If you’ve been following the news recently, you may have heard talk of ‘the weave’, where someone appears to go off at a tangent (such as perhaps talking about Hannibal Lecter as though he were a real person, or about how smart his uncle was at MIT) with the idea that then you’d skillfully bring it back to a real message of consequence (such as, no, i’ve got nothing.)
Anyway, I’m going to write about the Court of Appeal decision in
R & C (Adoption or Fostering) [2024] EWCA Civ 1302
https://www.bailii.org/ew/cases/EWCA/Civ/2024/1302.html
which talks about the very long history of the legal principle that the Courts don’t make contact orders about parental contact against adopters (going right back to 1989) and the current landscape – not yet the legal one, but thinking on the ground, about the benefits of open adoption and post adoption contact. So it’s an interesting case.
And I’m going to start the Weave now.
People who know me well will know that my favourite book ever, and a book that legitimately saved my life in dark times is “The Worst Journey in the World” by Apsley Cherry-Garrard. Cherry-Garrard was a fairly lowly scientific officer on Scott’s ill-fated voyage to the Antarctic. Tragically, Cherry-Garrard was one of the officers who went out to find Scott and his teammates bodies when it was clear that they were not going to return alive. It’s a incredible book about bravery, fear, the awesome wonder and fear of the world’s emptiest place, friendships and sadness. One of the things that I learned from that book is that when you’re making the massively long trip to the South Pole, you don’t start from point A and go to the Pole. No, for the year beforehand, you make a succession of trips from Point A to Point B, to Point C, back to A – to point C, leaving supplies of food and oil at each point at what are called Depots. So you don’t have to haul the whole of the food and oil that you need for the whole journey there and back in one go – you just have to keep moving forward at a small distance and putting down a marker and leaving enough for the person who comes next to be able to make the rest of the journey.
I think that Re R and C, when we look back in a couple of years about the legal landscape, will look an awful lot like a Depot. We can’t make the whole journey from the many many legal authorities that currently exist saying no contact orders against adopters to making the orders in one stop – the process, if that’s what is going to happen, is going to be a series of smaller judgments getting us farther away from the starting point and giving the next Court enough food and oil to go on to the next depot and potentially all the way to the South Pole.
Let’s have a look at the case :-
This appeal is brought by a local authority against a judge’s refusal to make placement orders in respect of two young children. The principal reason for the judge’s decision was that he concluded that adoption was inconsistent with the children’s need for continuing contact with members of their birth family, in particular their two elder half-siblings. The local authority, supported by the children’s guardian, say that the judge’s decision was wrong. Its care plan contemplates that the children will only be placed with prospective adopters who are prepared to agree to continuing direct contact between the siblings.
This appeal falls to be decided at a time when there is renewed discussion about open adoption and provides an opportunity to reiterate the clear principle that, at the stage of making an order under s.21 of the Adoption and Children Act 2002 authorising a local authority to place a child for adoption, it is the court, rather than the local authority or any other person, which has the responsibility for determining whether there should be ongoing contact between the child and the birth family.
As indicated earlier, the Court of Appeal set out the long legal history about making orders about contact that would bind on adopters.
As noted above, adoption after 1926 conventionally involved the complete severance of the relationship between the child and their birth family. There were, however, exceptional cases in which contact continued. In Re C [1989] AC 1, the House of Lords allowed an appeal by prospective adopters against a decision of this Court dismissing an appeal against a judge’s refusal of the adoption application. The subject child, who was 13 years old, had a close relationship with her elder brother which the appellants accepted should continue unimpeded after adoption. Her mother, however, withheld her consent to the adoption on the ground that it would weaken the siblings’ relationship. In allowing the appeal and making the adoption order, the House of Lords (with the appellants’ support) attached a condition to the order (under the legislation then in force, the Children Act 1975) providing that there should be continuing contact after the adoption. In his speech with which the rest of the House agreed, Lord Ackner observed (page 17F to G):
“It seems to me essential that, in order to safeguard and promote the welfare of the child throughout his childhood, the court should retain the maximum flexibility given to it by the Act and that unnecessary fetters should not be placed upon the exercise of the discretion entrusted to it by Parliament. The cases to which I have referred illustrate circumstances in which it was clearly in the best interests of the child to allow access to a member of the child’s natural family. 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. Where 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 through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation.”
