In April 2014, a provision was introduced into the Adoption and Children Act 2002 enabling applications to be made for contact with children after they had been adopted.  Although this law has been in force for several years now, it was only in the case of Re B (a Child: Post Adoption Contact) 2019 EWCA Civ 29 that the Court of Appeal came to consider this provision.

The background was that the birth parents were both disabled, the mother particularly so.  There were such concerns about whether they could appropriately look after their baby that care proceedings were commenced and, after detailed assessment, the Court concluded that they were not able to look after the child. A care order was made and the baby was placed with prospective adopters. As is so often the case, the local authority did not support continued direct contact between the child and her parents. To paraphrase, the judge was concerned that if he were to make an order for direct contact this could lead to the breakdown of this placement or difficulty in finding any further placement for the baby.   Also contact could lead to a future breakdown in the placement with the adopters.

The child having been placed with the prospective adopters, in due course they applied to adopt. The parents did not actively oppose the making of an adoption order, but did seek a post adoption contact order. The trial judge fully analysed the relevant issues but refused to make such an order having regard to the welfare need of the child.  The parents appealed to the Court of Appeal where the matter was considered by the President of the Family Division.

In his judgment, he referred to the established position and cited Wall LJ set out in a 2005 judgment that the “imposition on prospective adopters of orders for contact with which they are not in agreement is extremely and remains extremely unusual.”

In the present case, the court had to consider whether the introduction of the provision enabling application for contact to be made post adoption had changed the law.  Should there be a new approach to this issue?

However, the President was clear that there was nothing to suggest there should be any variation in the approach set out by Lord Justice Wall. It was misguided to assume that the new provisions in the Act were intended to increase the number of adoption cases where orders were made for direct contact with birth parents.  There were no unusual circumstances which would justify the court in overriding the views of the adopters.

Despite the introduction of new statutory provisions, “the ultimate decision as to what contact is to take place is for the adopters and it will be “extremely unusual” for the Court to impose a contrary arrangement against the wishes of the adopters.”

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