The Court of Appeal has recently allowed an appeal brought by a Local Authority regarding the refusal of a Judge to make placement orders in respect of two young children. HHJ Wicks refused the order on the grounds that adoption would interfere with the children’s need for contact with their birth family, and specifically with their two elder siblings,
In R and C (Adoption or Fostering), Re [2024] EWCA Civ 1302 Baker LJ concluded that HHJ Wick’s reasoning did not provide a “sufficiently robust and rigorous analysis” of the advantages and disadvantages of the options for the children and that he did not acknowledge the fact that it was his duty to ‘set the template for contact going forward.’
Facts
The original care proceedings began in September 2021, when the three children were removed from their mother by the police. Interim care orders (ICOs) were made in relation to the three children. When the fourth child was born in 2022, an ICO was made for him. At a final hearing in April 2023 supervision orders were made in respect of all four children by HHJ Wicks and the children returned to their mother’s care over a period of 12 weeks through a transition plan.
Unfortunately, the mother’s behaviour did not improve and the children were at significant risk of suffering harm due to the mother ‘failing to provide sufficient parental supervision and repeatedly exposing them to dangerous adults, and drug misuse.’ The Local Authority issued further care proceedings in September 2023 and further ICOs were made. All four children were placed in foster care, with the eldest two children going back to their previous foster carers whilst the younger two went to a new placement together.
The Local Authority (supported by the guardian) proposed at the final hearing in May 2024 that the two elder children remain in long-term foster care in a new placement, whilst the younger two children be placed for adoption together. The final care plan had provided for contact as follows:
- Direct contact between the four siblings a minimum of six times per year;
- Direct contact between the elder two children and their mother eight times per year; and
- For all contact between the youngest two children and their mother to cease after they were placed for adoption.
The Local Authority within their care plan had also committed to looking for potential adopters who would agree to continuing direct contact between the siblings in line with the above.
HHJ Wicks rejected the local authority’s application for placement and instead ordered that the youngest two children also be placed in long-term foster care. The local authority thereafter filed a notice of appeal against the refusal, with two grounds of appeal put forward:
- That HHJ Wicks was wrong to conclude that the sibling relationship couldn’t be preserved if he approved an adoptive care plan; and
- That the Judge was wrong to refuse placement orders on the basis that “the mother could not be completely ruled out.”
The Appeal Decision
As to the first ground, Baker LJ noted “it was argued that the judge constructed a dichotomy comprised of, on one hand, the advantage of permanency afforded by adoption and, on the other, the lifelong benefits of preserving a sibling relationship. The judge approached his task by assuming that there was no middle ground.” Counsel for the local authority accepted that it was very rare for adopters to be compelled to accept contact arrangements they did not agree to, but Baker LJ confirmed the court’s responsibility to set the template for contact at the placement order stage. If this is were done it would then mean that a prospective adopter would be alive to the expected arrangements before making the decision whether to adopt the child. The Court determined that the first ground of appeal was allowed.
As to the second ground, it was submitted by the LA that HHJ Wicks’ remark that the mother “could not be completely ruled out” contradicted his findings that the mother was “simply unable to put into effect what she has learned from all the support work” and that there were “no other options available in terms of safeguards that could be put in place to minimize the risks of future harm to the children.” This ground of appeal was also allowed.
The Court of Appeal ultimately set aside the order and made placement orders in respect of the two children. An Order was made pursuant to s26(2)(b) of the 2002 Act and a recital included in the order recording the court’s view that after adoption the siblings should continue to have direct contact six times a year
Commentary
It is clear that in recent years there has been a shift towards greater amounts of contact between adopted children and their birth families, and especially between siblings separated by adoption. The President of the Family Division Andrew McFarlane delivered two speeches in November 2023 entitled “Adapting Adoption to the Modern World” and “Adapting Adoption to the Modern World – Part Two” whereby he urged the Courts to take a more modern approach to contact between an adopted child and their birth family. Previously the Courts have taken the approach that post-adoption contact is not generally in the child’s best interests based on the facts of the case (often for the same issues as were listed in the threshold), and so a large amount of adopted children cease any contact beyond letterbox contact upon placement being secured.
In his speeches, McFarlane P suggested that the adopted child may benefit from post-adoption contact with their biological family as, by knowing where they come from, the child is more likely to have a greater sense of identity and self. Further, by being able to meet with their biological parents the adopter/adoptee relationship may be strengthened. It has been argued that there is likely to be tension between an adopted child and their adopter, especially as the child grows into a teen as they may feel they were ‘denied the chance’ to know their family. It also gives the biological parents a chance to show their child that they have changed and improved their behaviour which led to the child’s initial removal. Post-adoption contact would only be ordered if the parent does not pose a significant risk of harm to the child, so this could potentially incentivize them to work hard to secure contact and ensure it continues. Conversely, a parent who is denied contact with their adoptive child may think ‘what’s the point’ and fall back into the same pattern of behaviour which would create a circle of behaviour leading to the removal of any future children.
In the modern day where social media is readily available it would be easy for a child with any tech literacy to be able to track down their biological family members. This poses a great risk to the child’s safety were they to secretly message those family members and arrange to meet them without the adoptive parent’s knowledge. Therefore, to better safeguard a child who will naturally have an interest in meeting their family (or being reunited with their family in the case of children who were adopted after infancy), post-adoption contact is encouraged.
In conclusion it is clear that the Court of Appeal Decision reflects a willingness of the law to re-visit long-established principles in view of societal changes in attitude. It might be thought that the original decision reflects the old-fashioned attitude that the values of adoption do not align with the child’s need for continuation of contact with the birth family but the appeal decision sets out that, going forward, there should be clearer recognition of the fact that it is the Court that has the power to determine whether there should be post-adoption contact – not the local authority or any other person.
To read the full judgment, click here.