In the years following this decision, the principle that a court should not, save in exceptional circumstances, make an order for post-adoption contact with members of the birth family against the wishes of the adopters was firmly applied, even as attitudes towards the benefits of such contact began to change. In Re R (Adoption: Contact) [2005] EWCA Civ 1128, this Court considered an appeal involving post-adoption contact a few months before the coming into force of the 2002 Act. Having noted what he described as the “clear change of thinking” since the previous legislation was passed in 1976, Wall LJ observed (at paragraph 49):
“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.”
Back to the central issue:-
The analysis continues at paragraphs 26 to 36, concluding with the most recent authority (which post-dated the original decision in this case:-
In Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, this Court allowed an appeal against a judge’s refusal to make a placement order and made the placement order itself. In his judgment with which the other members of the Court agreed, Peter Jackson LJ concluded that the child’s relationships with her birth family were “not of such importance that they can outweigh the predominant need for her to have a family of her own”. He described this as a factor which spoke “in favour of contact taking place, if it can be arranged, after C is placed for adoption and later adopted.” He recorded that the local authority could be “expected to honour its care plan for current contact, and for a 3-month search for adopters who will accommodate meetings with family members.” But he concluded that “overall, it would not be better for us to make a contact order, in fact it might be detrimental to the greater priority of finding an adoptive family for C.
The Court of Appeal then spoke about the broader cultural landscape in the national debate and discussions about adoption:-
Although developments in adoption policy that are not yet reflected in legislative change do not, in my view, call for detailed analysis on this appeal, it is right to record that this appeal falls for determination at a time when there is increased public discussion about the future of adoption in general and of open adoption in particular.
These issues were addressed by the President of the Family Division in his two recent lectures – “Adapting Adoption to the Modern World” (the Mayflower lecture in Plymouth, 9 November 2023, https://www.judiciary.uk/speech-by-sir-andrew-mcfarlane-adapting-adoption-to-the-modern-world/) and “Adapting Adoption to the Modern World – Part Two” (the POTATO conference lecture, 17 May 2024, reported at July [2024] Fam Law 797). As he stressed in the second lecture, neither lecture was a court judgment, Practice Direction, or Presidential Guidance, but rather an expression of his “preliminary thoughts” on the question: “How will this cultural shift towards greater openness impact upon the work of the Family Court and how may the court support the looked-for change in the default setting so that maintaining relationships with a child’s birth family is the starting point, rather than the exception?”
In the course of his second lecture, the President took the opportunity to underline some features of the existing law and also make suggestions about how the law might develop in future. He observed:
“Orders for contact made under ACA 2002, s 26 when making a placement for adoption order set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important ‘known known’ about the child to be taken on board by any potential adopters with whom placement may be considered.”
He continued:
“…the likely template for contact arrangements post adoption should be set at the placement order stage. This is not a change in the current approach. A court making a s.26 contact order, in keeping with the duty under s.1 and its lifelong focus, should have regard not only to the short-term contact arrangements required in the pre-adoption stage, but also in setting the course for the maintenance of family relations over the longer term if that is in the child’s best interests. Also, there is nothing wrong, and I would suggest it should be good practice, for a s.26 contact order to contain a recital as to the court’s view on contact arrangements post-adoption.”
In these observations, the President was doing no more than reiterating the approach to s.26 mandated by case law. He went on to express some preliminary thoughts about how courts might in future exercise their powers to make contact orders at the adoption application stage. As he acknowledged, in those remarks he was considering steps which go beyond the current case law. It is likely that this Court will consider these matters again at some point, but they do not arise on this appeal. We are concerned only with the interpretation of s.26.
There’s an interesting discussion about whether there is a difference, legally, between imposing an order on adopters who do not agree with it at the stage of adoption and on the other hand, the Court setting the tone of what contact they would expect an adopter who has not yet been matched with the child to sign up to. I.e that the Court at first instance had been treating as a binary decision – if sibling contact no adoption, if adoption no sibling contact, which is more important, when there could have been a route to achieving both.
