Post-placement and Post-adoption Contact
| Author | Nasreen Pearce/Richard Budworth |
| Pages | 89-102 |
Chapter 8
Post-placement and Post-adoption Contact
INTRODUCTION
8.1 Before a placement or adoption order is made, contact between the child and his parents or extended family is governed by the provisions in the ChA 1989 either under s 8 in a child arrangement order or under s 34 where the child is the subject of a care order. Once a placement order is made, any contact provisions in a child arrangement order under ChA 1989, s 8 will cease to have effect. Similarly, an order under s 34 providing for parental contact when a care order is made will also come to an end (ACA 2002, s 26(1)). No application may be made for a child arrangement order under s 8 or an order for contact under s 34. However, this does not mean that contact between the child and his parents also comes to an end. Post-placement or on the making of an adoption order or post-adoption of the child, any issue relating to parental contact is governed by the provisions set out in ACA 2002, ss 26 and 27 when an adoption agency is authorised to place for adoption or a child is placed for adoption, and under ss 46(6), 51A and 51B where an adoption agency has placed or authorised to place a child for adoption and the court is making or has made an adoption order in respect of the child.
CONTACT POST-PLACEMENT ORDER
8.2 ACA 2002, s 27(4) imposes a mandatory duty on the court before making a placement order to consider the arrangements which the adoption agency has made or proposes to make for allowing any person contact with the child and invite the parties to commence proceedings to comment on those arrangements. The adoption agency is therefore under a duty before applying for a placement order to deal with the issue of contact. Its decision must be taken applying the welfare checklist set out in ACA 2002, s 1. The agency must also have regard to
90 Adoption Law: A Practical Guide
the wishes and feelings of the parent, and if appropriate, a father without parental responsibility and the advice of the adoption panel (AAR 2005, reg 46).
8.3 Any person involved in the care of the child or having an interest in maintaining contact with the child when dealing with an application for a placement order should consider carefully the proposals for contact put forward by the adoption agency. If those proposals are not acceptable, the person should raise or challenge these proposals by making an application under ACA 2002, s 26 within the placement proceedings for the court to make a contact order requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other. ACA 2002, s 26(3) provides for such an application to be made:
(a) by the child or the agency;
(b) by any parent, guardian or relative;
(c) by any person in whose favour there was provision for contact under ChA 1989, s 8 or s 34 but which will cease when a placement order is made;
(d) if a child arrangement order was in force immediately before the adoption agency was authorised to place the child for adoption or (as the case may be) placed the child for adoption at a time when the child was less than six weeks old, by any person named in the order as a person with whom the child was to live;
(e) if a person had care of the child immediately before that time by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, by that person; and
(f) by any other person who has obtained permission from the court to make the application.
8.4 The court hearing the placement application is also empowered, notwithstanding that an application under ACA 2002, s 26 has not been made by any person, on its own initiative to make an order for contact (ACA 2002, s 26(4)).
8.5 When considering whether to make an order for contact pursuant to ACA 2002, s 26, the court must apply the paramountcy test, i.e. the paramount consideration must be the welfare of the child and in so doing apply the welfare checklist set out in ACA 2002, s 1. The need for care, sensitivity and intellectual rigour on the part of judges hearing applications for placement orders is reinforced by the fact that applications for placement orders will, regularly, be heard and will be determined immediately after the court has made a care order in relation to the same child. Equally, where an application for a placement order is sought against the background of a care order with the care plan for adoption and the application is heard by a judge who has not made the previous care order, the judge
considering the application for a placement order will in particular need to consider with care the way in which the judge who approved that care plan expressed himself in relation to the issue of adoption, the extent to which that judge addressed himself in terms not merely to ChA 1989, s 1, but also to ACA 2002, s 1, and the extent to which, since the care plan was approved, there has been any change in the circumstances or in the assumptions which underlay the care plan and, in particular, which underlay the plan for adoption. Because of the fundamental importance of preserving the children’s relationship with each other, when there are other siblings, and the birth parents, the question of contact is a matter for the court and not for the local authority or for the authority in agreement with the prospective adopter(s). The existence of placement orders should not be an inhibition on the ability of a parent to apply to the court to determine the questions of contact and in particular between siblings. See Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 at [132]–[133] and [147]– [150], where the Court of Appeal in relation to the circumstances in the case also went on to state that ‘the placement of the children with adopters or foster carers, who are unwilling, in particular, to facilitate contact between D and S (the siblings) would provide a basis for leave to be granted’ to revoke the placement order.
VARIATION OR REVOCATION OF CONTACT ORDER UNDER ACA 2002, S 26
8.6 A contact order made under ACA 2002, s 26 may be varied or revoked by the court on the application by the child, the agency or a person named in the order. The adoption agency and any person in whose favour a contact order has been made may agree to change the terms of a s 26 order provided that the child, if of sufficient age and understanding, agrees, the prospective adopter(s) agree and the relevant persons have been informed of the change (AAR 2005, reg 47(2)).
ADOPTION AGENCY’S POWER TO DISALLOW CONTACT
8.7 Pursuant to ACA 2002, s 27(2), the adoption agency is empowered to refuse to allow contact notwithstanding the existence of a s 26 contact order, but only if it is satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare and the refusal is decided as a matter of urgency and does not last for more than seven days. In the absence of a s 26 contact...
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