Post-Adoption Contact: Time for Change

The law is still the same but the mood music is very different.

An open invitation has been issued to lawyers to utilise the present legal framework to make changes to the way we approach post-adoption contact for children.

The President, Sir Andrew McFarlane, gave an important recent speech in May 2024 to the slightly bizarrely named POTATO Conference. POTATO stands for “Parents of Traumatised Adopted Teens Organisation”^[1].

The focus of the speech was the issue of contact with a child’s natural family after adoption and the recognition that the issue of post-adoption contact needs to be developed to adapt adoption more suitably to the modern age. The President’s speech cites a number of sources which he says demonstrate “a consistent authoritative message that a new approach to post-adoption contact is now needed”.

The President outlines that one of the four strategic priorities for Adoption England is that of ‘maintaining relationships’^[2]; a priority focused on modernising contact for adopted people so that they can maintain relationships with the people who were important to them before they were adopted. The President states that the ongoing work demonstrates “that the debate has moved on from ‘whether’ there is a need for a new approach to post adoption contact, to ‘how’ what will be a wholesale change of culture, is to be accomplished in practice. The ambitious target of this work is to establish the default position for future adopters so that the clear expectation will be that of maintaining birth family relationships as the starting point for every child, only to be ruled out where it is unsafe or unhelpful, as opposed to the current default with contact only being ruled in in exceptional circumstances”.

The President sets out that given the Adoption and Children Act welfare exercise requires a focus on the child throughout his life, contact should never be seen as an ‘add on’ but rather it should be centre stage and seen as an integral part of the child’s support package as they move on towards adoption, adolescence and adulthood in the years to come.

The current state of affairs

The President quoted from the ‘interim’ report^[3] by the President’s Public Law Working Group Adoption sub-group with Mrs Justice Frances Judd as its chair (the report published for consultation in September 2023 with the final report due later this year) which outlines:

“First and foremost, we recommend that there needs to be a greater focus on the issue of contact with the birth family as long as it is safe and for adopted adults to have more straightforward access to their records……whilst there has been a great deal of research in recent years as to the potential advantages for adopted children of maintaining some sort of face-to-face contact with birth family, it remains unusual for the care plan for children who are going to be placed for adoption to propose more than indirect or letterbox contact. The House of Lords Children and Families Act 2014 Committee, which reported in December 2022^[4], concluded that the current system of letterbox contact was outdated and warned that the failure to modernise contact threatened to undermine the adoption system”

Professor of Social Work, Elsbeth Neil, University of East Anglia set out in 2018:

“Although letterbox has remained the typical plan over the last 20 years, it is complex and results in a satisfactory and sustained exchange of information only in a minority of cases. The ‘Contact after adoption’ study found the majority of letterbox arrangements were inactive even by middle childhood. Many arrangements had stopped working early on, or had never got off the ground and children were not always made aware that letter contact was happening”.^[5]

Letterbox contact which falters or fades away can create additional loss. It can be difficult to maintain meaningful exchange in the context of something as intensely felt as adoption, when the corresponding parties have not met or haven’t seen each other for a long time.

Digital platforms are being piloted by some adoption agencies; Letterswap and Arkbox. They are a secure online platforms through which adoptive and birth relatives can exchange information including uploading photographs, exchanging letters, utilising short messages as opposed to letters or uploading voice and video messages or other material such as a picture that the child has drawn. The platforms have the benefit of creating a digital archive which can be more convenient and easily accessible and the integrity of which can be protected.

The benefits of post-adoption face to face contact

The President draws on sources which highlight the benefits of post-adoption contact, including:

Post-adoptive birth family contact is not necessarily about the maintenance of relationships with birth family but allowing adopted children to have some continuity that enables them to integrate the past with the present, and the future, which in turn helps them to form a coherent narrative and a more robust sense of self. Essentially, ‘identity’.
Adoptive parents being ‘communicatively open’ and supporting birth family contact where appropriate was valued by adopted people whatever their adoptive experience. Openness, particularly with adoptive parents, seemed vital in strengthening a child’s trust in their adoptive parents.
Meetings with birth family can elicit a range of positive and negative feelings for children; however provided the contact isn’t actively harmful, this allows adoptive parents a chance to understand and manage their child’s adoption-related emotion.
Older children might feel better able to commit to their adoption if it doesn’t mean the total loss of the birth family and for others it can help children feel less worried about family members.
Staying in touch with grandparents and siblings generally tends to be less emotionally complex than contact with parents and it is often lasting and rewarding contact.
Unlike the babies of yesteryear, today’s adoptees have normally been removed because they have experienced harm and in the digital age it is all too easy for adoptees to attempt, covertly, to make contact with birth relatives in an unmanaged way and adoptees do.
Later disruption in adoption may be ameliorated or avoided by increased support for maintaining family relationships at an earlier stage.

