S, Re (Placement Order Contact)

Factual and Procedural Background

This appeal arises from a decision by HHJ Hayes KC concerning care proceedings involving two brothers, aged 8 and 2 years, hereafter referred to as the older child and the younger child. Both children were subject to care orders, with only the younger child subject to a placement for adoption order. The proceedings began after the younger child was hospitalised with head injuries and a rib fracture. The court made serious findings against both parents for causing harm and failing to protect the children, including dishonesty and concealment of contact between the parents post-separation.

The older child was initially placed with paternal grandparents but later moved to foster care following the findings. The younger child remained with foster carers throughout. The younger child has a mild developmental delay linked to the head injury. The local authority sought a care order for both children and a placement for adoption order for the younger child. The judge made these orders but declined to make a sibling contact order under the Adoption and Children Act 2002 (ACA 2002), section 26(2)(b), due to concerns that such an order would limit the pool of prospective adopters.

The parents supported a sibling contact order, but the local authority and guardian opposed it. Professional evidence recommended ongoing sibling contact post-adoption, but the judge accepted that a formal court order might deter adopters. The younger child's details were placed on the national adoption database with no matches despite views from multiple families.

Legal Issues Presented

1. Whether the court should make an order under ACA 2002, s 26(2)(b) for sibling contact at the placement for adoption stage.
2. The appropriate approach to sibling contact in adoption proceedings, balancing the child's lifelong welfare against the potential impact on finding adoptive placements.
3. The weight to be given to the risk that a contact order might deter prospective adopters.
4. The extent of the court's discretion in making or declining a contact order under ACA 2002, s 26, including the application of the 'no order' principle under ACA 2002, s 1(6).

Arguments of the Parties

Appellant's Arguments

• The decision was contrary to unanimous professional evidence that direct sibling contact would be best post-adoption.
• The judge failed to properly balance the benefits of contact against the potential reluctance of prospective adopters.
• Leaving contact decisions to professionals and adopters would disadvantage the children, as contact arrangements rarely succeed without court orders.
• The judge failed to consider the ability to vary or discharge the contact order.
• The judge gave insufficient weight to the proportionality of interference with family life and the necessity of a s 26 order to protect it.
• The judge erred by treating contact as a welfare aspiration opposed to adoption as an imperative, rather than seeking the adoptive placement best serving the child's long-term welfare.

Respondent Local Authority's Arguments

• The judge was in a privileged position after full hearings and his welfare decision should be respected unless outside the bounds of discretion.
• While adoption was supported, the unanimous professional view was that a s 26 contact order should not be made as it could hinder finding an adoptive placement.
• The case was not appropriate for signaling a shift in approach to post-adoption contact given the children's circumstances.
• Contact was desirable but not essential and should not be pursued at the expense of adoption.
• The risk of deterring adopters due to a contact order outweighed the benefits of formalising contact by order.

Respondent Guardian's Arguments

• The judge was within discretion to decline the contact order despite professional support for some contact.
• The small pool of adopters for a child with developmental difficulties should not be further reduced by a contact order.
• The suggestion that an order could be varied or discharged later was flawed because any damage to family finding would have occurred by then.
• The judge considered the pros and cons of contact and adoption appropriately in his decision.

Interveners' Arguments (Association of Lawyers for Children and CoramBAAF)

• The court's power under ACA 2002, s 26 to make contact orders has been under-utilised, with default opposition based on concerns about deterring adopters.
• This opposition reflects a wider resistance to post-adoption contact in family courts, contrary to research and good practice recommendations.
• Current statutory guidance is outdated and does not reflect recent research showing benefits of post-adoption contact.
• Research indicates that the assumption that contact orders reduce the adopter pool is not supported.
• Contact arrangements should be given priority in matching adopters and be flexible to reflect changing needs.
• There is confusion in lower courts about applying the decision in Re R (Children), with some courts imposing a uniform contact frequency rather than bespoke arrangements.
• CoramBAAF supports an open adoption culture with flexible contact arrangements and has revised reporting templates to emphasize 'staying in touch'.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the statutory framework under ACA 2002, particularly sections 1, 21, 25, 26, and 27, focusing on the paramount consideration of the child's lifelong welfare and the court's discretion to make or decline contact orders. It acknowledged the serious findings against the parents and the younger child's developmental delay.

The judge below found that a s 26 contact order risked deterring prospective adopters due to the requirement for direct sibling contact, especially given the younger child's uncertain prognosis and the older child's ongoing contact with the birth parents. The court accepted that this risk was a relevant welfare factor and that the unanimous professional view was that contact should be promoted but not necessarily by court order.

The judge applied the 'no order' principle under ACA 2002, s 1(6), concluding that making a s 26 order would not be better for the younger child than not making one, as it could limit or thwart adoption prospects. The judge's welfare analysis focused on balancing the importance of sibling contact against the overriding need to secure a permanent adoptive placement.

On appeal, it was recognized that while the judge did not explicitly weigh all welfare factors in the judgment's structure, his decision was within the scope of judicial discretion given the evidence and the consensus on contact plans. The court emphasized that each case must be decided on its facts and that contact orders should be bespoke and flexible, avoiding rigid prescriptions such as a fixed number of visits.

The court also noted concerns about the conflation of 'contact' generally on adoption databases, which may deter adopters unnecessarily when sibling contact alone is required. It endorsed the view that courts should set a 'road map' for contact, potentially dividing the contact period into phases and allowing for variation and flexibility.

Holding and Implications

The court DISMISSED the appeal, upholding the decision of HHJ Hayes KC to make the placement for adoption order for the younger child but to decline to make a s 26 contact order for sibling contact.

The direct effect is that the younger child will be placed for adoption without a formal court order mandating sibling contact, with contact arrangements to be managed by the local authority and adopters. The decision confirms the application of the 'no order' principle under ACA 2002, s 1(6), requiring that contact orders only be made if better for the child than not making them.

No new precedent was set, but the judgment clarifies the balancing exercise courts must undertake regarding sibling contact at the placement for adoption stage, emphasizing a bespoke and flexible approach and the importance of considering the impact of contact orders on family finding.