Adoptive Parents

After the Adoption…

This is a post by Sarah Phillimore

What are the legal options or implications for an adopted child who wishes to spend more time living with their natural parents?

I read recently a very interesting post on the MummyTigerBlog about ‘When is a mum not a mum?’

The blogger adopted two girls and managed to forge a relationship with their natural mother – ‘mummy Jo’. She writes of the importance of that relationship for the girls and the questions they now ask:

The trauma of separation from natural family, their experience of foster care and subsequent adoption has had a lasting impact on my children, an impact that, despite rebuilding the severed natural family relationships that are so important to them, continues to hurt for both girls, although in very different ways. For both girls the re-established relationships with their natural family has been a huge help in their healing process and for their identity as they approach adolescence and the teen years but still brings up many questions of why? Why me? Why weren’t we kept together? Why weren’t we allowed to see our brother? And more recently why can’t I live with Mummy Jo?

The emotional and legal implications for children in this situation are likely to be complicated. I cannot speak to the emotions, other than to agree that the importance of relationships with birth parents and siblings can be positive and significant and we need urgently to reconsider our historical clinging to adoption as ‘a closed shop’ – I have written about this in more detail in this post, Contact Post Adoption – Time for a new Default Position?

However, I thought it might be helpful for other families in this position to consider what are the legal implications of an adopted child wishing to spend more time with his or her family of birth – or even move to live with them.

The starting point is to remember the consequences of an adoption order – this removes parental responsibility from birth parents and the adopted child becomes the child of the adoptive parents. If the adoptive placement breaks down, this does not restore the parental responsibility of the birth parents. Some judges have gone so far as to say that adoption destroys ANY consideration of an Article 8 right between parent and birth child. Given that Article 8 protects psychological integrity, I have always doubted that this could be correct in law, but so far as I am aware there is no case that has looked at this point in the Court of Appeal or beyond.

Can adoption orders be overturned? Yes, but it is rare.

It is possible for the court to revoke an adoption order – i.e. discharge/end that order – using its ‘inherent jurisdiction’ but this is a very exceptional and very rare step for the court to take given that ‘adoption’ is a statutory process that is supposed to facilitate the creation of the new ‘forever’ family.

The case of PK v Mr and Mrs K [2015] EWCH 2316 is one of the rare examples in case law where an adoption order was revoked – it highlights how exceptional this is. PK was nearly 4 when she was adopted by Mr and Mrs K in May 2004. However in 2006 Mr and Mrs K sent her to live with other family members in Ghana where she was subjected to significant abuse. In mid July 2014 PK returned to England and was reunited with her biological mother and grandmother. She became a ward of court on her own application and her mother was granted full care and control. PK was very clear she wanted to revoke the adoption, live with her mother and change her name. The court had no doubt that this was the right outcome for PK.

An adoption order was also revoked in the case of Re J (Adoption: Appeal) [2018] EWFC 8 but again, the circumstances of this were unusual; the child had been adopted by his stepfather and his mother had lied about the father’s whereabouts. When the father found out he applied for the adoption order to be revoked and the court agreed – but it made no difference to the child’s day to day life as he remained living with his mother.

But does the adoption order need to be revoked?

The situation described by the blogger is not one where the child is reacting against an adoptive placement where she has been mistreated – rather the child, now a teenager is expressing a wish to live with her natural mother. It’s interesting to speculate what the court might do if the child did want the adoption order revoked in these circumstances – but I am not aware of any similar reported case.

This is unsurprising, given how rare it is for an adoptive and birth mother to be able to work together in the way that the blogger and Mummy Jo have been able to do. But it may well become a more usual situation; and I hope it does. For a long time now I and others have thought that the ‘closed shop’ model of adoption does not serve children well.

However, this puts the blogger in the uncomfortable position of trail blazer. I am not aware of this situation ever coming before the courts before. What are the legal options or implications for an adopted child who wishes to spend more time living with their natural parents?

This does need to be thought about. A weekend here and there is unlikely to cause many problems – but if a child spends many months or moves permanently to live with a person who does not have parental responsibilty for them, this has the potential to cause problems.

There is a limited form of parental responsibility under section 3(5) of the Children Act 1989 which states that someone who has the care of a child but no PR may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.

But this may not be sufficient to allow the carer to make decisions for the child that the child needs to be made – particularly if the child isn’t Gillick competent.

