Post-placement order contact: necessary or desirable?

The guidance in Re S (Placement Order Contact) [2015] EWCA Civ 823 (“Re S”) is much welcomed by courts and practitioners alike. As Sir Andrew Macfarlane observes at [71] – [72] of Re S, in recent years there has been a research-driven shift towards greater openness to adopted children staying in touch with their birth families. The question of how the court should reflect that shift when making contact orders under section 26 of the Adoption and Children Act 2002 (“ACA 2002”) is a difficult one.

In essence, the approach set out in Re S, is that when making a placement order, the court must undertake a fact-specific analysis of whether inter-sibling contact is essential or desirable for the lifelong welfare of the child who is the subject of a placement order.

In cases where contact is essential, the court has a ‘responsibility’ to make a section 26 contact order. In cases where contact is desirable, the benefit of guaranteeing that contact through an order should be balanced alongside other relevant factors in the welfare matrix. Such factors will include assessing and weighing the risk that making an order could have a detrimental impact on the adoption agency’s efforts to find prospective adopters who are willing to offer the permanent stability and security that the court has found that child needs.

The appealed judgment

This appeal arises from public law proceedings concerning two brothers, ‘R’ (aged 8) and ‘S’ (aged 2). The lower court made findings of fact that the brothers had been subject to serious physical abuse by their father and that their mother had failed to protect them and neglected their medical needs. This abuse had led to S sustaining serious head injuries, which may result in him developing neuro-developmental difficulties. Further, the parents were found to have been consistently dishonest about their parenting and manipulative in their approach to the proceedings.

At the final hearing, the judge made care orders for both children and a placement order for S. S would have no further contact with his parents. R, in foster care, would continue to have limited direct and indirect parental contact. Regarding inter-sibling contact, the local authority, Guardian, and parents were all agreed on proposed arrangements for moderate inter-sibling contact post-placement order.

The parents sought for those sibling contact arrangements to be encapsulated in a section 26 contact order. The local authority and the Guardian did not support the making of an order, preferring for the arrangements to be left to the adoption agency to implement. There was consensus among professionals that a court order would risk deterring prospective adopters for S from a pool that was already likely to be limited given his potential neuro-developmental difficulties.

The Judge declined to make an order, accepting the professionals’ view regarding potentially deterring prospective adopters. His conclusion was that contact between R and S ‘should be promoted and would ideally be in place’ but that it ‘should be seen as a desirable element rather than an essential’. The Judge balanced the aspiration to achieve the maintenance of contact between the brothers with ‘the welfare imperative of finding an adoptive home for S, having regard to his welfare throughout his life’. He held: ‘I do not consider that making a section 26 order for direct sibling contact would be better for S than not doing so. I therefore decline to make such an order’.  It was this decision that the mother appealed.

The framework

The Court of Appeal approved the lower court’s approach; issues of section 26 contact orders should be considered through the prisms of:

• the section 1(2) – (4) ACA 2002 considerations, of which the ‘child’s welfare throughout his life’ is paramount; and
• the ‘no order’ principle enshrined in section 1(6) ACA 2002, that the court ‘must not make any order under this Act unless it considers that making the order would be better for the child than not doing so’.

After a comprehensive review of the authorities, the court drew a distinction between ‘those cases where continuing direct contact is considered to be necessary for the child’s future welfare, and cases where the achievement of an adoptive home is the overarching goal, with future sibling contact being desirable as opposed to a pre-requisite’ [32].

Responding to general criticism made by the appellant that the risk of deterring prospective adopters is used as a ‘trump card’ to oust section 26 contact orders, Sir Andrew McFarlane stressed the importance of a bespoke, fact-specific and evidence-led analysis in each case, stating:

In some cases the need to preserve contact will be a preference, in others it may be essential. In all cases it will be necessary to take account of the impact on family finding of a care plan that includes ongoing contact and/or proposals for a section 26 order for contact. There will be some cases where the priority to be given to preserving the sibling relationship will be such that the court should make a contact order, notwithstanding that to do so may make the task of finding an adoptive family more challenging. [44]

Other interesting points considered

The appeal highlighted the practical challenge of inadequacies in the system; online family-finding platforms often fail to distinguish between the requirements of sibling contact versus parent contact. The uncertainty adds complexity to the placement process, with prospective adopters unclear on the requirements of a child.

The court also considered the need for flexibility. Paragraphs [78] – [80] discuss it potentially being helpful to consider dividing the period to be covered by any section 26 contact order into two phases: up to identification of a placement, and thereafter, with an opportunity for applications to vary or revoke the order at the end of phase one. Sir Andrew MacFarlane expressly endorsed a suggestion of Ms Harris for Coram BAAF, that in some cases, the most appropriate means of meeting a child’s needs may be for the form of a section 26 order to allow for a ‘significant degree of flexibility’. Orders could set a roadmap for contact, rather than inflexible terms and/or, it may be more appropriate for judicial views and endorsement of future contact plans to be recorded in a recital to the placement order.

Conclusion

The judgment is welcome clarity on how section 26 ACA 2002 sits in the landscape of statutory powers relating to adoption. However, it seems the overriding message of Re S is confirmation of what all family practitioners already know: individualized, fact-specific, child-centered decision-making remains at the heart of care and placement proceedings. Maintaining that lens when considering issues of contact is critical for the judges, legal practitioners and professionals responsible for children going through the process of finding a new family.

Bethany Hutchison is a pupil barrister at Deka Chambers.