R and C (Adoption or Fostering)

Hearing date: 6 September 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 30 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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.

Legal background

(1) The changing nature of adoption

In the 98 years since legal adoption was first introduced in England and Wales in 1926, the circumstances in which adoption orders are made have significantly changed. Until the 1960s, most children made subject to adoption orders were infants, many of them relinquished by mothers burdened by the social stigma of illegitimacy. The annual number of adoptions rose to a peak of just under 25,000 in 1968.

The paradigm form of adoption in the decades following 1926 involved a complete severance of links between the adopted child and their parents. It was considered to be in the interests of the child to have no contact at all with their birth family but rather to be treated in every respect as the child of their adopters.

Then, following the liberalisation in social attitudes towards illegitimacy, and the wider availability of contraception and legal abortion, the number of babies relinquished for adoption declined. For most of the last 30 years, the annual number of adoptions has been between 2,000 and 4,000. Furthermore, a significant proportion of children placed for adoption are now beyond infancy – aged between 1 and 5, sometimes older. In many cases they are placed for adoption having been received into care after suffering, or being at risk of suffering, significant harm when living with their parents.

Unlike newborn infants, older children placed for adoption have experiences, memories and relationships arising out of living within their birth families. They need the security and permanency which adoption provides. But in many cases they also need to sustain their relationships with some members of their birth families. All adopted children need to develop an understanding of their background and identity. For infants, that can often be achieved through life story work and letter box contact. But for older children, sustaining their sense of identity will in many cases be best achieved by continuing direct contact with members of their birth family.

It is to accommodate these twin needs that the concept of open adoption has come to the fore in recent years. Not everyone with personal experience of adoption is comfortable with this development. But the preponderance of opinion amongst those working and researching in the field is that, in many cases, it is in the interests of adopted children to continue to have some direct contact with members of their birth family.

(2) Statutory provisions

The succession of statutes passed between 1926 and 1976 regulating adoption were all drafted in terms that were consistent with the paradigm of a complete severance between the adopted child and their birth family. It is notable, however, that even then the courts retained a power to impose a condition that there should be ongoing contact with the birth family. As one judge stated over fifty years ago, the law provided that “the general rule which forbids contact between an adopted child and his natural parent may be disregarded in an exceptional case where a court is satisfied that by so doing the welfare of the child may be best promoted” (per Rees J in Re JP (Adoption Order: Conditions)[1973] 2 WLR 782 at page 790D to E).

The statute now governing adoption in England and Wales is the Adoption and Children Act 2002. The Act governs the routes by which a child may be adopted. The route with which this case is concerned is the “placement order” route. Where a local authority starts care proceedings in respect of a child under Part IV of the Children Act 1989 and concludes that the child's welfare requires that he should be adopted, it must apply for an order authorising it to place the child for adoption – a placement order. Having obtained the order, it may place the child with prospective adopters who may then apply for an adoption order. There are extensive provisions in the Act, and in secondary legislation, governing these processes. The following statutory provisions are relevant to this appeal.

The fundamental principles are set out in s.1 of the 2002 Act. Under s.1(2), “the paramount consideration of the court or adoption agency must be the child's welfare, throughout his life”. The “paramountcy principle” is well-established throughout children's law, and of course is found in s.1(1) of the Children Act 1989. But importantly, the principle in the 2002 Act is qualified by the words “throughout his life” which are not included in s.1(1) of the 1989 Act.

Under s.1(3), “the court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.”

S.1(4) lists factors to which the court and adoption agency must have regard (amongst others):

“(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b) the child's particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of doing so,

(ii) the ability and willingness, of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.”

S.1(3) of the Children Act 1989 also contains a welfare checklist of factors to be taken into consideration by a court making orders under the private law (Part II) and public law (Part IV) provisions of that Act. There is considerable overlap between the checklists in the two statutes. But, reflecting the extended focus on welfare throughout the child's life, the checklist in s.1(4) of the 2002 Act set out above contains factors that are not found in the 1989 Act, in particular paragraphs (c) and (f).

The provisions in s.1 of the 2002 Act apply whenever a court or adoption agency is “coming to a decision relating to the adoption of a child”: s.1(1). This phrase is defined in s.1(7) as including coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order for contact under s.26 or s.51A (or the revocation or variation of such an order).

The statutory provisions governing placement orders are set out in s.21. S.21(1) provides:

“A placement order is an order made by the court authorising a local authority to place the child for adoption with any prospective adopters who may be chosen by the authority.”

Under s.21(2),

“the court may not make a placement order in respect of a child unless

(a) the child is subject to a care order;

(b) the court is satisfied that the conditions in s.31(2) of the Children Act are met, or

(c) the child has no parent or guardian.”

S.21(3) provides:

“The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied

(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local...