Re B (A Child) (Post-Adoption Contact)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P,Lady Justice King,Lord Justice Coulson |
| Judgment Date | 30 January 2019 |
| Neutral Citation | [2019] EWCA Civ 29 |
| Docket Number | Case No: B4/2018/2341 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 2019 |
[2019] EWCA Civ 29
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CoventryFamily Court
HHJ Watson
Case Number CV/95/17
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lady Justice King
and
Lord Justice Coulson
Case No: B4/2018/2341
Vanessa Meachin QC and Sarah Jennings (instructed by Bailey Wright & Co) for the Appellant (natural parents)
The Natural Mother was represented by Her Litigation Friend, The Official Solicitor
Justine Ramsden (instructed by Kundert Solicitors) for the 1 st Respondent (adopters)
Nicholas Goodwin QC (instructed by Warwickshire CC) for the 2 nd Respondent
Matthew Brookes-Baker (instructed by Johnson & Gaunt) for the 3 rd Respondent (child)
Hearing dates: 27 th November 2018
Approved Judgment
This appeal, which concerns post-adoption contact, is apparently the first case to reach this court following the implementation of Adoption and Children Act 2002 [‘ACA 2002’], s 51A which, for the first time, makes provision for post-adoption contact orders.
The child at the focus of the proceedings, ‘B’, was born in April 2017. Most unfortunately, both of B's parents are disabled in respect to their intellectual functioning which, in the case of B's mother, is a very significant disability. Understandably, at the time of the baby's birth the local authority was concerned that, despite their earnest wish to do so, the parents may not be able to cope safely and adequately with her care. Consequently, by agreement, when the child was but a few days old, B moved with her parents to a residential assessment centre. At the same time, care proceedings were commenced in the local family court. Unfortunately, the report compiled by the assessment centre at the conclusion of the family's 12-week stay did not support the parents' continued care of their much-loved daughter. In August 2017 the court sanctioned the baby's removal from the residential centre and she was placed with Mr. and Mrs. X, who were foster parents who had also been approved as adopters.
In September 2017 the local authority applied for an order authorising them to place B for adoption under ACA 2002, s 21. On 20 October 2017, at the conclusion of the final hearing, Mr Recorder Norton QC made a final care order and a placement for adoption order. The local authority care plan before the court concluded that ongoing direct contact between the parents and child was not appropriate. At the conclusion of his judgment, having referred to the “no direct contact” element in the care plan, Recorder Norton said:
“I stress that this is not a case where I have been asked to make any order for direct contact, but I would be reluctant to do so for reasons expressed by the children's guardian in her evidence. There is a risk that if I were to make an order for direct contact that these carers, or subsequent carers, may not wish to accept that. In turn, that may lead to either immediate breakdown, or difficulty in finding B a further placement. I also accept that the direct contact can, in some circumstances, lead to a risk of future breakdown, but I do consider that this is a case where, especially where the carers have expressed a willingness to meet with the parents, and there is no suggestion of malice on behalf of these parents, that some further thought could be given to the issue of direct contact. I am, of course, required to consider contact when making a placement order. I am required under the Adoption and Children Act 2002, to look at the value to B of a continued relationship with her parents, if that can be achieved. I am not invited to make an order, and would not do so, but I do invite some further discussion between local authority, carers and, potentially, these parents, once they have had the chance to reflect upon my decision, to see whether, in the particular circumstances of this case, there is some possibility of ongoing, direct contact, but I go no further than that. It would be inappropriate for me to do so.”
In accordance with the care plan, the parents' contact with B reduced over the course of the following few weeks with the final visit taking place in early November 2017. In the same month, B's placement with Mr and Mrs X formally became an adoptive placement.
Again, in November 2017, a meeting took place, for the first time, between B's parents and the prospective adopters, Mr and Mrs X. By all accounts that meeting went well.