Could this situation be a private fostering arrangement? This is an arrangement whereby a child under the age of 16 (or 18 if the child has a disability) is placed for 28 days or more in the care of someone who is not the child’s parent(s) or a ‘connected person’. A connected person is defined as a ‘relative, friend or other person connected with a child’. A relative under the Children Act 1989 is defined as a ‘grandparent, brother, sister, uncle or aunt (whether full blood or half blood or by marriage or civil partnership) or step-parent’. The blogger writes:

Mummy Jo is very much a parent, blood relation and a ‘connected person’, the girls were connected to her via the umbilical cord however does this stand up legally? Currently she has no legal connection. What if the girls stay for over the 28 days, a month? the six weeks of the summer holidays? is this a ‘private fostering’ arrangement or just the girls staying with their Mum, because that’s who she is in their eyes, but not the eyes of the law. Any private fostering arrangement needs to be reported to the Local Authority to assess and monitor… an option none of us would relish!

I don’t think this is a private fostering arrangement – I agree that Mummy Jo is a ‘connected person’ – simply by virtue of her friendship with the adoptive mother or by her biological connection.

How should – or could – this situation be regulated?

So how could or should this situation be regulated? I discussed this with a newly qualified social worker and her reaction was very interesting – one of great concern for the emotional welfare of the child and what would happen if the living arrangements with her birth mum broke down. We discussed whether any local authority should get involved and whether the child’s school might want to refer it on. In this particular case, there seems little doubt that Mummy Jo is a tried and tested ‘safe parent’ – but what of cases where there is more doubt?

We batted back and forth the question of whether this kind of situation requires professional intervention. I argued that an adoptive parent has been assessed as able to be a child’s parent and should be allowed to get on and do what they think is right for their child – the state should not intervene without evidence of significant harm.

The social worker responded that I could not treat an adopted child in the same way as a biological child, as it was inevitable by the very fact that the child had been adopted that there had been significant trauma in that child’s life and there ought to be some professional oversight of any such move.

I can see the force in that argument. There is no doubt in my mind that social media has made it very easy for children to find their biological parents. I have no doubt that situations are going to arise where there is not the good working relationship between adoptive and birth parent that we see in this situation. We need to start thinking more about the legal framework whereby a child moves from adoptive to birth parent.

We ended our discussion by thinking that the solution here was a child arrangements order. That would provide a legal framework for the birth mother and also some oversight of the process by way of a section 7 report.

However – as the blogger comments, this route does not solve all the problems

Do we go to court to get a Child Arrangement Order (previously residence Order)? A child arrangement order would only last until the girls were 16 and they still wouldn’t have the legal ties to their natural family. Can an adoption order be dissolved in the UK? Where would that leave the girls if one wants to stay with me and another return to Josephine, their relationship with each other and their big sister legally severed if the adoption is no longer in place? What about visits, if they want to come back to stay with me for 28 days or more, or come abroad on holiday with me and their sisters, would we have the same issues? Wherever the girls live, they will always be family, we’ve shared good times and bad, learned from each other, laughed and cried together, and as long as any of my children want I will always be there for them, severing the adoption would allow them back to where they belong but in my heart, as with Mummy Jo, the girls will always be ‘our girls’, unfortunately legally it isn’t so easy!

In the end – is the only solution for the adoption order to be revoked and the birth mother to then apply to adopt her own child? This cannot have been a situation envisaged by any of those drafting the Adoption and Children Act! Although at para 20 of the PK case the court comments:

PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.

I do not know what the court meant by ‘revert to having legal status as a member of her biological family’ as revocation of the adoption order does not – so far as I know – restore the PR of the birth parents. So what is meant here by ‘legal status’ ? Am I wrong about revocation of an adoption order not restoring a natural parents’ PR? Or presumably, the powers under the inherent jurisdiction being theoretically limitless, the High Court could restore PR?

Maybe someone has to volunteer to be a test case.

I would be very interested to hear other’s views – particularly if there are any reported cases I have missed which deal with this situation. I am pretty confident that this will not be the first or last example of the complexities that can follow the ‘happy ever after’ adoption order.

Seeking help for adopted children should be safe

Living with the long term effect of abuse and neglect.

This is a post by an adoptive mother, who shall remain anonymous.

Adoption is a cornerstone of social policy in the UK for children living with abuse and neglect, and without legal reform, adoptive families are at high risk of having their children removed as a crisis measure when they seek help for a child’s extreme difficulties as a result of earlier abuse/neglect. This piece is written by an adoptive parent and many of the experiences described may be common to parents of children with disabilities including cognitive disabilities and mental health difficulties, who seek help in the form of respite or specialist support for challenging behaviour.