It was acknowledged by counsel for the local authority that, under the current law, save for extremely unusual circumstances, no order will be made to compel adopters to accept contact arrangements with which they do not agree. It was submitted, however, that there is a critical difference between, on one hand, imposing on adopters a contact regime that they had never bargained for in respect of a child previously placed with them for adoption and, on the other, crafting a contact regime at the placement order stage so that the eventual adopter accepts the adoptive placement with their eyes wide open to the court-directed imperative for long-term sibling contact. Within the latter regime, the court will “set the tone” or define the template of future contact at a point well before the prospective adopter commits to the child’s placement. The use of s.26 in such circumstances would not be for the purpose of overriding an adopter’s fully formed views about sibling contact, but to shape those views before they are formed. In this case, the judge misconstrued the powers and flexibility afforded him by s.26. He wrongly considered that he lacked the ability to shape the children’s long-term contact with their siblings, and therefore allowed that factor to dominate the welfare evaluation. By concluding that he could not give the children a “guarantee” of sibling contact, he underestimated the efficacy of the statutory steps he could take to achieve that outcome. The appellants submitted that, if this approach were followed generally, few siblings from a large sibling group would meet the test for adoption.
The Court of Appeal say this:-
A key element in the judge’s reasoning was his assertion that “permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family”. As demonstrated by the summary of the case law set out above, that may have been true of all adoptions at one stage, and it remains true of some adoptions now. But it is emphatically not true of many adoptions and is at odds with the concept of open adoption which is now embraced as a model in what the President has called the modern world. The judge acknowledged that the severance of ties with the natural family “can sometimes be ameliorated by continued contact between the birth family and the adopted child” and that, in this case, the local authority has “committed itself to a search only for adopters willing to promote direct sibling contact”. He discounted these factors, however, on the basis that ongoing contact “is at the discretion of the adopters” and that “sibling contact cannot be guaranteed” because “even adopters who are open to it initially may not continue to promote it after the making of an adoption order”.
In these observations, the judge overlooked the fact that it was his duty to “set the template for contact going forward”. This case seems to fall four square within the words used by Wall LJ in Re P at paragraph 151. As in that case, there is a “universal recognition” that the relationship between the siblings needs to be preserved. It is “on this basis that the local authority / adoption agency is seeking the placement of the children …. [T]his means that the question of contact between the two children is not a matter for agreement between the local authority / adoption agency and the adopters: it is a matter which, ultimately, is for the court”. In those circumstances, “it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children”.
In reaching his conclusion, the judge quoted passages from my judgment in Re T and R. It does not follow, however, that in every case where the court concludes that it is strongly in the interests of the children to continue to have sibling contact the option of adoption should be ruled out. Each case turns on its own facts. In Re T and R¸ the crucial importance of contact to the psychological wellbeing of the subject children and their older siblings, the importance of maintaining the children’s sense of their cultural and community heritage, which could only be achieved through contact, coupled with the community’s antipathy to adoption which made contact unfeasible, led to a conclusion that adoption was not in the interests of the children’s welfare. In other cases, the evidence will clearly demonstrate not only that ongoing sibling contact is in the children’s interests but also that it is likely to be achievable in an adoptive placement. In my view, this is just such a case.
Under the current law, as the President said in Re B, “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”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage. In this case, the local authority was committed to search only for adopters willing to accommodate sibling contact and invited the court to make an order for contact under s.26, both to meet the children’s short-term needs and to set the template. There was of course a possibility that the search for such adopters might be unsuccessful or that adopters might subsequently refuse to agree to contact. But in the circumstances of this case, that possibility was not a sufficient reason to refuse to make the placement order.
The Court of Appeal considered that the Judge had been wrong in their analysis of the options before them
Under the current law, as the President said in Re B, “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”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage. In this case, the local authority was committed to search only for adopters willing to accommodate sibling contact and invited the court to make an order for contact under s.26, both to meet the children’s short-term needs and to set the template. There was of course a possibility that the search for such adopters might be unsuccessful or that adopters might subsequently refuse to agree to contact. But in the circumstances of this case, that possibility was not a sufficient reason to refuse to make the placement order.