In December 2017 Mr and Mrs X issued their application to adopt B. During preliminary directions hearings in the adoption proceedings the parents, who had indicated that they neither consented to nor sought leave to oppose the making of an adoption order, expressed a wish for post-adoption contact. By ACA 2002, s 51A(4)(c), a parent who wishes to apply for post-adoption contact must first obtain the leave of the court to make that application. On 16 May 2018 a district judge granted these parents leave to apply for post-adoption contact under s 51A. The final hearing of that application was conducted before HHJ Watson in August 2018, with judgment being handed down on 6 September 2018. Having conducted a thorough analysis of the issues, HHJ Watson refused the application for post-adoption contact, recorded in a recital the position of the prospective adopters as to the issue of post adoptive contact and stayed the application for and adoption order.
B's parents' application for permission to appeal against the refusal of a s 51A contact order was granted by my Lady, Lady Justice King, on 9 October 2018 principally on the ground that there was some other compelling reason for the grant of permission, namely that the implementation of s 51A, together with developing recent research on the issue of post-adoption contact, justified consideration by this court.
We are grateful to counsel for each party who have addressed their written and oral submissions with the dual focus of, firstly, the judge's judgment and her decision on the particular facts of this case, and, secondly, the need for, and content of, any general guidance that might now be given by this court in relation to post-adoption contact.
The Statutory Context
On an adoption agency being authorised to place a child for adoption (or placing a child for adoption who is less than six weeks old), ACA 2002, s 26(1) provides that any contact provision in a child arrangements order under Children Act 1989 [‘CA 1989’], s 8 will cease to have effect; any order for contact to a child in care under CA 1989, s 34 will also cease to have effect in like manner.
By ACA 2002, s 26(2)(a), while an adoption agency (in the present case the local authority) is authorised to place a child for adoption, or the child is so placed, no application may be made for a child arrangements order under CA 1989, s 8 containing provision for contact and no application may be made for a contact order under CA 1989, s 34. In such circumstances, by s 26(2)(b), the court does, however, have power to make provision for contact between the subject child and any person named in the order. ACA 2002, s 26(3) gives detail of those who may apply for a s 26 contact order as of right and all others, who must first obtain the court's leave before applying. In addition, by s 26(4), when making a placement order the court may on its own initiative make a contact order under s 26. ACA 2002, s 27 makes further consequential provision as to contact under a placement order.
By ACA 2002, s 27(4):
“(4) Before making a placement order the court must:
(a) Consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and
(b) Invite the parties to the proceedings to comment on those arrangements.”
The regime established by ACA 2002, ss 26 and 27 is important. It requires the court in every case before making a placement order to consider the proposed arrangements for contact and the views of the parties as to those arrangements. The court is given wide and flexible powers to make arrangements for contact between the child and any other person in the period prior to any placement for adoption and thereafter during the operative period of the placement for adoption order. An order for contact under s 26 can be made in response to specific application or on the court's own initiative.
A placement order continues in force until it is either revoked by the court (under ACA 2002, s 24), or an adoption order is made with respect to the child or the child marries, forms a civil partnership or attains the age of 18 years [ACA 2002, s 21(4)]. A contact order made under s 26 may, therefore, cover a relatively short period between the making of a placement order and the subsequent granting of an adoption order, or, potentially for far longer periods if an early placement and adoption are not achieved. The power of the court to make an order under s 26 is not confined to the occasion on which the placement for adoption order is, itself, made, but extends to the entire period “while” an adoption agency is authorised to place, or a child is placed, for adoption [ACA 2002, s 26(2)].
Where an application for a full adoption order is, subsequently, made, different provisions relating to contact apply. Prior to 22 April 2014, when ACA 2002, s 51A came into force, any provision for post-adoption contact was made by a CA 1989, s 8 child arrangements order, irrespective of whether the adoption followed formal placement for adoption by an adoption agency, or not. ACA 2002, s51A now provides a statutory scheme for post-adoption contact following a placement for adoption order. Previous authorities, to which reference will in due course be made, must therefore be read in the light of the new statutory scheme,...
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