A new round of joint targeted inspections by Ofsted, the Care Quality Commission, and probationary inspectorates into the impact of childhood neglect, will have begun this month focussing on middle age children (age 7-15) who are at risk of exploitation and/ or showing challenging behaviours (Community Care, 17th April 2017). The impact of childhood neglect may last a lifetime and it is not clear whether the inspections will focus solely on children whose needs for love and care are not being met currently and children that may have entered the Care system for reasons of neglect and abuse, and they and their carers are living with the effects of previous neglect.

As an adoptive parent I know that neglect can occur in isolation but often involves abuse too. Concerns were raised by the Selwyn report (2014) about adoptive families accessing appropriate support for what can be extremely challenging behaviours, well beyond the bounds of normal parenting, stemming from abuse and neglect. The report identified that parents struggled to access services, especially crisis support, and that children’s disabilities are often not recognised or acknowledged in adoption, in terms of accessing post adoption support and services, even for relatively well known conditions such as autism.

My son experienced profound early life neglect and abuse. When problems emerged in the early years of adolescence and I reported problematic behaviour that was clearly related to my son’s abuse history, it seemed removal, which neither my child or I wanted, was the only option considered by the authority. Only after a period of several years, and a number of court proceedings, did my son return home with no public law orders in place, and when this happened our reunification was not planned or supported. We found ourselves back to square one, albeit with a capped Adoption Support Fund, that we had been unable to access whilst my son was living away from home. The Pathway team say that their support, which runs out 6 months after Supervision Order discharge, is not for young people like my son, who live with their family. As a result of our family’s experiences I believe that the child protection system, particularly as it relates to adoptive families, needs to change. It seems too divisive of parent and child and totally unsupportive of parents reporting and seeking help.

These are my thoughts.

Reporting of problems needs to be safe

There should be an expectation of support for parents dealing with challenging behaviour, especially in the child’s middle years when the repercussions of removal can be life altering. We cannot have a situation – which we have now – where there is fear to report the problems because the consequences of reporting may be worse than keeping silent.

Recognition that removal of the child brings its own new set of problems

Removal of children from their home and family, sometimes, at a great distance, may solve the problems (although this may be necessary), but more problems may be created when the focus remains almost exclusively on risk and if intervention continually comes between parent and child. Risks and benefits need to be carefully considered, with parents involved, and both short and long term outcomes need to be thought about.

Children can be traumatised by their removal from family, feel rejected and frightened by the enormity of what is happening to them, and they can express their frustration towards those it is safest to do so with – their parents. There will be a natural move towards independence in adolescence and parents can be pushed away by their child and at the same time find themselves marginalised by the responsible authority. Identity issues come to the fore in the middle years, and in adoptions, the approaches taken can push a child or young person to seek contact with birth families. This is in itself an emotionally intense situation to deal with and the reasons for the child being taken into care may have not been addressed. Risks can be far greater than they ever were before.

Recognition that reunification can be problematic after a child has been in care

One recommendation of the Selwyn report was that reunification should never be ruled out – but coming together as a family can be problematic after a child is living away from home, especially after a Care Order is made, for example, if secure accommodation was needed.

Law orders and court proceedings should not be an obstacle and barrier to family life for the child, particularly children living with neglect. Family life, and parental love can offer protective benefits and ameliorate risks associated with neglect.

Reunifications can be especially challenging if a child has suffered corporate trauma or negligence as a result of their being in care and it is highly unlikely this will be recognised by the agencies involved.

Infrastructure change and new models of support are urgently needed

New models of support are required, to support the family as a whole, when middle age children exhibit challenging behaviour resulting from neglect, trauma, disability and cognitive impairment. Timely respite and periods of separation may be necessary and it should be much easier to come together again afterwards. Infrastructure and legislation must support partnership working with agencies and authorities. It is regrettable in my view that adoptive families cannot access the ASF (Adoption Support Fund) – administered by Mott MacDonald, if there is no intention to reunify on the part of the local authority – and that this fund, recently capped at £5k, is only accessible through the local authorities. Effectively this can mean that adoption support via the ASF is potentially not available to the adopted children and families that need it most.

An approach that sees parents blamed and removes children instead of supporting families is not just a systemic failing, which sees the Rights of the Child violated, it is likely to be extremely costly. Residential care costs £3k per week on average according to a recent review by Sir Martin Narey. Parents are key to the future welfare of their children, especially so where there is previous neglect, abuse and disability, and they should be seen as a resource. Committed parents are not adversaries of our children or the state. Legal reform is needed so that we are not treated as such, and the decisions, actions and performance level of agencies can be better scrutinised, with repercussions for organisations where there has been corporate negligence.

