“(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 theChildren 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 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.”
“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.”
“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the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent’s or guardian’s consent should be dispensed with. This subsection is subject to section 52 (parental etc consent).”
“Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.”
“When making the adoption order or at any time afterwards, the court may make an order under this section (a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or (b) prohibiting the person named in the order under this section from having contact with the child.”
“It is quite clear that the test for severing the relationship between parent and children is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do.”
“It seems to me essential that, in order to safeguard and promote the welfare of the child throughout his childhood, the court should retain the maximum flexibility given to it by the Act and that unnecessary fetters should not be placed upon the exercise of the discretion entrusted to it by Parliament. The cases to which I have referred illustrate circumstances in which it was clearly in the best interests of the child to allow access to a member of the child's natural family. The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation.”
“contact is more common, but nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.”
“151. On the facts of this case, there is a universal recognition that the relationship between 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. 152. In our judgment, the making of placement orders in the instant case requires additional safeguards for the two children over and above the fact that the court has made contact orders under section 26 of the 2002 Act. We accordingly direct that all further applications in the case, including any application for either child to be adopted, should be listed before the same judge, and that all further applications in the case be reserved to him. Whilst we cannot, of course, fetter the future exercise of his discretion, which he must exercise as he thinks fit on the facts of the case, we are satisfied that he must retain control of the case, and that no final step should be taken in relation to either child without his imprimatur. 153. We repeat that 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 2002 Act 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 D and S, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute, or if it is argued that it should cease for any reason. 154. We do not know if our views on contact on the facts of this particular case presage a more general sea change in post adoption contact overall. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children's welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act. This is what Parliament has enacted. In section 46(6) of the 2002 Act 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.”
“52. The starting point for any consideration of this issue must be the settled position in law that had been reached by the decision in Re R, which was confirmed by this court in the Oxfordshire case and in Re T. The judgment in Re R was, itself, on all fours, so far as imposing contact on unwilling adopters, with the position described by Lord Ackner in Re C. 53. As stated by Wall LJ in Re R, prior to the introduction of ACA 2002, s 51A, the position in law was, therefore, that ‘the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.’ 54. Although s 51A has introduced a bespoke statutory regime for the regulation of post-adoption contact following placement for adoption by an adoption agency, there is nothing to be found in the wording of s 51A or of s 51B which indicates any variation in the approach to be taken to the imposition of an order for contact upon adopters who are unwilling to accept it.”
“59. ACA 2002, s 51A has been brought into force at a time when there is research and debate amongst social work and adoption professionals which may be moving towards the concept of greater 'openness' in terms of post-adoption contact arrangements, both between an adopted child and natural parents and, more particularly, between siblings. For the reasons that I have given, the juxtaposition in timing between the new provisions and the wider debate does not indicate that the two are linked. The impact of new research and the debate is likely to be reflected in evidence adduced in court in particular cases. It may also surface in terms of advice and counselling to prospective adopters and birth families when considering what arrangements for contact may be the best in any particular case. But any development or change from previous practice and expectations as to post-adoption contact that may arise from these current initiatives will be a matter that may be reflected in welfare decisions that are made by adopters, or by a court, on a case by case basis. These are matters of 'welfare' and not of 'law'. The law remains, as I have stated it, namely that it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree. … “61. Post-adoption contact is an important issue which should be given full consideration in every case [ACA 2002, s 46(6)]. Whilst there may not have been a change in the law in so far as the imposition of a contact regime against the wishes of prospective adopters is concerned, there is now a joined-up regime contained within the ACA 2002 for the consideration of contact both at the placement for adoption stage and later at the hearing of an adoption application. Further, and in contrast to the situation prior to 2014 where the issue of contact on adoption was determined under s.8 by applying the CA 1989, s.1 welfare provisions, issues under both s.26 and s.51A of the ACA 2002 will be determined by applying the bespoke adoption welfare provisions in ACA 2002, s.1, where the focus is not just upon the welfare of the subject of the application during childhood but throughout their life. 62. A placement for adoption hearing has the potential for having an important influence upon the development of any subsequent long-term contact arrangements. As required by ACA 2002, s.27(4), the court must consider the issue of contact and any plans for contact before making a placement for adoption order. The court’s order may well, therefore, set the tone for future contact, but the court must be plain that, as the law stands, whilst there may be justification in considering some form of direct contact, the ultimate decision as to what contact is to take place is for the adopters and that [it] will be ‘extremely unusual’ for the court to impose a contrary arrangement against the wishes of adopters.”
“for these two children to retain their culture, it would be a difficult task for any adopter wishing to claim the children as their own in circumstances where the very culture the children would be exposed to in contact would be one in which adoption is anathema.”
“there is a real need to ensure that the culture and heritage of the two children is not lost by being placed away from it. It is of real value to them and it is where they come from. The risks of that being diluted to nothing or being ignored are not fanciful in my view. They are real risks. That aspect of their development can only be maintained by contact with their parents, which in my judgment simply would not happen in an adoptive placement as opposed to a foster placement.”
