Re B (A Child) (Post-adoption contact) [2019] EWCA Civ 29 is the first time (since a change in the law in 2014) that the Court of Appeal has considered when an order should be made that an adopted child will have continuing contact with their birth family after he or she is adopted.

We are now looking at section 51A Adoption and Children Act 2002 – which was inserted in that Act in 2014 – instead of private law section 8 Children Act 1989 orders. This is because, in 2014, the old section 8 contact orders became “child arrangements orders”; they were no longer appropriate in an adoption context. Although there are some subsequent published High Court cases where contact was discussed, this Court of Appeal judgment has now provided guidance on the interpretation of S 51A.

Although it has just been published, the judgment dates from last November. In it, Sir Andrew McFarlane, President of the Family Division, is clear that, although the legislation is now different, the court’s approach is not. He confirms and applies the pre-2014 case law which says that making an order that adoptive parents must allow their child contact with their birth parents will be exceptional. In this particular case, the evidence led to the conclusion that the adopters’ position regarding contact was reasoned, flexible, and would adapt to the child’s needs as she got older. Therefore, an order was not necessary.

This was a foster to adopt placement which meant that the child was already living with the adoptive applicants (in a foster placement) before the care and placement orders were made. The adopters and the birth parents therefore know each other. According to this judgment, the adopters had interpreted some of what was said by the original judge, when he made the care and placement orders, as meaning that the future adoption order would probably include an order for contact. Unfortunately, this led to a year’s delay with an impact on the stability of the placement. The judge who then made the adoption order refused the section 51A application, and the birth parents appealed. The Court of Appeal heard some interesting arguments on behalf of the birth parents (and the Official Solicitor who was the mother’s litigation friend) but agreed with the adoption judge’s decision that a section 51A order would not be in the child’s welfare.

The adoption judge and the President both referred to recent and ongoing research about open adoption and emphasised that this should be applied by social workers and experts to the welfare issues in each particular case. However, “the law remains … that it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement[s] to which the adopters do not agree” [para 59].

For any readers who don’t already know about the research-based practice resources provided by the University of East Anglia and Research in Practice – here is the link to Contact after Adoption

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