Finally, becoming an adoptive parent has been the best thing that I’ve done and I believe in the Care system. I want no child to enter it who does not need to be there and I want the Care system to have the capacity to meet the complex needs of the children who enter it. Without comprehensive change for children in need, at the edge of Care, including children who have been adopted, living with the long term effects of neglect, I believe that this dream of a Care system ‘fit for purpose’ will remain just that – a dream.

Adoption Breakdown – Why is ‘blame’ required? Does the law need to change?

This is a guest post from an adoptive parent who is concerned about what happens when adoptive placements break down and the local authority apply for a care order for the adoptive child. There are obvious difficulties when the legal test to satisfy a care order seems to be based on ‘blaming parents’ by focusing on the impact of parenting upon the child’s behaviour. For many adoptive children who have suffered trauma in their early lives, their behaviour is most likely to arise out of those traumatic experiences and not because of anything their adoptive parents did or did not do.

Making the court process about ‘blaming’ such parents when an adoption very sadly breaks down, does not seem to help any one. Is it time to amend section 31 of the Children Act 1989? Rather than asking the court to look at issues of ‘significant harm’ and ‘beyond parental control’ should we add ‘complex medical or psychological needs’ as reason to justify the making of a care order – and thus put the focus on the child’s needs rather than the parents’ blame.

Please support our petition for Parliament

https://petition.parliament.uk/petitions/125814

We hope you can help us raise awareness to a petition for parliament.

We have an our adopted daughter (now 14) and unfortunately at the beginning of February we had to give her up for foster care due to her complex health needs.

The LA are blaming us as ‘bad parents’ but we agree with their recommendations to go for family therapy and help with how to deal with difficult teenagers. We are currently in court proceedings and as we have no dispute in the end result of LA going for interim court order, envisage no problems, it is just the way we get there is what we are disputing.

The PC report was written jointly with a student SW (who we really did not see eye to eye with) and also our AD SW, who we get on great (who is fairly new). While we understand a lot is based on opinion, they have based these on inaccurate, misquoted and even fabricated statements we made in the assessment meetings. We understand their agenda but to simply quote these inaccurate facts is simply unprofessional. We have written our objections back to them in writing and it is with their solicitors.

The PLO meeting earlier in March, went well very accordingly to our solicitors and the LA seems almost sympathetic to our situation, so we do not understand why their reports has been written in a such a way. Maybe to actually have something for the judge to approve on their decision?

We have another AD half-sibling, who LA have agreed can stay with us and who is not attached at all to the one who we gave up to foster carer.

The good news is, the foster carer (who are also close by) have agreed to have our 14 AD till she is 18, they are very nurturing and AD has settled in very quickly (as she has attachment condition as well).

I have got a petition actually published in Parliament (No blame approach to adoption) requesting for an addition to the Children’s Act part IV sec 31, which is to add “has complex medical and/or psychological reasons”.

This is the link: Petition: https://petition.parliament.uk/petitions/125814

PLEASE SUPPORT OUR PETITION TO PARLIAMENT

National Adoption Week – An Adopter’s view Part II

Who or what is helping traumatised children?

We are grateful for this second post about National Adoption Week from the perspective of an adopter. She queries why the only open and honest debate appears to be coming from adopters or adoptees. This is particularly so when talking about the impact of trauma upon children and their development. That the only intervention for traumatised adopted children appears to be to put them in section 20 accommodation is a ‘national disgrace’.

I have spent a little too much time reading, listening and watching the coverage of National Adoption Week 2015. I was hoping for a bit more honesty than previous years. I am not at all surprised but am saddened that we really are having the same old tripe being spurted out by those who should know better.

The only honest, open, truly adoption focussed reality checks have come from adopters or adoptees.

We have seen this years strapline emblazoned on some important buildings in a few cities
`Too old at 4’. What the strapline or the hype don’t mention in a realistic way, is the level of trauma those children have suffered or the fight that adoptive parents will have to get them the help and support needed to live with that trauma.

A report published in 2014 ‘Beyond the Adoption Order’ gives a very detailed description of the difficulties.

Children who have suffered trauma – who promotes their ‘best interests?’

In this guest blog, I want to tell you about what can happen when those that should know better do not act in ‘our’ children’s best interests. When I use the term ‘our’ I am talking about adopted children who have, in reality, if not law, two families.

Our children’s trauma usually takes a while to surface, often years and often during the turbulent teens. There will have been a few signs during primary school days for many. Our children will struggle with friendships, with the structure of the school day. They will get far more than their fair share of fixed term exclusions and even permanent exclusions before anyone in local authority education depts will agree to assess them for an education, health and care plans.