“The disadvantage of adoption is that there is no effective mechanism for it [i.e. contact] to be maintained other than, in reality, by the agreement and good will of the adopters, upon whom everybody would have to rely in terms of keeping their word. The court would be unlikely to foist an unwanted contact order upon adopters in respect of sibling contact, and certainly not in respect of parental contact.”
“How will this cultural shift towards greater openness impact upon the work of the Family Court and how may the court support the looked-for change in the default setting so that maintaining relationships with a child’s birth family is the starting point, rather than the exception?”
“Orders for contact made under ACA 2002, s 26 when making a placement for adoption order set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important ‘known known’ about the child to be taken on board by any potential adopters with whom placement may be considered.”
“…the likely template for contact arrangements post adoption should be set at the placement order stage. This is not a change in the current approach. A court making a s.26 contact order, in keeping with the duty under s.1 and its lifelong focus, should have regard not only to the short-term contact arrangements required in the pre-adoption stage, but also in setting the course for the maintenance of family relations over the longer term if that is in the child’s best interests. Also, there is nothing wrong, and I would suggest it should be good practice, for a s.26 contact order to contain a recital as to the court’s view on contact arrangements post-adoption.”
“It is important to consider that sibling relationships are likely to last the longest in a person’s lifetime and if they can be maintained this can help and support a child who lives away from their parents to retain a sense of identity. Should the children be placed in any dynamic outside of a quad the local authority will seek families that support continuing in person relationships between the siblings at least 6 times per year with surrounding letter box contacts on special occasions such as birthdays and Christmases. Additional benefits of this arrangement would allow the two families to offer support to one and other”
“the local authority will not defer from finding families who are aware of, and are fully prepared to, support the children in maintaining their sibling links. Without this, the local authority are of the firm standpoint that they would not be the right families for the children.”
“Of equal, if not greater importance, all four have a close bond with each other, and all benefit from their relationship with each other …. The sibling relationship in this case is likely to outlast relationships with the parents, and the closeness in age of the sibling group means that these relationships are likely to endure for the rest of their lives. In long-term foster care the maintenance of those relationships can be guaranteed.”
“This is not to say that in every case adoption is to be preferred over [long-term fostering] The positives and negatives have to be evaluated in each case and the risks balanced. There is, in my view, a danger that long-term foster care is too readily discounted simply on the general ground that it lacks the permanence of adoption without the rigorous analysis of the proportionality of long-term foster care versus adoption required.”
“41. The advantage of adoption is that it offers the permanence that long-term foster care cannot. The adopted child becomes fully a part of his or her new family. There is no continued local authority involvement. Adoptive placements can and do break down, but I accept that in this case, given the absence of any behavioural issues for R and C, breakdown is a much less significant risk. I cannot discount it altogether. R and C have clear memories of their mother and their siblings and the loss of those individuals may cause emotional harm and upset when the children are older and are able to understand their circumstances better. 42. Permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family. This can sometimes be ameliorated by continued contact between the birth family and the adopted child, but that is at the discretion of the adopters. In this case, the local authority has committed itself to a search only for adopters willing to promote direct sibling contact. That commitment is a tacit recognition of the importance of the sibling relationship in this case, but sibling contact cannot be guaranteed. Even adopters who are open to it initially may not continue to promote it after the making of an adoption order.”
“44. I weigh each of the options against [the] other and I recognise that the arguments are finely balanced. However, ultimately I am not able to accept either the guardian or the social worker’s recommendation in respect of adoption for R and C. These are very young children, but an argument that because of their ages they deserve a right to permanency comes perilously close to social engineering. The role of the court is to protect children from harm. It is not to improve their life chances or to move them to placements where they will be better off. I have to consider R and C’s lifelong welfare. In that [context], the sibling relationship assumes a critical importance. Its maintenance simply cannot be guaranteed in adoption, certainly not to any meaningful level. 45. Furthermore, the mother cannot be completely ruled out. At present the risks to the children of a return to her care are simply too great, but she also has much she can offer once she is able to resolve whatever it is in her emotional and psychological makeup that leads her to make poor decisions about partners and to become socially isolated. Adoption in this case is neither necessary nor proportionate and any advantages in terms of permanence are outweighed by the loss of the sibling and parental relationships. To my mind, long-term foster care, despite its negatives, is the most proportionate means of meetings the children’s welfare in this case, and it guarantees the preservation for R and C of sibling and parental bonds. For those reasons, I make care orders in respect of all four children and I refuse the placement order applications.”
“When faced with a choice between adoption and fostering, the court's primary task is to take a decision as to whether one or the other is right for the child as a matter of principle. In order to do that, it will not usually have to have evidence about the availability of placements: Re T (Placement Order) (CA)[2008] EWCA Civ 248 ,[2008] 1 FLR 1721 at paragraph 17.”
“There may be cases at the margins where specific evidence will be necessary, examples being where the plan is for the adoption of a much older child, or the placement of a child with severe health or behavioural problems, or of a large sibling group.”