“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 […] 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. […] 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 … in many cases, it is in the interests of adopted children to continue to have some direct contact with members of their birth family.”
(Paragraphs 3-7 of the judgment).
Court of Appeal sets aside family court decision saying placement (for adoption) orders and continued sibling contact are in the children’s best interests and not mutually exclusive
Background
This judgment concerns two young siblings – a girl aged 3 years 9 months referred to in the judgment as R and a boy aged 2 years 9 months referred to as C. R and C have two older half-brothers, N, aged 6, and Y, aged 5.
All four children were taken into local authority care due to serious concerns about their mother’s inability to provide adequate care and supervision within the family home. During care proceedings it was decided R and C would live together with foster carers while their older brothers, N and Y, would live together with different foster carers.
A sibling assessment was carried out and found that “each child has a clear sense of being part of a sibling group of four and, except for C they have shared experiences of living [with their mother]”. It was initially proposed that Y, R and C should be placed together for adoption and that N should remain with his foster carer long-term. With the support of the children’s guardian, the plan was altered and it was proposed that the two elder children, N and Y, remain in long-term foster care, and that R and C be placed together for adoption.
The local authority applied for placement orders for R and C with care plans that envisaged continued direct contact with their older brothers at least six times a year and identifying adopters committed to facilitating contact. In a statement in support of the plan, ongoing contact between the children was described by a social worker as “paramount”.
Family court’s decision
The local authority’s application for placement orders for R and C was dismissed and the family court directed that the children’s care plans should be revised to reflect the plan for both children to live with long-term foster carers.
This decision was appealed by the local authority.
The grounds for appeal
The local authority appealed the Family Court’s decision on two grounds:
- It was wrong to conclude that the relationship between the siblings could not be preserved if an adoptive care plan was approved; and
- It was wrong to refuse placement orders on the basis that the children could potentially one day return to their mother’s care.
[Please note that out summary focuses on ground 1 only; for information about ground 2, please refer to paragraphs 41-43 and 55 of the judgment].
The legal framework
Placement order
Section 21 of the 2002 Act defines a placement order as “an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority”.
For a placement order to be made, each parent or guardian of the child must consent to the child being placed for adoption (though this consent can be withdrawn) unless the court is satisfied that the parent/guardian’s consent “should be dispensed with”. Section 52 of the 2002 Act contains detailed provisions about parental consent in the context of placement orders.
Once a placement order is made, it remains in force until —
(a) it is revoked by the court (see section 24 of the 2002 Act),
(b) an adoption order is made in respect of the child, or
(c) the child marries, forms a civil partnership or attains the age of 18 years.
Adoption – fundamental principles and the matters to which the court and adoption agency must have regard to – section 1 of the Adoption and Children Act 2002
Whenever a court or adoption agency is coming to a decision relating to the adoption of a child, the following statutory provisions apply:
– The paramount consideration of the court or adoption agency must be the child’s welfare, throughout [their] life – section 1(2);
– 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 – section 1(3);
The court or adoption agency must have regard to the following matters (among others) – section 1(3):
(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 [their] 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…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 its 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.
Relative is defined in section 144 as “a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage or civil partnership”. Additionally, section 1(8) states that “for the purposes of section 1 of the 2002 Act, (a) references to ‘relationships’ are not confined to legal relationships, (b) references to a relative, in relation to a child, include the child’s mother and father”.
Lastly, the ‘no order principle’ applies in the context of placement and adoption orders, meaning the family court must not make any order under the 2002 Act unless it considers that making the order would be better for the child than not doing so – section 1(6).
The principles set out in section 1 apply whenever a court or adoption agency is “coming to a decision relating to the adoption of a child” – this covers decisions about the making of placement and adoption orders, including their revocation, and orders for contact in the context of placement and adoption orders (as per sections 26 and 51A), their variation or revocation.
Contact and placement orders – section 26 and section 27 of the Adoption and Children Act 2002
Under section 26(1), when a placement order is made, any existing contact order/s (i.e., those made under section 8 or section 34 of the Children Act 1989) cease/s to have effect.