The judge was wrong to dismiss the argument that, because of their ages, R and C deserve a right to permanency on the grounds that it “comes perilously close to social engineering”. Although it is not entirely clear, it seems he used the phrase “social engineering” to mean taking a decision about the children’s future by reference to social policy rather than their specific welfare interests. But the value to a child’s welfare of the permanence which only adoption can provide has been recognised in many cases, including in passages cited by the judge from the judgments of Pauffley J in Re LRP (A Child) (Care Proceedings – Placement Order) [2013] EWHC 3974 (Fam) at paragraph 39 and Black LJ in Re V (Children) [2013] EWCA Civ 913 at paragraphs 95 – 96. Every court considering whether to endorse a plan for adoption must take into account the fact that, in Black LJ’s words, “adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.” The professional evidence before the judge was that it was in these children’s welfare interests to be placed for adoption. There was no justification for describing this as “perilously close to social engineering”.
I am also troubled by the judge’s statement that “the role of the court is to protect children from harm. It is not to improve their life chances or to move them to placements where they will be better off.” This is a distorted interpretation of the statutory welfare checklist in s.1(4) of the 2002 Act. The factors in that list include “any harm … which the child has suffered or is likely to suffer” but it also includes a range of other factors, including the ability of the child’s parents and others to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs. Where the court concludes that a child has suffered or is likely to suffer significant harm as a result of the parents’ care, the court is obliged to consider all the relevant factors in the statutory checklist in order to determine which outcome best provides for the child’s welfare throughout their life.
I am equally concerned by the judge’s further comment that “the mother cannot be completely ruled out” and that, although “at present the risks to the children of a return to her care are simply too great”, she also “has much she can offer” once she has resolved her emotional and psychological problems. It is not entirely clear what he was intending to convey by these comments. It may be that he was intending merely to express his view that the continuation of a relationship between R and C and their mother was of value to the children. But the terms in which he expressed himself imply that he was holding out the prospect of the children returning to their mother at some point in the future. If so, this was no more than a speculative hope. There was no evidence on which he could have concluded that she would succeed in overcoming her problems so that, in the words of paragraph (f)(ii) of the checklist, she would acquire the ability to “provide the child[ren] with a secure environment in which [they] can develop and otherwise to meet [their] needs”.
Overall, the judge’s reasoning in paragraphs 44 and 45 of the judgment failed to provide a sufficiently robust and rigorous analysis of the advantages and the disadvantages of the realistic options for the children, as required by repeated decisions of this Court,
The Appeal was allowed and the Court made placement orders with recitals in relation to contact:
If my Ladies agree, I would therefore propose that this Court allows the local authority’s appeal, sets aside the judge’s order, and makes placement orders in respect of both children. In addition, pursuant to s.26(2)(b) of the 2002 Act, I would add an order requiring the person(s) with whom R and C live, and any other person(s) with whom they are to live while they remain the subjects of placement orders, to allow them to attend visiting contact with their siblings N and Y six times per year, in accordance with arrangements made by the local authority. I would include in the order a recital, in terms proposed by the local authority, recording that
“the local authority confirming that, under its care plans and during its search for prospective adopters for R and C
(1) that the local authority will arrange direct inter-sibling contact between the subject children and their siblings N and Y, six times per year;
(2) that the local authority will search exclusively for and will match the subject children only with prospective adopters committed to facilitating inter-sibling contact as set out above and who will propose to adopt both the subject children;
(3) that, in the event that prospective adopters committed to facilitating inter-sibling contact as set out above have not been found within six months, the local authority will apply to the court.”
Finally, in line with the suggestion made by the President in his second lecture “Adapting Adoption to the Modern World – Part Two” (quoted at paragraph 39 above), I would propose adding a recital that it is this Court’s view that after adoption R and C should continue to have direct contact with N and Y six times a year.
I would expect to see more such recitals in cases where the Court consider it appropriate for the children’s interests to set down that marker of what contact post placement is expected by the Court. We will have to watch this space to see what happens where such recitals are made and the placement identified for the children doesn’t deliver.
We do live in a society currently where the debate on both the benefits of contact and the realities of trying to restrict all contact are going to continue to develop and the law must of course move with the times and be willing to revisit long-established principles where the landscape outside of the Court room has changed.
As I read from the splendidly dressed Oliver Conway on Twitter the other day about this case “I think we need to accept that the internet means closed adoption (where there is no contact with birth family) is pretty much unworkable”
Everyone now has a printing press and a private investigator in their pocket – every interaction a person, including a child, has leaves a digital footprint that can be traced and the ability to trace it just gets easier and easier with each passing year. The genie, if not fully out of the bottle yet, is at the very least pushing at the base of the cork with both hands and loosening it considerably.
suesspiciousminds 