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Hayley Trim's Analysis: Which comes first: Contact or Adoption?

Date:17 JAN 2012

Hayley Trim, Family Law PSLPost adoption contact has hit the news recently with the concern that birth families are tracking down adopted children via social media. There is an insightful post on the subject here.

When it comes to the court's approach to what contact a birth family should have with an adopted child, as this post points out, "it seems that the best we [when acting for a a birth parent] can get is a vague expression of a ‘hope' that an adoptive family can be found who would be ‘open' to direct contact but in the majority of cases the industry standard is letter box contact once or twice a year."

There is undoubtedly tension between the importance of a stable adoptive placement where the adopters feel secure in their parental role and that of a child knowing his origins and being confident in his identity. The court is obliged to consider contact arrangements and can make an order of its own initiative under s26 Adoption and Children Act 2002. But must the issue of contact be resolved before a final order is made? This was the focus of two recent decisions of the Court of Appeal - the cases were apparently similar cases but they had opposite outcomes.

In the first case Re H (Children) [2011] EWCA Civ 1218, the judge had made final care orders approving care plans for adoption for children aged 6 and 8, but with a bridging foster placement during which there would be an assessment as to what contact with the child's birth family was desirable. The Court of Appeal overturned the orders holding that the judge should not have made final orders since the issue of whether adoption could succeed was inextricably tied up with the issue of contact. Interim orders were substituted and assessments directed.

In the second case Re D O'H (Children) [2011] EWCA Civ 1343, the judge made a final care order with the 3 year old child being adopted, and adjourned the placement application to await the outcome of a further assessment of the child's attachment to an older sibling and what if any contact should be maintained. The Court of Appeal upheld that decision saying that the judge was entitled to find that adoption was the best outcome for the child and that contact with the older sibling should be decided within the context of adoption.

The children in Re H were older and so the concerns about adoption succeeding were greater. The children had been living with the maternal grandparents under and interim care order, but they could not provide permanent accommodation. It was considered that the delay of an assessment was better than not having the full picture before a final order was made determining whether there should be long term foster care or adoption which would irrevocably sever ties with the birth family. The judge had not had enough information as to the likely success of an adoptive placement which depended on acceptance by the birth family and was tied up with the issue of contact. Re D O'H was a clearer case for adoption given the family circumstances and age of the child. It was recognised that irrespective of what contact may be appropriate, the priority was for adoption. The assessment was important in terms of identifying an appropriate placement for the younger child and settling the sort of contact that could take place without disrupting it, but it would not impact on the decision that it was ultimately in the child's best interests to be adopted.

So a closer look at the facts shows that despite the different outcomes, the cases are not inconsistent in principle. It is not possible to make sweeping statements as to whether contact must be determined before final orders are made. As with every children case, the role of contact in deciding whether to make adoption orders is dependent on the detailed facts and the welfare of the child in each case.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

Contact Hayley on Twitter: @HayleyTrim

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