Appeal judges reiterate that it is for the court – not local authorities or any other person – to determine in adoption cases whether there should be ongoing contact with birth family

The Court of Appeal has allowed a local authority’s appeal against a judge’s refusal to make placement orders in respect of two young children.

In the Family Court His Honour Judge Wicks had concluded that adoption was “inconsistent” with the children’s need for continuing contact with members of their birth family, in particular their two elder half-siblings.

In R and C (Adoption or Fostering), Re [2024] EWCA Civ 1302, Lord Justice Baker concluded that the judge’s reasoning failed to provide a “sufficiently robust and rigorous analysis” of the advantages and disadvantages of the realistic options for the children, and that the judge overlooked the fact that it was his duty to “set the template for contact going forward”.

The Court of Appeal judge observed that the appeal fell to be decided at a time where there has been “renewed discussion” about open adoption.

Baker LJ noted: “[The appeal] provides an opportunity to reiterate the clear principle that, at the stage of making an order under s.21 of the Adoption and Children Act 2002 authorising a local authority to place a child for adoption, it is the court, rather than the local authority or any other person, which has the responsibility for determining whether there should be ongoing contact between the child and the birth family.”

In his judgment Lord Justice Baker explained why the concept of open adoption had come to the fore in recent years.

“Not everyone with personal experience of adoption is comfortable with this development,” he said. “But the preponderance of opinion amongst those working and researching in the field is that, in many cases, it is in the interests of adopted children to continue to have some direct contact with members of their birth family.”

The Court of Appeal judge went on to summarise the statutory provisions and case law on adoption and applications for placement orders.

Lord Justice Baker also said that although developments in adoption policy that are not yet reflected in legislative change did not, in his view, call for detailed analysis on this appeal, it was right to record that the appeal fell for determination at a time when there was increased public discussion about the future of adoption in general and of open adoption in particular.

He added that these issues were addressed by the President of the Family Division in two recent lectures – “Adapting Adoption to the Modern World” (the Mayflower lecture in Plymouth, 9 November 2023) and “Adapting Adoption to the Modern World – Part Two” (the POTATO conference lecture, 17 May 2024, reported at July [2024] Fam Law 797).

Lord Justice Baker said: “As [the President] stressed in the second lecture, neither lecture was a court judgment, Practice Direction, or Presidential Guidance, but rather an expression of his ‘preliminary thoughts’ on the question: ‘How will this cultural shift towards greater openness impact upon the work of the Family Court and how may the court support the looked-for change in the default setting so that maintaining relationships with a child’s birth family is the starting point, rather than the exception?’

Baker LJ highighted that in the course of his second lecture, the President took the opportunity to underline some features of the existing law and also make suggestions about how the law might develop in future.

He noted that Sir Andrew McFarlane had observed:

“Orders for contact made under ACA 2002, s 26 when making a placement for adoption order set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important ‘known known’ about the child to be taken on board by any potential adopters with whom placement may be considered.”

The Family President continued:

“…the likely template for contact arrangements post adoption should be set at the placement order stage. This is not a change in the current approach. A court making a s.26 contact order, in keeping with the duty under s.1 and its lifelong focus, should have regard not only to the short-term contact arrangements required in the pre-adoption stage, but also in setting the course for the maintenance of family relations over the longer term if that is in the child’s best interests. Also, there is nothing wrong, and I would suggest it should be good practice, for a s.26 contact order to contain a recital as to the court’s view on contact arrangements post-adoption.”

Lord Justice Baker said: “In these observations, the President was doing no more than reiterating the approach to s.26 mandated by case law. He went on to express some preliminary thoughts about how courts might in future exercise their powers to make contact orders at the adoption application stage. As he acknowledged, in those remarks he was considering steps which go beyond the current case law. It is likely that this Court will consider these matters again at some point, but they do not arise on this appeal. We are concerned only with the interpretation of s.26.”

The case of R and C (Adoption or Fostering), Re concerned four children aged between six and two.

There are three fathers, of whom only one, Y’s father, was involved in the proceedings.

The first care proceedings involving the family were started in September 2021, after the three elder children were removed from the mother by the police after she had left them in the care of a third party whose children were in care.

Interim care orders were made in respect of the three children and in respect of the fourth child, C, shortly after he was born in 2022.

The proceedings led to a final hearing before HH Judge Wicks in April 2023, at which supervision orders were made in respect of all four children on the basis of a transition plan for the children to be returned to the mother’s care over a period of 12 weeks.

Baker LJ noted: “Unfortunately, over the next few weeks, the mother continued to behave in a way which compromised the children’s safety by failing to provide sufficient parental supervision and repeatedly exposing them to dangerous adults, and drug misuse.”

In September 2023, after the children had been in the mother’s care for 11 weeks, the local authority started further care proceedings.

Further interim care orders were made and the children placed in foster care again, with the two elder children returning to their previous carers and the younger two placed together in a new placement.

In the course of the second proceedings, a sibling assessment was carried out by the allocated social worker. He found that:

“each child has a clear sense of being part of a sibling group of four and, except for C they have shared experiences of living within a home in which they have been subjected to their parents’ unhealthy relationships with each other (and their peers) and the associated harmful effects of this”.

The social worker concluded that the three youngest children should be placed together for adoption, whilst the eldest should remain with his current foster-carer long-term.

Initially, the local authority accepted the proposal that the three younger children be placed for adoption, but subsequently concluded that the second oldest child should be placed in long-term foster care with the eldest.

The final hearing in the second care proceedings took place before HHJ Wicks in May this year.

The local authority, supported by the children’s guardian, proposed that the two elder children remain in long-term foster care in a new placement and that the two younger children be placed together for adoption.