While an adoption agency is authorised (under a placement order) to place a child for adoption, no application can be made for a contact order under the Children Act 1989 but the court may make an order for contact under section 26(2)(b) of the Adoption and Children Act 2002 “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” – section 26(2)(b) of the 2002 Act.
The people who can apply for a contact order under the 2002 Act include the child, the adoption agency, any parent, guardian or relative, any person in whose favour there was previously a contact order (incl. under the Children Act 1989) and any person who has obtained the court’s leave (permission) to make such an application. The family court can also make a contact order on its own initiative.
A contact order made under section 26 has effect (remains in force) while the adoption agency is authorised to place the child for adoption but the order may be varied or revoked by the court on an application by the child, the agency or a person named in the order – section 27(1) of the 20002 Act.
Finally, section 27(4) states:
(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.
For information about the statutory provisions governing the consideration of contact arrangements and making of contact orders at the adoption order stage, please refer to section 46(6) and section 51A (‘Post adoption contact’) of the Adoption and Children 2002.
Case law
[For a detailed analysis of case law referenced in the judgment, please refer to paragraphs 22-40].
In Re P (children) (adoption: parental consent) [2008] EWCA Civ 535, the Court of Appeal ruled:
“…contact between [the children], and between the children and their parents, should … be a matter for the court, not for the local authority, or the local authority in agreement with prospective adopters” (para 147) […] “On the facts of this case, there is a universal recognition that the relationship between [siblings D and S] needs to be preserved. It is on this basis that the local authority/adoption agency is seeking the placement of the children. In our judgment, this means that the question of contact between the two children is not a matter for agreement between the local authority/adoption agency and the adopters: it is a matter which, ultimately, is for the court. It is the court which will have to make adoption orders or orders revoking the placement orders, and in our judgment it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children” (para 151) […] “our reason for taking this view is that the judge’s judgment is predicated on the proposition that the relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placements, or if one is adopted and the other fostered. In these circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the [Adoption and Children Act 2002] to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and/or the prospective carers of [the children], be they adoptive parents or foster carers. It is the court which must make the necessary decisions …” (para 153).
In para 154 of the judgment, the Court of Appeal said about contact post-adoption:
“… In section 46(6) of the [Adoption and Children Act 2002] Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned”.
The Court of Appeal’s analysis of the family court’s decision
Citing the reasoning put forward by the local authority’s lawyer, the Court of Appeal concluded that the decision of the lower court was wrong.
The family court dismissed the local authority’s application for a placement order for R and C because ongoing contact would be, ultimately, “at the discretion of the adopters” and that “sibling contact cannot be guaranteed” because “even adopters who are open to it initially may not continue to promote it after the making of an adoption order”. Citing Re P (children) (adoption: parental consent), the Court of Appeal concluded that the judge overlooked the court’s duty to “set the template for contact going forward” and exercise its responsibility to make orders for contact if they are required in the interests of the children.
Furthermore, the Court of Appeal concluded that the lower court “failed to provide a sufficiently robust and rigorous analysis of the advantages and the disadvantages of the realistic options for the children”.
