Factual and Procedural Background
This appeal concerns post-adoption contact under the Adoption and Children Act 2002 (ACA 2002), section 51A, which provides for post-adoption contact orders for the first time before this court.
The child at the centre of the proceedings, referred to as "B", was born in April 2017 to parents with significant intellectual disabilities. Due to concerns about their ability to care for B safely, the child was initially placed in a residential assessment centre with the parents' agreement, and care proceedings commenced. After a 12-week assessment, the court approved the removal of B from the residential centre, placing her with foster carers who were also approved adopters ("the prospective adopters").
In September 2017, the local authority applied for an order to place B for adoption. On 20 October 2017, a final care order and placement for adoption order were made. The care plan recommended no ongoing direct contact between B and her birth parents. The judge at that stage invited further discussion on the possibility of direct contact but did not make an order for it.
Contact between the birth parents and B reduced and ceased by early November 2017, after which B’s placement with the prospective adopters became formalized as an adoptive placement. A meeting between the birth parents and prospective adopters took place in November 2017 and was reported to have gone well.
In December 2017, the prospective adopters applied to adopt B. The birth parents expressed a wish for post-adoption contact but did not consent to nor sought leave to oppose the adoption order. The court granted leave to the birth parents to apply for post-adoption contact under ACA 2002, s 51A in May 2018. The final hearing of that application was held in August 2018, and the application for post-adoption contact was refused by the judge, who stayed the adoption order pending the resolution of the contact issue.
The birth parents were granted permission to appeal the refusal of the s 51A contact order on the basis that the new statutory provisions and recent research warranted consideration by this court.
Legal Issues Presented
- Whether the introduction of ACA 2002, s 51A altered the legal test for granting post-adoption contact orders, particularly regarding the imposition of contact against the wishes of prospective adopters.
- Whether the judge erred in refusing the birth parents’ application for direct post-adoption contact with B in this case.
- What guidance, if any, should be provided by this court on the interpretation and application of ACA 2002, s 51A concerning post-adoption contact.
Arguments of the Parties
Appellant's Arguments
- The introduction of ACA 2002, s 51A signifies Parliament’s intention that more parents should succeed in applications for direct post-adoption contact, representing a change from pre-2014 case law.
- The judge wrongly applied a presumption that direct contact should only be ordered in exceptional circumstances, relying on outdated case law predating s 51A.
- The judge gave insufficient weight to the benefits of ongoing direct contact for B and wrongly prioritized the views of the adopters.
- Given the facts, if direct contact cannot be ordered here, it is difficult to conceive of any case where it could be.
Respondent's Arguments
- The judge correctly applied the law, which remains that imposing contact orders against the wishes of adopters is extremely unusual.
- The statutory scheme in s 51A does not create a presumption in favour of post-adoption contact nor alter the established approach.
- Parliament’s intent, as reflected in the Explanatory Note, was to reduce disruption to adoptive placements, supporting the adopters’ position.
- The adopters’ approach to contact was commendable, flexible, and child-focused, and the refusal to order direct contact was justified on the facts and law.
- Any greater openness in adoption should evolve through social work practice and case-by-case welfare decisions, not by altering the legal test.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re C (A Minor) (Adoption Order: Conditions) [1989] AC 1 |
Established that courts will rarely impose contact conditions against adopters' wishes; a complete break is the norm unless exceptional circumstances exist. |
Confirmed as foundational principle for post-adoption contact; contact orders against adopters' wishes remain extremely unusual. |
| Re R (Adoption: Contact) [2005] EWCA Civ 1128; [2006] 1 FLR 373 |
Reaffirmed that imposition of contact orders on unwilling adopters is extremely unusual; anticipated legislative changes. |
Used as the primary benchmark for assessing post-adoption contact; the court emphasized continuity of this principle post ACA 2002, s 51A. |
| Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 |
Confirmed the court’s jurisdiction to make contact orders under ACA 2002, ss 26 and 27; emphasized court’s role over local authority in contact decisions. |
Noted as important authority on court’s responsibility to maintain contact arrangements, but did not displace the principle limiting imposition of contact on adopters. |
| Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581; [2011] 1 FLR 272 |
Reaffirmed that imposing contact on unwilling adopters is extremely unusual; stressed respect for adopters’ parental responsibility. |
Applied to reject contact application; cited to confirm that the law remains protective of adopters’ wishes post-adoption. |
| Re T (Adoption: Contact) [2010] EWCA Civ 1527; [2011] 1 FLR 1805 |
Clarified that the principle from Re R remains the general approach; new legislation does not alter the presumption against imposing contact on adopters. |
Used to settle debate on whether s 51A changed the law; confirmed the continuation of the established legal test. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework under ACA 2002, especially sections 26, 27, 51A, and 51B, emphasizing the new statutory regime for post-adoption contact. It noted that the court must consider contact arrangements both at the placement stage and at adoption, with welfare as paramount.
The court reviewed the facts, including the birth parents’ disabilities, the child’s young age, the care provided by the prospective adopters, and the social work research supporting openness in adoption. The judge below had conducted a thorough welfare analysis, balancing the child’s identity and need for contact with birth parents against the adopters’ views and the child’s integration into the adoptive family.
The court considered prior case law, reaffirming the settled principle from Re R and related cases that imposing contact orders against adopters’ wishes remains "extremely unusual." The new provisions in s 51A do not indicate a legislative intention to change this principle; rather, the statutory scheme and explanatory notes suggest Parliament intended to protect adoptive placements from disruption.
The appellants’ argument that s 51A was intended to increase the frequency of contact orders in favour of birth parents was not supported by statutory language or materials. The court found no error of law in the judge’s approach or conclusion. The judge had given appropriate weight to all factors, including the adopters’ proposals for indirect contact and gradual development of relationships.
The court emphasized that while social work practice and research may evolve towards greater openness, such developments affect welfare decisions case-by-case, not the legal test. The court underscored the importance of clear communication at placement order hearings to manage expectations regarding future contact.
Holding and Implications
The appeal is DISMISSED.
The court held that the introduction of ACA 2002, s 51A did not change the established legal principle that the imposition of post-adoption contact orders against the wishes of adopters is extremely unusual and will only occur in exceptional circumstances. The judge’s refusal to order direct contact was supported by a careful and balanced welfare analysis and was not open to challenge.
The decision directly upholds the existing approach prioritizing adopters’ parental responsibility and the stability of adoptive placements. No new legal precedent altering the test for post-adoption contact was established. The judgment encourages ongoing consideration of contact in adoption proceedings, with welfare as the guiding principle, and highlights the role of social work practice in informing contact arrangements on a case-by-case basis.