12 | March | 2019 | Researching Reform

A couple asking for post-adoption contact with their daughter have lost their appeal.

Judges in the Court of Appeal concluded that a refusal to accommodate contact by the child’s adoptive parents trumped the toddler’s right to stay in direct contact with her birth family.

The case is believed to be the first of its kind to reach the Court of Appeal since the implementation of s.51A in the Adoption and Children Act 2002 (ACA 2002). The legislation allows for contact with family members and other significant individuals in a child’s life, after adoption.

The judges hearing the case dismissed the challenge after the adopters in the case refused to accommodate meaningful contact between the toddler and her birth parents.

The judgment reinforces the current legal position that post-adoption contact will only be granted in rare cases and usually only where adopters agree to such an arrangement.

The birth parents who have learning difficulties were unable to cope with their daughter’s day-to-day care, and after an assessment the local authority began care proceedings. The local authority then asked the court to grant an adoption order.

Prior to the adoption order being made, the toddler and her birth parents had contact at regular intervals. That contact was reduced, and eventually stopped.

The biological parents applied for post-adoption contact at the same time as the adopters issued their application to adopt the birth parents’ daughter. The application for post-adoption contact was refused. The birth parents then sought permission to appeal the refusal, which they were granted.

The Court of Appeal heard the birth parents’ challenge on 30th January and the judgment published on BAILII is very much worth a read, for an explanation of the law as it stands since the new legislation on post-adoption contact came into force – and for everything that is wrong with the way our family courts work today.

The judgment outlines a discussion on post-adoption contact which looks at whether the current legislation should be interpreted to mean that courts must now lean in favour of post-adoption contact or stick to the old position, which does not create a presumption for or against post-adoption contact but does in most cases give adopters the final say in relation to contact between birth parents and their children.

The judges concluded that the old position was correct when considering post-adoption contact and that “Parliament’s intention in enacting s.51A was aimed at enhancing the position of adopters rather than the contrary.”

The underlying reasons for this position are not at all geared towards the welfare of children in these cases and are clearly designed to protect adoptions while ensuring that adopters are not put off by the inconvenience of having to accommodate post-adoption contact arrangements.

The barrister for the local authority offers the following arguments to bolster this position, which are included in the judgment at paragraph 44:

“Mr. Goodwin supports the maintenance of the current law, as stated in Re R, on the basis that there are sound policy reasons for not imposing direct contact upon unwilling adopters, save in exceptional cases. It is submitted that if adopters are led to believe one thing, but forced to accept another, the pool of potential adopters may shrink.”

And it gets even more ridiculous. The court found that while there was a clear and growing body of work which supported and even insisted upon post-adoption contact, the research was not considered appropriate to the case because navigating that data would require the case to turn upon child welfare based concepts, rather than legal ones.

This really is one of our biggest bug bears at Researching Reform. What on earth is the point of having a family court system that is required by law to act in the best interest of every child that comes before it, if that court cannot respond and react rationally and in real time to the latest scientific evidence in order to ensure those best interests are met?

Stark. Raving. Mad.

The idea that adopters’ rights trump everyone else’s, including the adoptee child’s, is also utterly wrong. Adopters should be viewed as enablers, not dictators, in cases where children have a very real and important need to know their birth parents. That need is rooted in their psychological and emotional development and should not be obstructed unless the birth parents present a real danger to the child.

On that basis, allowing post-adoption contact to be blocked by adoptive parents is clearly a breach of an adoptee child’s human right to know his or her birth family.

We are going to have a cup of tea to cool off.