Although not specifically alluded to in this particular speech of the President, other important issues around post-adoptive direct contact are:

The issue of ‘loss’ for adoptive children is not confined to or does not necessarily with younger children even ‘bite’ at the time of the making of Placement or Adoption orders. A sense of loss of a birth family can occur or continue for adoptees throughout their lives. Post-adoptive contact can lessen feelings of loss and rejection.

Adopters can only answer questions from their adoptive children if they know the answers. What happened? What do my birth family look like? Where are my brothers and sisters? If adopters don’t know the answers, post-adoptive contact can open up sources of information.
Adoptive parents can feel anxious and defensive about the birth family where there are no direct links.
Open adoption can create a more open relationship between adopter and child. By participation in direct contact, adoptive parents experience the child’s emotions around their birth family alongside them and can better support them with those feelings as a result.
Considerations around post-adoptive contact should not be confined to birth parents but be focused on those whom meaningful to the child (grandparents, siblings, non-biological connected persons, previous carers including foster carers).
Face to face contact is more enduring and more meaningful than letterbox contact.
Fears that a child will not feel part of the adoptive family/it will interfere with the attachment if there is ongoing face to face contact has not been borne out in the research. Other factors seem to drive that (the degree of adversity suffered/level of need exhibited by a child).
It is important to distinguish between contact which is difficult and contact which is harmful. Contact can be painful, difficult or create nervousness in short term but is beneficial in the long term. Difficult might be if a child finds it upsetting or it brings back feelings of loss or difficult memories; but that can provide an opportunity to for a child talk about and experience those feelings. Harmful is where a child does not feel emotionally safe and a child is disturbed or distressed for a prolonged period in anticipation of or after contact.
Children who are coping better with life are likely to cope better with contact.
Birth parents need to be able to promote the role of their child as a member of the adoptive family. Parents might not have the requisite characteristics required at the time of contested proceedings but after support or when the dust settled there may be improvement.

An interesting case study highlighted in a recent lecture by Professor Elsbeth Neil acts to emphasis some of the points. It involved a mother with mental health issues. An adopted child having direct contact with her birth mother reported “It’s nice to see her but it can be quite awkward …[the good things are] knowing who she is and what she was like rather than thinking she could be like this, it’s like you can have this whole little fantasy world of how you think, and once you see her, you know it’s not going to happen.” Seeing grandmother: “We used to go out somewhere and do something with birth nan. That felt like we were a real family and generally we’d go somewhere quite normal. …She was like a proper nan. …I’d go and give her a hug. I really liked seeing her.” Not having any contact with birth father: “He’s always been the one that I haven’t been allowed to see, it makes you want to know more and see them more.“. The takeaway was that although contact with mother was quite awkward, it had value because the child received a realistic picture of her mother and helped her understand why she was not able to care for her. It was not necessarily a close or comfortable relationship but it was still valuable. Contact with grandmother was seen as valuable, perhaps less surprising given that the research overall indicates that contact with siblings or grandparents is more likely to endure and is more likely to be positive.

Where do we go from here?

The President makes clear that his keynote speech is of course not a court judgment, Practice Direction or other guidance from the President of the Family Division; however he offers his “thoughts as to the way forward for the courts”.

He outlines that the central impediment to change has been the weight that has been given to the views of the child’s adopters on the issue of future contact and that “the court should not impose contact upon an unwilling adopter”^[6]

The President provides some argument against the understandable desire of the court to uphold the autonomy of the future unidentified prospective adopter. It would appear that the President is concerned that the absence of any order or guidance in relation to future contact essentially foments a ‘chicken and egg’ or ‘tail wagging the dog’ situation. The President makes some compelling arguments, which are surely geared towards encouraging the court to take a more proactive approach in relation to the issue of post-adoption contact:

It is pointed out that by the time a court is considering the placement of a child for adoption, the court will have a wealth of information about the child’s future welfare needs and where “those needs have been evaluated through the prism of the modern approach to post-adoption contact and the court concludes it will be in in the interests of that child to maintain a relationship with a member, or members, of their birth family surely in accordance with its duty under ACA 2002, s.1, the court has a duty to say so in its order”.
The President highlights that during the matching process, prospective adopters will take on board each aspects of the child’s needs when deciding whether they feel able to offer them a home. “Where a court has determined that a child does need to maintain a relationship with their family, why is that to be seen as being in a totally different category of need to say a specific health requirement for an asthmatic child or support with reading for one who is dyslexic”.
The President also highlights an important and perhaps previously overlooked reality “Separately, and with genuine respect for all those who adopt children from care, I would question the ability of most adopters to make an informed decision about future contact either at the time that matching takes place or, even, at the later stage of the adoption itself. No matter how thorough the briefing that they may have had from social services about their child may be, and no matter how good their training may have been, are they really in a better position, at that point, to determine issues of contact than the social workers or the judge?”