Referencing the considerations listed in section 1 of the Children and Adoption Act 2002, the Court of Appeal said:
“…In each case, it is the child’s welfare throughout his or her life that is our paramount consideration. We must have regard to the presumption that delay in taking a decision is likely to prejudice the child’s welfare. We must have regard to the matters in the extended welfare checklist, among others … In considering [the care options for R and C], the factors of particular relevance are, in each case, (1) the child’s wishes and feelings; (2) his or her particular needs; (3) the likely effect on the child throughout his or her life of ceasing to be a member of the original family and becoming an adopted person; (4) any harm the child has suffered or is at risk of suffering; (5) the relationship each child has with their parents and siblings and the value to the child of that relationship continuing; and (6) the wishes of the parents and of N and Y. These two children are too young to articulate their wishes and feelings. It is reasonable to conclude, however, that they would want to live in a home where they were loved and well cared for and felt secure. They would want to live with their siblings to whom they are attached or, if not, have regular contact with them … Like all children, they need the security of a stable and loving home. They need to have the opportunity to form attachments with primary care givers. They have a close relationship with their siblings which must be maintained through regular contact. Whether they are in long-term fostering or an adoptive placement, they will need help and emotional support coming to terms with the fact that they are not living with their birth family and the sense of loss that this may bring. They will also need help with the sense of loss they will suffer moving on from their current carers. They will need assistance growing up with an understanding of their background and identity. … [R and C] have a close relationship with their brothers and it is strongly in their interests for that relationship to continue. The local authority is committed to placing them only with carers who are willing to accommodate contact in accordance with the plans […] Although N and Y are too young to express a wish about their siblings’ future, it is safe to assume that, if they cannot all live together, they want to carry on seeing them regularly”. (Paragraphs 77-83 of the judgment; emphasis added)
The Court of Appeal’s analysis of the advantages and disadvantages of long-term fostering and adoption
With respect to long-term fostering for R and C, the Court of Appeal acknowledged the advantages of the children remaining members of their birth family whilst receiving high-quality care and protection from harm from their foster carers. They’d also be able to maintain regular contact with their siblings. At the same time, long-term fostering would not provide the same degree of permanence and security as adoption, and the children would most likely remain in local authority care until adulthood which could potentially increase their vulnerability.
In relation to adoption, the Court of Appeal stressed that it would provide R and C with a permanent home and a higher degree of stability and security, and that becoming members of the adoptive family would foster a deeper sense of belonging to the family. Because the local authority’s plan for R and C included continuing sibling contact, R and C would be able to maintain a relationship with their brothers and, as a result, a better understanding of their background and identity. At the same time, R and C would cease to be members of their birth family, which would also include a severance of the legal relationship with their brothers. R and C would also loose direct contact with their mother. As with long-term fostering, the risk of adoption breakdown cannot be ruled out.
“Having considered the relevant factors in the statutory welfare checklist, and analysed the advantages and disadvantages of the two options, I have come to the clear conclusion that, notwithstanding the disadvantages highlighted in the previous paragraph, adoption in accordance with the local authority’s plans is the only option which meets the children’s needs. R and C need a placement that will provide them with the greatest level of security and a family in which they can grow up feeling a sense of belonging. They also need a placement which will enable them to maintain a relationship with their brothers through regular contact. Long-term fostering can meet the latter need but not the former. Adoption in accordance with the local authority’s plans is the only option which meets both of these needs. This will mean that the children no longer have direct contact with their mother, but that is necessary in order to ensure that they have the opportunity to achieve the degree of stability and security which only adoption can provide. This will, of course, be an interference with the mother’s Article 8 rights, but that interference is necessary and proportionate in order to secure the children’s right to a stable and secure family life”. (Paragraph 89 of the judgment; emphasis added)
The Court of Appeal’s decision
The Court concluded that placement orders were consistent with R’s and C’s welfare and authorised the local authority to place both children for adoption. The earlier decision of the Family Court was set aside.
In its judgment, the Court of Appeal directed continued direct contact between R and C and their brothers:
“…pursuant to s.26(2)(b) of the 2002 Act, I would add an order requiring the person(s) with whom R and C live, and any other person(s) with whom they are to live while they remain the subjects of placement orders, to allow them to attend visiting contact with their siblings N and Y six times per year, in accordance with arrangements made by the local authority”. (Paragraph 92 of the judgment; emphasis added)
The Court indicated the placement orders would include the following directions (which had been proposed by the local authority as part of its care planning for R and C): for the local authority to arrange direct sibling contact between the children six times per year; for the local authority to search exclusively for and match R and C “only with prospective adopters committed to facilitating inter-sibling contact … and who will propose to adopt both … children”; for the local authority to bring R and C circumstances back to court if prospective adopters matching the agreed requirements have not been found within six months.
The Court of Appeal concluded that it was the Court’s view “that after adoption R and C should continue to have direct contact with N and Y six times a year”. (Paragraph 93 of the judgment; emphasis added)
You can read the full judgment here: R & C (Adoption or Fostering) [2024] EWCA Civ 1302 (30 October 2024)