The evidence is clear that children in care do not fair well in comparison to their peers and yet adopters struggle to get those in education to believe that our children will suffer the same , if not more, difficulties. We have been able to access the pupil premium over the last few years and we know how it should be spent to help our children. Sadly this doesn’t happen in most local authorities because our children do not have a right to have their education overseen by a virtual school head teacher like children in care do.

If our young people get through the education system, they may not be so lucky in the way their sometimes fragile mental and emotional health is concerned.

The failure of CAMHS Teams and the disgrace of long term section 20 accommodation

Despite their early maltreatment and unresolved trauma, many Child and Adolescent Mental Health (Camhs) teams fail to address the mental health of our children. Adopted children got a mention in an overview of current Camhs provision and their particular difficulties have very recently been the subject of a roundtable discussion.

Social care are often no better than education or health. Adopters have something that birth families, special guardians or kinship carers don’t. We have access to post adoption support social workers. Like many services nationwide, those services vary in quality. The good ones come into their own when our children start to live their trauma out in the here and now. The children make allegations of abuse against their adoptive parents. Thankfully, many of the allegations are false and in a tiny amount of cases where they are found to be true, we all need to know that those children will be kept safe.

However, the majority of allegations are false. We know why our children make allegations but childcare social workers have little experience of traumatised children who are now safe with their adoptive families , safe enough for the trauma of their past to leak everywhere.

Sometimes that trauma shows itself in the violence that our children perpetrate against us, their parents, to their siblings, their friends or even to animals. They can also turn the violence to themselves, taking risks that belie the range of normal teenage risk taking or self harming.
At this point in their lives, many of our children will become `looked after` for the second time in their lives. They will be voluntarily accommodated under Section 20 of the Children’s Act.

For many of our children, they will remain in the care of the local authority under S20 until adulthood. This is a national disgrace. That a maltreated child, removed from their birth family for all the right reasons, does not get the help they and their adoptive families need to resolve (or at least come to terms with) their trauma, is unforgivable in a civilised society.

My message throughout NAW was that children and young people must always be at the core of everything that is done in their name. Those who have returned to care are no different.

‘OUR’ Kids must always be the priority.

National Adoption Week – An adopter’s view

We are grateful for this post from an adoptive parent, who calls for an end to the distorting rhetoric about adoption; without honest and open discussion of what is gained and lost through adoption, we risk losing focus on what should be the fundamental core of all our endeavours here – the children and what they need.

During National Adoption Week, as a society, will we be able to finally have the conversation we urgently need? Or will rhetoric and political agendas continue to stifle that debate?

I have come to understand that adoption is more about loss than gain

Today is the start of National Adoption Week (NAW) when Adoption Agencies (on behalf of the Government) want and need to inform the public about how their country needs them. Not to go to war but to parent children and young people through adoption when nothing else will do

I am an adopter. I have a few problems with National Adoption Week. I probably shouldn’t because I can recall seeing some daytime tv 16yrs ago and thinking – `yep, that is what we need to do.’ Hubby and I would make good parents and if children need a forever family, that can and should be us.

Over the years that followed that day, I have come to understand that modern adoption is more about loss than gain. I hope you will understand why I think that by the end of this week.

I am a member of a peer support group for the parents of traumatised adopted children and young people. Trauma is a term we think best describes the losses our children have lived with. It describes their loss of birth family, identity, childhoods where they had rights to be kept safe, physically and psychologically.

A few weeks ago a few of us attended the first Family Law Class open to all . It was a good class. We were well aware that ‘our’ children’s birth families could be sat next to us and that was ok. It was ok because we know about their loss, their difficulties with communicating and dealing with professionals at an immensely difficult time in their lives. We know because a minority of experienced adopters go through the same experience with social services as many struggling birth parents. I will talk about that later this week.

Today I want to talk about what I feel is often unsaid during NAW, about birth parents, adopters and ‘our’ children.

The elephant in the room – what will happen if my child’s birth parents didn’t harm them after all?

Those professionals and interested adopters will know that the answer to the question is – probably nothing. The circumstances under which any Judge will reverse a decision involving an Adoption Order (certainly after some time has elapsed) are very rare.

But experienced adopters are well aware of the miscarriages of justice that have happened in the UK. I speak for many adopters who feel that these miscarriages of justice are a travesty. A child and maybe their siblings will have lost their birth parents, each other and everything they hold dear. They may be moved from pillar to post within the care system, being sent to live with strangers and one day, will have to learn that none of that should have happened. Such a loss can never really be put into words can it?