The President concludes by indicating that as part of the culture change, it is likely that the almost absolute autonomy currently afforded by the court to the adopters in matters of contact will have to be reviewed.

The President suggests:

The likely template for contact arrangements post adoption should be set at Placement Order stage. The President emphasises that the making of a s.26 contact order already requires the court to look at the child’s life-long welfare. He suggest that it would be good practice for a s.26 contact order to contain a recital as to the court’s view on contact arrangements post-adoption.
Given the growing move towards greater family contact, it is to be expected that, where social work evidence is lacking in this important area of a case, the court will ask for an appraisal of the options set against the background of the modern approach and if necessary, adjourn the case to obtain one.
The court should look more widely than the child’s parents, including siblings and other relations such as grandparents, aunts, uncles who may safely meet with a child even where it is unsafe for parents to do so.
The President states that when looking at a final adoption hearing where the power to make contact orders under s.51A ACA 2002 arises he would like to “stimulate discussion about quite radical change”. Essentially the President sets out that this may be the wrong point to fix very specific arrangements but talks about there being real value in “a formal review of contact with the birth family some two or more years later” given that, by that time, a child will be more settled in their adoptive placement, adoptive parents are likely to feel more confident and secure in their role, the child may be older and better able to express views about the contact and birth family members may have reached greater acceptance in relation to the adoption. The President speculates whether s.51A(2) could be used to achieve this bearing in mind it provides the court with jurisdiction to make a contact order “when making the adoption order or at any time thereafter”.

Is the current legal framework a barrier?

Yes and no.

s.26(2) Adoption and Children 2002. Whilst an agency is authorised to place for adoption or the child is placed for adoption, the court can under this section make an order for the child to visit or stay with or have contact with a person named in the order. Pursuant to s.26(4) the court may on its own initiative make an order.

The court has the power to make orders; including in the absence of an application following for example exploration of the issue in cross-examination during a final hearing.

s.27(4) Adoption and Children Act 2002 - before making a Placement Order, the court must consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child and must invite the parties to the proceedings to comment on those arrangements.
s.27(5) Adoption and Children Act 2002. An order under s.26 may provide for contact on any conditions the court considers appropriate.

The provision delivers the court a wide discretion. The statutory explanatory notes to the Act simply say “the court may impose any conditions on a contact order made under section 26 as it thinks fit”. There is no case law about the use of these conditions. There is the potential for the court to exercise significant creativity in the utilisation of this provision. In light of the President’s indications, this may be a useful “way in”. For example, a court could make an order for contact that it considered to be in the child’s best interests with a condition that the contact will not continue as ordered unless the adopters are in agreement with its continuation at the point of placement. This would certainly be a way forward that provided guidance to adopters about what the court considered to be in a child’s best interests, without fettering their autonomy.

s.46(6) Adoption and Children Act 2002. Before making an adoption order the court must consider whether there should be arrangements for allowing any person contact with the child; must consider any existing or proposed arrangements and obtain any views of the parties.
s.51A(2) When making the adoption order or at any time afterwards, the court may make an order under this section [allowing or prohibiting contact].

This potentially allows for a contact order to be made when the passage of time might mean improved circumstances for adopters, adopted children and birth family and as the President has indicated, this provision might allow for a review mechanism to be considered.

s.51B(1)(a) An order under section 51A may contain directions about how it is to be carried into effect and s.52B(1)(b) may be made subject to any conditions the court thinks appropriate.

As outlined above in relation to s.27(5), this similarly allows the court a wide discretion.

Therefore the statutory framework appears to be a state which will allow for forward movement in relation to post-adoption birth family contact.

The case law however has a different tone.

The Public Law Working Group Adoption Sub-Group has put together an table of post-adoption contact case law^[7]. A reading of pages 33-41 in particular provides an unsurpassable summary of the recent important case law in this area including in relation to the Court of Appeal decision of: Re B (A child) (Post Adoption Contact)[2019] 2 FLR 117 (The President forming part of that Court of Appeal bench).

Interestingly in that case and in the summary provided in the working group, the submissions made on behalf of the Guardian are highlighted. “In submissions the guardian advanced the following matters as good practice : '(a) adoption agencies to ensure that all prospective adopters and all adoption social workers fully understand the developing research when undergoing training and approval; (b) in every case where post adoptive contact is a realistic option, the local authority should file, during the placement proceedings, the best information available as to the pool of “open” adopters nationally and to ensure this is as specific to the subject children as possible; (c) the social work and children's guardian to consider the significance of the research studies in every case; (d) the court to provide full reasons on any s 26 contact application; (e) sibling contact to be considered as an entirely separate exercise from parental contact; (f) an open and frank dialogue between social workers, prospective adopters and birth parents and, if sufficiently mature, siblings about the child's needs, possibly with a face-to-face meeting as in this case.' The court stated “Although, for my part, I would not challenge the soundness of each of the suggested requirements that Mr Goodwin has helpfully set out in his skeleton argument, and which are listed at para [50] above, these are very largely matters of social work practice, rather than law; I do not consider that it is appropriate for this court to raise any of the listed matters to the status of being something which the Court of Appeal has stated should now be required in every case. That said, it must be a given that any social worker, children's guardian or expert who is required to advise the court on the issue of contact, will ensure that they are fully aware of any current research and its potential impact upon the welfare issues in each particular case. Equally, it is already a requirement that courts should give adequate and clear reasons for any orders that are made following contested proceedings.”