The care plan provided for “continued direct contact” between the four siblings at a minimum of six visits a year; for the elder children to have direct contact with their mother eight times a year; and for direct contact between the youngest two children and their mother to cease after they were placed for adoption.

Baker LJ noted that in a statement in support of the plan, the allocated social worker JH described the need for ongoing sibling contact six times a year as “paramount”.

At the conclusion of the hearing, HH Judge Wicks rejected the mother’s proposal for the return of the children and made care orders in respect of each child, but dismissed the local authority’s application for placement orders, and directed that revised care plans for the youngest two children be submitted on the basis that they be placed in long-term foster care.

On adoption, the Family Court judge made the following observation:

“Permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family. This can sometimes be ameliorated by continued contact between the birth family and the adopted child, but that is at the discretion of the adopters. In this case, the local authority has committed itself to a search only for adopters willing to promote direct sibling contact. That commitment is a tacit recognition of the importance of the sibling relationship in this case, but sibling contact cannot be guaranteed. Even adopters who are open to it initially may not continue to promote it after the making of an adoption order.”

The local authority subsequently filed a notice of appeal against the refusal to make placement orders.

Two grounds of appeal were put forward:

1. The judge was wrong to conclude that the sibling relationship could not be preserved if he approved an adoptive care plan.
2. The judge was wrong to refuse placement orders on the basis that the mother “could not be completely ruled out”.

Baker LJ noted: “Under ground 1, it was argued that the judge constructed a dichotomy comprised of, on one hand, the advantage of permanency afforded by adoption and, on the other, the lifelong benefits of preserving a sibling relationship. The judge approached his task by assuming that there was no middle ground.”

It was acknowledged by counsel for the local authority that, under the current law, save for extremely unusual circumstances, no order will be made to compel adopters to accept contact arrangements with which they do not agree.

“It was submitted, however, that there is a critical difference between, on one hand, imposing on adopters a contact regime that they had never bargained for in respect of a child previously placed with them for adoption and, on the other, crafting a contact regime at the placement order stage so that the eventual adopter accepts the adoptive placement with their eyes wide open to the court-directed imperative for long-term sibling contact”, said Baker LJ.

Under ground 2, it was submitted that HH Judge Wicks’ observation that the mother “could not be completely ruled out” was inconsistent with his findings that the mother was “simply unable to put into effect what she has learned from all the support work” and that “there are no other options available in terms of safeguards that could be put in place to minimise the risks of future harm to the children”.

Discussing the appeal, Baker LJ said: “This Court must always proceed with caution when invited to interfere with a judge’s evaluation of the evidence after a hearing in which he and he alone has had the opportunity, in the well-known words of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014], to “have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.””

He added: “In this case, however, I have no hesitation in concluding that the basis of the judge’s decision to refuse the placement order was wrong for the reasons set out in the appellant’s submissions in support of ground 1.”

Baker LJ observed that a key element in the judge’s reasoning was his assertion that “permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family”.

He said: “As demonstrated by the summary of the case law set out above, that may have been true of all adoptions at one stage, and it remains true of some adoptions now. But it is emphatically not true of many adoptions and is at odds with the concept of open adoption which is now embraced as a model in what the [Family] President has called the modern world.”

He added: “The judge acknowledged that the severance of ties with the natural family ‘can sometimes be ameliorated by continued contact between the birth family and the adopted child’ and that, in this case, the local authority has ‘committed itself to a search only for adopters willing to promote direct sibling contact’. He discounted these factors, however, on the basis that ongoing contact ‘is at the discretion of the adopters’ and that ‘sibling contact cannot be guaranteed’ because ‘even adopters who are open to it initially may not continue to promote it after the making of an adoption order’.”

Baker LJ found that in these observations, the judge overlooked the fact that it was his duty to “set the template for contact going forward”.

Further, he concluded that the judge was wrong to dismiss the argument that, because of their ages, the youngest two children deserve a right to permanency on the grounds that it “comes perilously close to social engineering”.

Baker LJ said: “Although it is not entirely clear, it seems [the judge] used the phrase “social engineering” to mean taking a decision about the children’s future by reference to social policy rather than their specific welfare interests. But the value to a child’s welfare of the permanence which only adoption can provide has been recognised in many cases.”

Allowing the appeal on both grounds, Lord Justice Baker concluded: “Overall, the judge’s reasoning in paragraphs 44 and 45 of the judgment failed to provide a sufficiently robust and rigorous analysis of the advantages and the disadvantages of the realistic options for the children.

“[…] The judge identified many of the advantages and disadvantages of adoption and long-term fostering in the preceding paragraphs, but his ultimate analysis of the competing factors lacked the necessary balance.”

He set aside HH Judge Wicks' order and made placement orders in respect of both children.

Baker LJ's reasoning was as follows: “Having considered the relevant factors in the statutory welfare checklist, and analysed the advantages and disadvantages of the two options, I have come to the clear conclusion that adoption in accordance with the local authority’s plans is the only option which meets the children’s needs.

“[The youngest two children] need a placement that will provide them with the greatest level of security and a family in which they can grow up feeling a sense of belonging. They also need a placement which will enable them to maintain a relationship with their brothers through regular contact.

“Long-term fostering can meet the latter need but not the former. Adoption in accordance with the local authority’s plans is the only option which meets both of these needs. This will mean that the children no longer have direct contact with their mother, but that is necessary in order to ensure that they have the opportunity to achieve the degree of stability and security which only adoption can provide. This will, of course, be an interference with the mother’s Article 8 rights, but that interference is necessary and proportionate in order to secure the children’s right to a stable and secure family life.”

Lady Justice Elizabeth Laing and Lady Justice Asplin agreed.

Lottie Winson