Adopters feel for birth parents where miscarriages of justice have happened. We have genuine empathy for them and hope that agencies (& if necessary the courts) do everything in their power to ensure that those children, birth parents and adoptive families are enabled to build a mutually rewarding relationship in the future. It can be done, I am sure of it. Society needs it to be so.

But what of those children and young people that were rightly removed from their birth parents?

People approved for adoption will have been told and will have read reports written by social services about the children’s life with birth parents. We will have been told that the children need a new `forever` family because birth parents are not able to safeguard them. The birth parents are deemed by all in authority to not be `good enough parents’. This is my first problem with NAW.

NAW will have you, the person wanting to be a parent, believing that that is absolutely the case. It may well be, but I have been concerned for a number of years that it isn’t that simple.
Prospective adopters need to believe that for `our` children to have been placed for adoption, their birth families must not have been ‘good enough’ to do the job. Parents need to keep the children safe, not to abuse or neglect them, to put the children’s needs above their own. Parenting isn’t just about loving them. Social services are meant to prove that to be the case. Family law courts are supposed to ensure that that is the case before they agree to a placement order and thereafter an adoption order. Adopters need to believe that social services have also ruled out that other forms of permanence would not be in their child’s best interest too.

We will be led to believe that some birth parents should either never have direct contact (I prefer to say `have a relationship with`), or should absolutely have a relationship. We need to know that all the decisions made in relation to `our` children are made with the best of intentions.

We adopters need to know these things because contrary to some rhetoric, adopters do not want to steal children, we are not a market of middle class do gooders or people that need to have a child as a fashion accessory. We are not the reason that children need to be removed from the otherwise loving caring homes any more than the government have `targets` for removing children to support some black market.

We are just people who know we can give love, nurture and care to traumatised children and young people. We can and do put our children’s needs above our own.

My message throughout NAW is that children and young people must always be at the core of everything that is done in their name.

`OUR’ kids must always be the priority.

Contact Post Adoption – time for a new default position?

This is a post by Sarah Phillimore, the bulk of which was written in 2014 when there was a hope that there may begin to be a shift in attitudes towards the possibility of contact with birth parents post adoption, particularly when the parents did not seek to disrupt the placement and had not caused actual significant harm to their children but had lost their children on finding that the risk of future harm was too great. Now the first case has been decided which looks carefully at the arguments for and against and has re-affirmed the position that orders for post adoption contact are unlikely to be made unless the adoptive parents agree. However developments continue in a push to make post adoption contact something that is actively and seriously considered by professionals – see discussion below and further Court of Appeal decision from 2024.

EDIT March 11th 2019 – First case to be considered in the Court of Appeal

On the 30th January 2019 Court of Appeal handed down judgment in the case of B (A Child : Post-Adoption Contact) [2019] EWCA Civ 29 (30 January 2019). This case involved parents with a learning disability who did not wish to disrupt the placement, Nevertheless the Court of Appeal affirmed that it must be ‘exceptional’ to impose an order for contact post adoption with which the adopters did not agree. The court stated at para 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.

See further this article by the lawyers involved in the case, Sarah Jennings and Phil Storey, where they offer the following suggestions for lawyers involved in such cases:

to be aware of the current research in respect of post-adoption contact. If it is expected that the professionals working within the field are considering the recent and relevant research then it is crucial that we are able to appropriately analyse this information during the course of any hearing.
continue to raise issues relating to post-adoption contact through the care and placement proceedings and adoption proceedings.
hope that prospective adoptive parents and adoption social workers familiarise themselves with the developing research showing the benefits of post-adoption contact and how changes can be made on the ground. This needs to form the basis of some realistic training for prospective adopters around post-adoption contact.
consider making more applications for contact orders alongside placement orders under Section 26 of the Adoption and Children Act 2002) so that the issue of post-adoption contact at a realistic frequency is identified and discussed with potential adopters at an early stage in the process.

RE B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: What is the Future for Post-Adoption Contact?

Discussion in 2014

We have come a long way from the days when adopted children might never even be told they were adopted. The huge majority of adopted children are not new born babies but much older children who may retain clear memories of their birth families. They will go to their adoptive families with the benefit of ‘Life Story’ work and photographs as we are now much more aware of the importance of knowing about and understanding our roots.

What kind of contact with birth families is either desirable or necessary after a child is adopted? The ‘default’ position appears to be ‘letter box’ contact a couple times a year but the issues raised by research and experience suggest that this default position needs re-examination.

The Children and Families Act 2014 came into force on 22nd April 2014 and introduced a new section 51A of the Adoption and Children Act 2002 which will allow applications to be made for contact after an adoption order has been made. Suesspicious minds has written a detailed post about this here.