Practical Ways of advancing the case for post-adoption contact

A shift in culture and understanding is likely to take time; that means the arguments in favour of post-adoption contact need to be framed realistically and bearing in mind the likely tendency for judicial caution.

Realism means identifying the cases where parents are likely to demonstrate characteristics which are compatible with post-adoptive contact: ability to support the placement of the child elsewhere, ability to commit to contact, positive relationship between parent and child in contact, child who does not have a high level of emotional or behavioural need.

At an early stage, identify the key and important individuals to the children; those with pre-existing relationships or those who have been providing support to the child including siblings and non-biological individuals. Perhaps seek for this information to be recorded in the order so that minds are focussed on the need for these people to be included in some sort of contact arrangements both in the interim and at final order stage.

When directions are made for final evidence, in the appropriate case, flag up that you require the social work and Guardian’s evidence to provide specific analysis in relation to the issue of post-adoption contact in relation to certain named individuals (whether that is parent, sibling or other key individual). Seek assessment from the key professionals about the identified person’s ability to maintain contact and support a placement.

At a final hearing, acquaint yourself with the body of research and cross-examine accordingly if the consideration of post-adoption contact is considered deficient/tick-box.

In the appropriate case, at Placement Order stage, suggest the use of an order with conditions to set a template of what form of contact the court considers is in the child’s best interests, with whom and invite the court to set that up as part of a contact order with a condition that it will not take place without the consent of the adopters at matching stage/or without further specific review at matching stage. The court’s order does not have to fully bind an adopter but it can be made to operate as a default and a strong indicator in relation to the court’s view about what meets the children’s needs.

In the appropriate case, at Adoption Order stage, in the event that direct contact is not possible at that time, suggest to the Judge use of a review mechanism to bring back the issue of contact once the child is settled in placement and the adopters are better able to express informed views.

In the case of indirect contact, promote the use and investigation of digital platforms for ‘letterbox’ contact.

Additional links to research resources

University of East Anglia longitudinal Contact after adoption study (funded by Nuffield Foundation):

https://www.uea.ac.uk/groups-and-centres/centre-for-research-on-children-and-families/contact-after-adoption

Adoption Research Initiative: Supporting Direct Contact’ and ‘Helping Birth Families’ studies –

http://www.adoptionresearchinitiative.org.uk/study5.html

Beth Neil – UEA page and publications:

https://research-portal.uea.ac.uk/en/persons/beth-neil/publications/

Family Law Article:Rethinking adoption and birth family contact: is there a role for the law?

https://www.familylaw.co.uk/news_and_comment/rethinking-adoption-and-birth-family-contact-is-there-a-role-for-the-law

Adoption England/UEA open access webinar series:

https://www.eventbrite.com/cc/culture-change-series-adoption-england-uea-2820929?utm-campaign=social&utm-content=creatorshare&utm-medium=discovery&utm-term=odclsxcollection&utm-source=cp&aff=escb

Recordings of UEA/Adoption England webinars

https://www.youtube.com/playlist?list=PLTWMvIIOPdWDKgydd5y_cz8xwhWPuEH8z

^[1] https://www.judiciary.uk/wp-content/uploads/2024/05/Keynote-Address-Sir-Andrew-McFarlane-Potato-Conference-2024.pdf

^[2] https://adoptionengland.co.uk/professionals/maintaining-relationships

^[3]https://www.judiciary.uk/guidance-and-resources/public-law-working-group-interim-report-recommendations-for-best-practice-in-respect-of-adoption/

^[4] https://committees.parliament.uk/committee/581/children-and-families-act-2014-committee/news/174947/children-and-families-act-2014-an-example-of-inadequate-implementation/

^[5] https://ueaeprints.uea.ac.uk/id/eprint/68360/1/Fam_Law_2018_Sep_1178.pdf

^[6] Re R (Adoption: Contact) [2005] EWCA Civ 1128 ; and Re B (Post-Adoption Contact) [2019] EWCA Civ 29.

^[7] https://www.judiciary.uk/wp-content/uploads/2023/09/Chapter-1-Appendix-A-Table-of-post-adoption-case-law.pdf