Abstract
Contact under section 51A
Re B (A Child: Post-adoption contact)
Court of Appeal (Civil Division)
McFarlane P, King and Coulson LLJ
30 January 2019 [2019] EWCA Civ 29
B was removed at the age of three months after a residential assessment concluded that her parents’ learning disabilities meant they would be unable to care for her. The baby was moved to an early permanence placement. On the making of a placement order the judge declined to make an order for contact, but did invite the local authority to consider whether direct contact could be arranged. The local authority decided against direct contact and a final visit was held just before the placement became an adoptive one. When the adopters put their application in to court the parents obtained leave to apply for post-adoption contact. It was argued that letterbox contact would be difficult for these parents to manage and the adopters suggested that they could meet the parents and build up a relationship before deciding whether to arrange direct contact. The judge refused to make an order for contact and the birth parents appealed.
Held
The court considered that the case law which applied before the introduction of section 51A into the Adoption and Children Act 2002 was based on sound principles that had not changed, and ‘the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely unusual’. There was nothing to suggest that section 51A, making post-adoption contact a specific order rather than birth parents making applications under section 8 of the Children Act 1989, was intended to increase the number of cases in which post-adoption contact was ordered. The court noted the development of research showing the benefits of contact between an adopted child and the birth family, but suggested that this should affect social work practice in making recommendations for the child, not change the law. It remains the case that adopters who are trusted with sole parental responsibility for the child and to make all decisions required to meet her physical, emotional and psychological needs, should not have their views on contact overridden save in exceptional circumstances.
Informing extended family of child’s existence
Re H (Care and Adoption: Assessment of wider family)
High Court (Family Division)
Cobb J
14 February 2019 [2019] EWFC 10
H was the third child of his parents together and his older siblings as well as some half-siblings had already been placed for adoption. He was removed from his parents at birth due to concerns about longstanding substance misuse and domestic violence and the care plan was for permanent placement outside his parents’ care. The maternal family did not want to put themselves forward as carers for H, and the father refused to give the local authority any information about his parents, saying that he did not want them assessed and he would rather that H was adopted than his parents be disturbed by finding out about a grandson that they could do nothing about. The judge quoted from several sections of the Children Act 1989, the Adoption and Children Act 2002, the Adoption Agencies Regulations 2005 and statutory and practice guidance, which all emphasised the need for local authorities to involve and assess the extended family of the child, and, if necessary, to place the child with relatives in preference to other placements outside the family. He referred to Re B and Re B-S requiring that adoption only be an option if ‘nothing else will do’, i.e. if realistic alternative family placements have been considered and rejected. He identified that all of these sources, although clearly setting out the ethos of wider family involvement, did not give guidance on the appropriate course to take where the wider family were not aware of the child’s existence and the parents did not want them informed. He contrasted this with the case law allowing a birth mother to relinquish a baby for adoption without informing the birth father or extended family.
Held
The court and/or the local authority has a broad discretion and must consider the facts of each individual case, taking account of the family circumstances but attaching primacy to the welfare of the child. There are cases where disclosure of the child’s existence will be unsafe for the child or the parents, or cultural or religious considerations may be relevant, but generally the ability and willingness of the wider family to care for the child should be carefully scrutinised. There would need to be cogent and compelling reasons before a court could finalise public law proceedings without the wider family knowing of a child’s existence. In this case no such argument had been made and the father would be given an opportunity to tell his parents about the child. If he did not do so, the local authority was authorised to tell them.
Adoption across borders
Re E (Scottish Adopters English Adoption Proceedings)
High Court (Family Division)
Cobb J
2 February 2019 [2019] EWFC 9
E was removed from her parents and was made the subject of final care and placement orders at the age of six months. Her older sibling had been adopted by a couple living in Scotland with whom E was also placed. The adopters filed their application to adopt E in the court in England where the care proceedings had been heard and a question was raised as to whether this was the appropriate forum.
Held
The entitlement to apply to adopt a child under the Adoption and Children Act 2002 is set out in section 49 of the Act. It requires applicants for adoption either to be domiciled in a part of the British Islands or to have been habitually resident in a part of the British Islands for at least 12 months. For a couple, either one of them must be domiciled, or both must have been habitually resident. This couple had been habitually resident in Scotland for over a year at the time they made their application and were therefore entitled to make an application under the English Act. Cobb J points out that they would also have been able to make an application under the Adoption and Children (Scotland) Act 2007, which has the same basic requirements and recognises an English placement order.
Comment
Adopters often prefer to make applications for adoption orders in the court that made them. If the birth parents are likely to contest, it means that their application could be listed in front of the judge who made the placement order and has knowledge of the case. Making an application in their local court identifies the area of placement and this might be something best avoided in cases where anonymity is important. This case confirms that there is no objection to a child being placed in Scotland but adopted through an English court. The judgment includes a useful table of clauses from the English and Scottish Acts that mirror requirements and recognise each other’s orders. The Scottish legislation is dated later than the English and the drafting includes the recognition of various English orders. The English statute has been amended to recognise the new Scottish orders, but the English regulations have not necessarily followed suit. In particular, English adoption agencies need to be careful when matching a child with adopters approved by Scottish agencies. Regulation 32 only allows a panel to recommend a match of a child with adopters who have been approved under Regulation 27. Scottish adopters will of course have been approved under Scottish regulations and so are not eligible to be matched. The prospective adopters’ reports in both jurisdictions require the same information, so there should be no difficulty in the matching panel approving the Scottish adopters under the English regulations at the same time as they make the match. However, it is an example of the English legislators not having considered fully the need for easy integration across the UK’s internal borders. In several situations the requirements for placing a child halfway across the world are more clearly set out than those for placing a child from England in Scotland.