In this post we shall look at some of the lessons from the research and direct experience of those who are trying to start or maintain contact in such difficult and emotional circumstances.

Why is it important?

When an adoption breaks down, this is extremely traumatic for both the child and the adoptive parents. Disruption rates for adoption are quite high, considering the amount of care and time that goes into the assessment process; some studies show the breakdown rates for adoptions can be as high as 25%. There is some interesting research here from the US about rates of adoption disruption and what causes them.

Research published on April 9th 2014 by the University of Bristol offers another perspective on adoption disruption rates, concluding that they are low but emphasising the importance of post adoption support, particularly for older and more challenging children.

Therefore, it is important to know about the possible or likely effects on the placement of post adoption contact.

There are a number of other factors to consider:

Positive factors for post adoption contact

Answers children’s questions about their past and allows them to know the reality of their birth families, saving from possible disappointment later;
May assist child’s self esteem and sense of identity to know that birth family cares and is interested;
Supports older children to continue established relationships with birth family members – the ‘disappearance’ of such people may hinder the child’s ability to form attachments to his adoptive parents;
Helps birth family members to resolve their grief and keep them informed about how their child is doing;
Helps adoptive parents feel more secure as ‘parents’ as the issue of contact is being addressed in structured and planned way

Negative factors for post adoption contact

Direct contact with birth family could have negative implications for a child’s ability to form attachments with adoptive family and stop them feeling a sense of ‘belonging’ and permanence;
If the birth family can’t sustain contact or the contact experience is negative this could be harmful for the child who experiences another rejection;
Adoptive parents may find it very difficult to sustain a positive relationship with birth families, depending on circumstances of the child’s removal from their care.
There is a risk birth families could use direct contact to try to undermine the adoptive placement, either consciously or unwittingly.
Even if positive, contact can cause emotional strain, particularly for older children.

What does research tell us about contact post adoption?

The numbers of children adopted each year have decreased significantly from about 21,000 in 1975 to 5,797 in 1995 and 3,980 in the year ending March 31st 2013; a reflection of the increased availability of abortion and the societal shift that no longer stigmatises illegitimacy.

The average age at adoption in the year ending 31st March 2013 was 3 years 8 months

2% (90) of children adopted during the year ending 31st March 2013 were under 1 year old
74% (2,960) were aged between 1 and 4 years old
21% (850) were aged between 5 and 9 years old
2% (70) were aged between 10 and 15 years old
<1% (10) were aged 16 and over

Adopted children are therefore very unlikely to be brand new babies, given up by desperate teenage girls, but rather older children who may have already suffered significant trauma. It is not difficult to understand how adoptive parents may be very wary about the idea of continuing ties with the very people who might have hurt their child.

Research suggests that ‘communicative openness’ in adoptive families – how they think and talk about adoption – is positively linked to ‘structural openness’ – contact with birth family members – and can have a positive impact on the adoptive parents feeling more secure in their role of parents. However, it seems that children’s emotional and behavioural development was not related to either the type of contact they were having with their birth families or the communicative openness of their adoptive parents. See Post-Adoption contact and Openness in Adoptive Parents’ Minds; Consequences for Children’s Development Elsbeth Neil (2009).

Some messages from recent research

The Centre for Research on Children and Families/UEA Contact after adoption: a follow up in late adolescence (Dec 2013)

Every case is different, and contact planning should be individualised.
Prospective adoptive parents and birth relatives should be prepared thoroughly for contact.
The long term needs of the child should come first in contact decision making and children should be involved once they are old enough.
Both adoptive parents and birth relatives need to be treated sensitively so that their questions and anxieties about contact can be addressed.
Facilitated meetings between adoptive parents and birth relatives to plan post adoption contact could be considered.
Information about background is essential in building a sense of identity, therefore it should be made available to young people either via contact and/or life-story work.
Where contact has been agreed, adoptive parents and birth relatives should stick to their side of the arrangements. If contact needs to decrease or stop, the other parties need to know the reasons why.
Social workers should review and support contact to ensure that it continues successfully.
There should be more support offered to young people at age 18 about deciding on the future of their contact.

Challenge of finding answers in research

Elsbeth Neil recognises

finding empirical answers to questions about outcomes of contact after adoption is frustrated by significant methodological challenges …what is meant by contact after adoption? The type, frequency, duration and management of contact all need to be considered, as does the type of birth relative involved.

In addition (Neil and Young 2009):

We are left with no simple answer to the question of whether contact will be beneficial with any specific adoption placement. Each study reveals differences between children and families according to whether contact is appreciated and experienced in a positive way and also shows patterns and changes over time.

