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Post-adoption contact - recent developments

Child removal iStock 000007583512XSmall 146x219Martin Kingerley considers the issue of applications for post-adoption contact in light of the Children and Families Act 2014.

The advent of the Children and Families Act 2014 heralded a time of significant change within the family justice system. Inevitably, some changes will attract more attention than others. The new post-adoption contact provisions have, thus far, been the subject of limited comment. The aim of this article is to provide a brief summary of the new statutory provisions in respect of post-adoption contact and provide a short commentary on their practical implications.

The Statutory Framework

Section 9 of the Children and Families Act creates s51A and S51B of the Adoption and Children Act 2002. The sections applies where:

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(i) a child has been placed for adoption; or

(ii) authorisation has been given for a child to be placed for adoption; and

(iii) the court is making or has made an adoption order in respect of the child. [1]

Providing the above prerequisites are satisfied then the court may make an order which:

(i) requires the person in whose favour the adoption order is or has been made to:

(a) allow the child to visit or stay with the person named in the order; or

(b) for the person named in the order and the child otherwise to have contact with each other. [2]

As well as being a permissive order (as set out above) the court may also make a prohibitive order which prevents a person named in the order from having contact with the child who is or has been made the subject of an adoption order [3]. The court may make a prohibitive order of its own initiative when making an adoption order [4].

Terms of the order

Any order made pursuant to s51A will, unless revoked, have effect until the child’s 18th birthday [5] and may:

(i) contain directions about how it is to be carried into effect;

(ii) be subject to any conditions the court thinks fit; and

(iii) be varied or revoked by the court on the application of the adopters, the child or the person named in the order [6].

Timing of an application

Interestingly, the court may make the orders either permitting or prohibiting contact ‘when making the adoption order or at any time afterwards’ [7].

The court has the power to determine its own timetable when considering such applications and must determine them ‘without delay’. Any such directions shall be given by the court with the purpose of ensuring that the timetable is adhered to as far as is reasonably practicable [8].

s51A(3)(a)-(e) identifies the individuals who are permitted to be ‘named’ in an order under this section.

In summary they are:

(i) Any person (but for the adoption) who would be related to the child by blood or half-blood, marriage or civil partnership;

(ii) Any former guardian of the child;

(iii) Any person who had parental responsibility for the child immediately before the making of the adoption order;

(iv) Any person who was entitled to make an application for an order under s26 of the Adoption and Children Act 2002 in respect of the child (contact with a child placed or to be placed for adoption) by virtue of subsection 3(c), (d) or (e) of s 26.

(v) Any person with whom the child has lived for a period of at least a year. This must be a continuous period of one year, which must not have begun more than 5 years before the making of the application [9].

As of right an application may be made by either the person who has applied for the adoption order or in whose favour the adoption order has been or is being made and the child [10]. Any other class of potential applicant is required to seek and obtain the court’s leave to make the application [11].

In considering an application for leave, the court must consider the following factors:

(i) Any risk there might be of the proposed application disrupting the child’s life to such an extent that the child would be harmed by it (within the meaning of the Children Act 1989);

(ii) The applicant’s connection with the child; and

(iii) Any representations made to the court by either the child, the adopters or prospective adopters [12].

Commentary

There can be little doubt that the above provisions indicate the potential for a marked shift of focus in respect of post-adoption contact. The opportunity arises for a variety of individuals to make an application for such contact. The Act envisages that applications may be made by both those who are related to the child by birth and those who are not. This creates the prospect, at least, that step-parents, former foster carers and/or siblings may seek the court’s permission for such contact. Further, the child who is the subject of the adoption order or the adoption order application may also make such an application. Similarly, so may the adopter(s) or prospective adopter(s).

It is useful to note that all relevant parties are provided with the chance to assert their views on an application, whether for leave to pursue and application or for contact itself. This creates an inevitable tension between competing wishes and competing rights of the respective parties.

An argument which will almost always be considered by the court is the extent to which the proposed application, if so permitted, may disrupt the child’s life. Of interest is the use of the term ‘proposed application’ as opposed to ‘contact’. Seemingly, the court is to have an eye to the extent to which the court process will potentially disrupt the child’s placement.

The Act sets the threshold for disruption on a par with the test of harm as formulated by the Children Act. This means that the court must be satisfied that the disruption caused by the proposed application ‘might’ amount to significant harm. It appears to be a deliberately high threshold test for disruption or potential disruption which takes into account that some disruption is likely to flow from both the application and contact itself.

This approach is on a par with that of the Court of Appeal as summarised at paragraph 74 (vii) of Re B-S (Children) [2013] EWCA Civ 1146 in which it is made clear that the mere facts of placement or the passage of time cannot be determinative of an application for leave to oppose an adoption order application. It follows that in preparing such an application the proposed applicant who seeks leave will stand a better chance of challenging assertions of potential disruption if they can found their application on a sound factual basis, for example where previous contact has not been disruptive, where the child has positive memories of the applicant or where only limited but meaningful contact is sought.

In assessing the risk of harm, it is possible, but by no means certain, that independent assessment may be sought. CAFCASS is the most likely candidate to provide those who may be tasked with making such an assessment. In such circumstances, it may be useful to seek the involvement of the CAFCASS officer who reported in any care and/or placement order proceedings as their background knowledge may well prove invaluable.

This commentary is in no way intended to be an exhaustive discussion in terms of post-adoption contact. However, it is clear from even this summary that more thought needs to be given to such making such applications and the mechanisms by which the court should consider them.

Martin Kingerley is a barrister at 36 Bedford Row. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.

[1] S51A (1) (a) and (b)

[2] S51A (2) (a)

[3] S51A (2) (b)

[4] S51A (6)

[5] S51B (1) (d)

[6] S51B (1) (a)-(c)

[7] S51A (2)

[8] S51B (3) (a) and (b)

[9] S51A (7)

[10] S51A (4) (a) and (b)

[11] S51A (4) (c)

[12] S51A (5) (a)-(c)

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