 7 report. The local Authority would then want to have sight of the past files to inform their report.
A provision to deal with contact when making an adoption order is to make provision for future applications in the adoption order.
While reading the article, I did wonder if Special Guardianship Orders might be a way forward (in some cases) as under a special guardianship order the provision of support from the local authority is built in and provisionof assessing suitability for direct contact might be dragged into the range of provisions given to special guardians.
I think that would be the old theoretical basis (in practice, post adoption the birth parent has no legal standing to make the application), but now that s51A exists, any application would have to be made under this provision rather than under s8. I think the theoretical possibility that a birth parent could have made an application under s8 is what prompts Martin Narey to say that in his view s51A contains no change (I disagree)
Your suggestion of a Seek and Find order is a good one and worth some thought.
That power is s33 Family Law Act 1986
Where in proceedings for or relating to a [F1Part I order] in respect of a child there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.
Although, if the LA don’t know where the adopters are, it is hard to see who such an order could be made against. (It would potentially allow a Court to order that the LA provide the address if known, to the Court, and this happens quite often in private law cases)
an application for post adoption contact doesn’t fall into the definitions of a “Part I” application for the purposes of the Family Law Act 1986. Whilst one might think that this doesn’t matter much, the problem is that breach of a s33 order can be punishable by committal, and if that’s a possibility you have to be sure of the legal foundations for making such an order. (It’s a point that has been missed that the Family Law Act Part I definitions need to be amended)
Would that a case transpires to test this hypothesis – if only.
Then to witness the sheer artifice of, in effect, the disproportional state immunity afforded adoption, completely unravel.