We’ve come across what we think is the first ever judgment published on TNA/BAILII where a post-adoption contact order under section 51A of the Adoption and Children Act 2002 has been made. However, this order makes rather a fleeting appearance in the very long and strongly-worded judgment, Re A (A Child): Contested Adoption and Local Authority Conduct [2024] EWFC 192 (B) .

There are 295 paragraphs in this judgment and almost all of it is about the very unusual facts rather than the law, so here is a brief outline and highlights.

Background

A is now aged three. Mr Q and Ms R were her birth parents. HHJ Roberts made care and placement orders for A two years ago (this isn’t a published judgment, that we can find). A has lived with Mr and Mrs X her whole life, originally in their role as foster carers for Lewisham Council. Last autumn, Mr and Mrs X successfully applied to HHJ Roberts for permission to apply to adopt A. Their application was not supported by the local authority – although the council had a placement order, they had not placed A for adoption and were applying to discharge that placement order. So this was a ‘non-agency adoption’ case.

A had gone straight from the hospital shortly after her birth to live with Mr and Mrs X, although we can’t see whether that was a section 20 arrangement or under a court order. In any event, Mr Q and Ms R were subsequently assessed as unable to safely parent A, leading to the orders made by HHJ Roberts in 2022 when A was about 9 months old. The judge points out that everyone was aware at that point that Mr and Mrs X were interested in adopting A.

However, Mr Q and Ms R had another child, B, some three months after the care and placement orders were made for A and, after a complicated series of plans and placements, Mr Q (by then separated from Ms R) turned out to be an excellent parent to B and was granted a child arrangements order for B in March 2023. Unsurprisingly, as the council had not placed A for adoption with Mr and Mrs X, or found other adopters for her, questions arose for Mr Q as to whether it was necessary for A to be adopted at all.

The adoption hearing in 2024

This judgment was published this July; it doesn’t include the date of the hearing but was presumably held within the last few months. Lewisham, and the un-named local authority where Mr and Mrs X live, and Mr Q all argued that the placement order should be revoked. They opposed Mr and Mrs X becoming adopters, because A could now be cared for by her biological parent, Mr Q. The Cafcass guardian and an independent social worker however supported Mr and Mrs X as adopters. Mr and Mrs X were suggesting that A have monthly contact with Mr Q and B, and the guardian suggested this arrangement be formalised by an order.

The judgment sets out lengthy evidence from the parties (including several social workers) and from the guardian, a manager on behalf of an independent social worker, and a psychologist (Dr Willemsen). The judge is critical of several aspects of the history and conduct of the case, saying [at para 255]:

‘My task has been made more difficult by the following factors:

• The Local Authority’s misunderstanding throughout these proceedings of the relevant law which pervades their evidence
• Their failure to consider A’s needs in the round
• Their failure to be frank and fair with Mr and Ms X and with the court
• Their failure to obey court orders for disclosure
• The inadequacy of the witness statements filed on behalf of the father and his sister
• The failure of all the advocates, other than Mr Wilson [acting for Mr and Mrs X], to provide me with their PD documents in a timely manner …  
• The decision of Z Council [where Mr and Mr X live] not to be represented in this case and their volte face two days before the hearing has been unhelpful; if they had been more engaged in the proceedings we may have had, for example, an assessment of the support Mr and Ms X might need if an adoption order is made.’

Decision

After discussing the adoption welfare checklist, the judge concludes as follows. (We’re setting this part out in full as it gives a good flavour of the rest of the very lengthy judgment.)

291.

For all these reasons I think that A’s welfare throughout her life is most likely to be achieved by my making an adoption order to Mr and Ms X . I do not think that the plan for adoption which I approved over 2 years ago should be changed as I think that A’s welfare throughout her life still requires that she is adopted provided it is by Mr and Ms X. I recognise that this is a far reaching and very serious order, affecting A’s legal relationships throughout her life, and that the order will have life long effects on A but I believe that it is the right order for A and that it is the proportionate order to make in all the circumstances which I have set out.

292.

I dispense with the consent of each of Mr Q and of Ms R to the making of an adoption order because A’s welfare requires me to do so. I make an adoption order.

293.

I make a contact order which will be framed in such a way to say that there will be monthly staying contact between Mr Q and A from Saturday mornings to Sunday evenings, i.e. 12 times a year but that this will follow a short period of supervised contact to ensure that the emotions following this hearing are under control, and to allow mediation to happen, and then a period of visiting contact so that Mr Q can get used to taking A out and about along with B before the staying contact begins. There will be such other contact as Mr and Ms X and Mr Q may agree.

294.

I will hear what discussions have taken place but I am minded to make a Family Assistance Order to one of Z Council or LB Lewisham for 12 months with the purpose of assisting with the development of contact. I will need to hear if Mr and Ms X and Mr Q consent to this.

295.

I require LB Lewisham to organise an independent enquiry into the Meliot Centre [a contact centre contracted to Lewisham]. I am very troubled by what I have learned from the Children’s Guardian and from Mr and Ms X. They tell me, and I accept, that reception staff and contact supervisors have been rude and hostile to them; they tell me, and I find, that contact notes are inaccurate and biased… I also require LB Lewisham to review their conduct of this case in the light of the many failings I have set out in this judgment to include their failure to look holistically at any point at A’s welfare needs, their failure to present the case in a fair and balanced way, and the treatment of the evidence of the IRO.

Post adoption contact

Orders for contact or for no contact can in theory be made alongside an adoption order under the Adoption and Children Act 2002 as amended in 2014 to add s 51A. The potential benefits to children of well managed post-adoption contact have been increasingly recognised through research by academics such as Elsbeth Neil and June Thoburn, and are encouraged by some adoption agencies, although the resource-intensive nature of operating such an arrangement makes it problematic.

Although recognising the messages from research, the President of the Family Division reiterated existing case law in Re B (A Child: Post-adoption contact) [2019] EWCA Civ 29,

‘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.’ [para 59]

Although in Re A, the adopters are agreeing to contact, we are a little surprised that HHJ Roberts’ judgment does not refer to either the legislation or to the case law in this contentious area. If this is indeed a landmark decision, it may reflect the judge’s intention to ensure that A, her sibling, and the important adults in her life receive support services, rather than indicating a significant shift in practice. The circumstances of the case are themselves very unusual and this is a decision by a circuit judge in the Family Court, so doesn’t set judicial precedent that other judges have to follow.

Image: stairwell at Lewisham Council Office. Thanks to Stave Cadman at flickr

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