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The Significance of Contact Post-Adoption in Re T and R (Refusal of Placement Order) [2021] EWCA Civ 71
This appeal was brought by the LA and Children’s Guardian in respect of two children aged 3 and 2, who were the youngest of six children of the Mother and Father, the oldest being only 7 years old.
The family were part of the traveller community, and it was a central feature of the parents’ cases that the sibling relationships should preclude the younger two children from being placed for adoption.
Care proceedings were initially issued in 2018 following concerns of neglect in respect of one of the older children, C, and that C had sustained fractures. A fact-finding hearing took place before HHJ Richards in September 2019, where the Judge held that the fractures had been sustained by one or other of the parents pulling or lifting her by the arms with sufficient force to cause the fractures.
The final hearing took place in July 2020 and the LA sought care orders for all six children, the care plans for the oldest 4 being long-term foster care and for the youngest two, adoption. The Judge approved the care plans for the oldest four children but invited the LA to change their care plans for T and R to ones of long-term foster care, the Judge not approving the care plans of placement for adoption.
The Decision of HHJ Richards
In evidence from Dr Hunnisett at the final hearing, she changed her position that the children should remain in long-term foster care together having heard arguments from the Social Worker and Guardian in support of adoption for the youngest two. However, it was noted by her that if the children did not maintain contact over the course of their minority, it would risk “damaging the whole psychological development of this whole sibling group”.
The judgment of HHJ Richards concluded at §128 that:
“For these two children to retain their culture, it would be a difficult task for any adopter wishing to claim the children as their own in circumstances where the very culture the children would be exposed to in contact would be one in which adoption is anathema.”
For those reasons, the Judge felt that the advantages of adoption, namely permanence of the children, were outweighed by the risks pertaining to sibling contact and the need to ensure their culture and heritage was not lost, which could only be maintained by parental contact.
The Judge additionally expressed concern at §130 that:
“the approach to the placement of the children by way of adoption has been driven by a combination of their age and that they are adoptable. For my part, it has overlooked – to some considerable degree – the loss which I have identified and which would come with such a course and an acceptance of the powerful 'usual practice' without a true counterbalance of what are also powerful factors in this case against the making of a placement order leading to adoption. It is not right in my judgement for these two young children. There is no such thing as the 'normal order' because of age and apparent ‘adoptability’”.
The Decision on Appeal
Baker LJ noted that HHJ Richards was presented with a consensus amongst all the professional witnesses that the best option for T and R was that they should be placed for adoption, but formed a different conclusion. In dismissing the appeal, Baker LJ held at §32 that HHJ Richards “was entitled to reach that conclusion and his exposition of his reasons was clear and convincing”.
Significance
The consideration of post-adoption contact in this case was one of extreme significance. Although post-adoption contact orders can be made, it was noted in the appeal judgment that the law remains as set out by Sir Andrew McFarlane P in B (A Child (Post Adoption Contact) [2019] EWCA Civ 29, namely that it will be an extremely unusual case where a court would make an order stipulating a contact arrangements to which adopters did not agree.
In this case, where the sibling and parental relationships were of such importance to the culture and identity of the sibling group as a whole, the court did not consider this was one such case where adoption was the correct outcome, even with the possibility of a contact order being made.
