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Young Lawyers - Kate Gomery: Losing touch

Date:5 SEP 2011

Kate GomeryI love watching genealogy shows on television - the likes of “Who Do You Think You Are” and “Long Lost Family”. Both those shows highlight the natural curiosity many people have to understand where they come from. Quite often the central theme of these shows is adoption, more particularly the attempt to trace the birth family after an adoption has taken place. It seems there is often two purposes of such a search, one for an understanding of "roots" and “identity" and the other to find out the reasons why the adoption happened in the first place and whether the family still think of them.

In recent years, thanks to legislation introduced under the Adoption and Children Act 2002 it has become easier for those who have been adopted, once they have reached the age of 18,  to obtain their birth records. But what about maintaining links with the birth family before that? The ACA 2002 also includes fairly wide provisions which allow for the possibility of contact between the birth family and the child post-adoption should the court consider it to be appropriate. 

I am in a case at the moment where post adoption contact is one of the core issues for the court to consider. The barest facts are that there is a child under 5 years old whose birth parents have been (correctly) assessed as being unable to care for him. Wider family members, one of whom is my client, have also been unsuccessfully assessed and the local authority have made an application for the child to be placed for adoption. This application will be approved by the Court. There is, however, a strong attachment between the child and my client and they have had continual contact throughout the course of the public law proceedings.

When the local authority file their final evidence in support of an application for a placement order, they are required to address the issue of post-placement contact with the birth family. Their starting point in this case, as tends to be the norm with younger children, is that there should be indirect contact (ie a letter or a card) once a year, without photographs, between the child and the birth family. Clearly, and understandably, the thinking behind this approach is that it is vital for a child to be settled and secure within their adoptive family without the emotional confusion of an ongoing and visible involvement of the birth family in their life.

The powers available to the court mean that they could order direct contact, and / or more frequent indirect contact, but the reality of the situation is that the court will be unlikely to order anything approaching the level of contact my client would like. Case law has confirmed that the test to be applied by in respect of post-placement / adoption contact is not whether the child should retain an emotional or physical relationship with the birth family, but rather for them to maintain a sense of their identity. The other pertinent issue is that any court would be extremely reluctant to enforce such an order against the adoptive parents.

It is therefore unusual for anything above the minimum indirect contact to be ordered. I understand all the reasons why this should be the case, but I cannot help but wonder whether the courts should be more willing to order contact (involving the adoptive parents) beyond the need for identity where there has been a strong and positive attachment and when it could prevent the heartache of an adopted child wondering if their birth family still think or care about them.

Kate Gomery has recently qualified as a family law solicitor. She works at Heaney Watson in Liverpool where she is exposed to all types of family law work but particularly publicly funded family law cases. Prior to qualification Kate spent several years doing general crime and then serious fraud work.  She trained at Pannone in Manchester.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.