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BM v AM & Ors [2024] EWFC 383 (B) (26 November 2024) HHJ Marin. Application by birth mother for leave to apply for direct contact with her child, who had been adopted

  1. The judge recited quite a lot of law in his judgement, some of which is included in this article, but it makes the article longer than most soundbites.  However it does , provide a useful guide to the relevant law.
  1. Birth mother [BM] applied for direct contact to her child, now aged 4 who had been adopted, the final hearing was in 2022.  
  1. The evidence referred to BM's lack of insight, neglect, a serious lack of hygiene in the family home, a lack of empathy, a failure to protect another child of the family from sexual abuse and critical deficits in her parenting.  
  1. In February 2023, child [X] was matched with an adoptive mother [AM] and the following month, BM had a last contact session with X.  
  1. In July 2023, AM applied to the court for an adoption order and in September 2023, BM applied to seek permission to oppose the granting of an adoption order.  She also sought contact with X.  
  1. In December 2023, the court heard BM's application to oppose the adoption order.  After a fully contested hearing, BM was refused leave to oppose the adoption application.  That order was not appealed.  BM's application for post-adoption contact was adjourned being premature as no adoption order had yet been made. 
  1. In February 2024 a final adoption order was made in favour of AM. 
  1. BM's post-adoption contact application was listed for a hearing in March 2024.  BM sought direct contact with AM once or twice each year plus letter box contact to be properly set up for her and X's siblings. 
  1. After reciting the background facts, the judge turned to the law.  The starting point was section 1 Adoption and Children Act 2002 [for formatting reasons included at end of this article].
  1. The judge decided BM as X's birth mother is allowed to make the application as she comes within a "person who (but for the child's adoption) would be related to the child by blood…"
  1. The judge moved on to and recited s 51A(2)(a) of The Adoption and Children Act 2002. [see end]. 
  1. He then stated the cases he had been referred to  “Re C (Adoption Contact) [2005] EWCA Civ 1128; Re T [2010] EWCA Civ 1527; Re C (A Child) (Adoption by Foster Carers) [2024] EWFC 87; Re B (A Child) (Post Adoption Contact) [2019] EWCA Civ 29; Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302." And continued “The principle for many years was that a court should not make an order for post- adoption contact with members of the birth family against the wishes of the adopters save in "exceptional circumstances””.
  1. The judge then repeated [lengthily] from Re B [above]:-  

“Lord Justice Baker in Re R and C referred to this principle as having been "firmly applied." Following the introduction of s.51A, the issue was reconsidered by this Court in Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29. In that case, Sir Andrew McFarlane P (in a judgment with which the rest of the Court agreed) summarised the position as follows:              "52. The starting point for any consideration of this issue must be the settled position in law that had been reached by the decision in Re R, which was confirmed by this court in the Oxfordshire case and in Re T. The judgment in Re R was, itself, on all fours, so far as imposing contact on unwilling adopters, with the position described by Lord Ackner in Re C.  53. As stated by Wall LJ in Re R, prior to the introduction of ACA 2002, s 51A, the position in law was, therefore, that 'the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.'  54. Although s 51A has introduced a bespoke statutory regime for the regulation of post-adoption contact following placement for adoption by an adoption agency, there is nothing to be found in the wording of s 51A or of s 51B which indicates any variation in the approach to be taken to the imposition of an order for contact upon adopters who are unwilling to accept it."

The judge went on “In response to submissions about the interpretation and application of s.51A, the President added further guidance: 59. ACA 2002, s 51A has been brought into force at a time when there is research and debate amongst social work and adoption professionals which may be moving towards the concept of greater 'openness' in terms of post-adoption contact arrangements, both between an adopted child and natural parents and, more particularly, between siblings. For the reasons that I have given, the juxtaposition in timing between the new provisions and the wider debate does not indicate that the two are linked. The impact of new research and the debate is likely to be reflected in evidence adduced in court in particular cases. It may also surface in terms of advice and counselling to prospective adopters and birth families when considering what arrangements for contact may be the best in any particular case. But any development or change from previous practice and expectations as to post-adoption contact that may arise from these current initiatives will be a matter that may be reflected in welfare decisions that are made by adopters, or by a court, on a case by case basis. These are matters of 'welfare' and not of 'law'. The law remains, as I have stated it, namely that it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree. …”  

"61. Post-adoption contact is an important issue which should be given full consideration in every case [ACA 2002, s 46(6)]. Whilst there may not have been a change in the law in so far as the imposition of a contact regime against the wishes of prospective adopters is concerned, there is now a joined-up regime contained within the ACA 2002 for the consideration of contact both at the placement for adoption stage and later at the hearing of an adoption application. Further, and in contrast to the situation prior to 2014 where the issue of contact on adoption was determined under s.8 by applying the CA 1989, s.1 welfare provisions, issues under both s.26 and s.51A of the ACA 2002 will be determined by applying the bespoke adoption welfare provisions in ACA 2002, s.1, where the focus is not just upon the welfare of the subject of the application during childhood but throughout their life.

  1. A placement for adoption hearing has the potential for having an important influence upon the development of any subsequent long-term contact arrangements. As required by ACA 2002, s.27(4), the court must consider the issue of contact and any plans for contact before making a placement for adoption order. The court's order may well, therefore, set the tone for future contact, but the court must be plain that, as the law stands, whilst there may be justification in considering some form of direct contact, the ultimate decision as to what contact is to take place is for the adopters and that [it] will be 'extremely unusual' for the court to impose a contrary arrangement against the wishes of adopters.”  
  1. The judge noted that in November 2024, the Public Law Working Group's adoption sub-committee published a report entitled "Recommendations for best practice in respect of adoption.”   
  1. That report recognised that "imposing an order on unwilling adopters is a very serious matter, and that the decision of the Court of Appeal in Re B outlines the limits in which it is appropriate. Adoptive parents will need to be fully involved in decisions about contact with a strong emphasis on the needs of the child.”
  1. Returning to the evidence in this case citing the CG’s analysis “I am not opposed to post adoption contact and it is my view that this needs to be approached on an individual, case by case basis. There are pros and cons to this when it comes to children's overall welfare, …I think that there would be some value to child X in having post adoption contact with BM. Unfortunately, X is too young to understand the situation and I think it would cause her confusion and impact her current stability."
  1. However CG supported letter box contact only at this point in time.  
  1. There was a CAHMS report [CH] stating “security of the relationship between X and AM is the greatest protective factor for this young girl now”.  
  1. The judge reminded himself of section 51(A)(5)(a) which refers to any risk of the application disrupting X's life to the extent that X would be harmed by it.   
  1. The judge reached the conclusion that if he were to give leave for the application to be made, there was an almost guaranteed risk of harm being caused to X and refused leave to make the application, adding “if I had given leave, I would have refused to make an order for direct contact at this point of time. It would be against the wishes of AM which are well founded, based on X's welfare needs and not a whim of her own and should therefore not be ignored or overridden;  X would suffer emotional harm as evidenced by CH's evidence and the fall out from direct contact would more likely than not harm X as well as AM with the potential to damage her placement.”  
  1. The judge accepted AM's assurance that she would facilitate direct contact at a point when the professional advice she received would be that X is emotionally safe and such contact would be appropriate and in X's welfare interest, and directed the local authority to finalise its life story work by the end of January 2025 and to ensure that indirect contact would be formalised in the next four weeks not only between X and BM but also between X and her siblings.