Each adoptive placement is unique and there cannot be one path for all or even one path for all time within a placement. The developmental stage, attachment and parenting history, personal qualities and personalities and context of the child and adults involved will no doubt have a part to play in how contact is experienced.

Elsbeth Neil urged social workers to remain open minded about the issue of direct post adoption contact, resisting blanket predictions of either help or harm. However, it seems that the prevailing attitude is to assume it shouldn’t happen. Different reasons are given for this and they are compelling; birth parents may try to undermine the placement, the children may have unpleasant memories of the birth family and become upset by contact. Many social workers worry that potential adoptive parents will be ‘put off’ adopting if they also have to manage direct contact with birth parents.

But in practice it is rare to find social work analysis that goes beyond those familiar shibboleths, to consider the particular circumstances of children and birth family currently under scrutiny. Those of us who represent birth parents in care proceedings will be sadly familiar with the ‘party line’ around post adoption contact. It seems that the best we can get is a vague expression of a ‘hope’ that an adoptive family can be found who would be ‘open’ to direct contact but in the majority of cases the industry standard is letter box contact once or twice a year. This is so even in cases involving parents who would not actively attempt to undermine the placement and who had not subjected their children to serious abuse, such as parents with a learning disability whose children were removed on the basis of risk of significant future harm.

Perhaps we are still left with a residue of those earlier desires to entirely absorb the adopted child into the new family and to protect a sense of entitlement for adoptive parents. After all, it is asking a lot of someone to undertake the arduous task of raising a child (who often is neither grateful for nor welcoming of the parents’ input) without clear recognition of the status of ‘parent’.

Problems with indirect ‘letter box’ contact

This should not be thought of ‘the easy option’.

It is hard to write to people you don’t know;
indirect contact may falter without initial support to help all involved provide quality information;
there is a risk of what is written being misinterpreted or misunderstood, particularly when birth families already feel a lack of trust in the system;
adoptive parents will often ‘give up’ when birth families don’t respond.

Photographs were seen by almost all as more ‘real’ and honest than brief written updates but letters could be successful when written in a ‘newsy’ and friendly style.

What’s happening in practice?

The current motivation appears to be to assume that adoptive families should be left in peace without any direct dealings with the birth family throughout the child’s minority. The child’s need for information can be met by Life Story books, some photographs and possibly a letter once or twice a year. An adopted child and birth families can now enter their details upon the Adoption Contact Register to apply for contact with one another. However the clearly stated purpose of the register is to permit contact only between adults if both want it.

Section 4 of the Adoption and Children Act 2002 provides that adoptive parents, children and birth families all have the right to request an assessment of their needs for post adoption contact. A recent study investigated the levels and nature of such support (see Supporting post adoption contact in complex cases – briefing paper June 2010). It found that direct contact happens only in a minority of cases and support for such contact is likely to be organised on a case by case basis rather than via dedicated staff or formal systems. The prevailing attitude of social workers towards direct contact is to focus on controlling risk rather than pro active consideration of how to overcome problems that would affect contact.

The main type of support offered to both adoptive and birth parents was co-ordination and administration of contact, rather than providing emotional or therapeutic support such as work on relationship building. Unsurprisingly, for direct contact to work well it helped to have an element of emotional support together with facilitators who were organised and forward thinking, anticipating challenges and changes rather than simply responding to them. The ‘average’ family used contact support services 12 times over the course of a year and the cost was £999. Unsurprisingly, the cheapest model of support was administered contact averaging £395 per year whilst supervised and facilitated contact averaged at £1,371 per year, but these costs were probably an underestimate.

As Dr Claire Fenton-Glynn comments in her report to the European Parliament in June 2015:

… the jurisprudence of the English courts shows that it will be rare for direct contact to be awarded against the wishes of the adoptive parents. Although their wishes will not be determinative, as the decision will be determined by the child’s welfare, the courts have recognised that it will not usually be in the child’s best interests to impose an obligation on the adoptive parents that they are unwilling to agree upon. This is based on the premise that the welfare of the child depends on the stability and security of the adoptive parents, and a decision that undermines this will be damaging to the child.

This position fails to take into account the changing nature of the driving forces behind adoption. When it was first introduced in English law, it provided a mechanism for single mothers to place their infants with an adoptive family without anyone being the wiser. Birth outside wedlock was a social stigma for both the mother and the child, and as such, the adoption would cut all legal ties with her, and there would be a complete legal transplant from one family to the other, under the shroud of secrecy. However, in the current era, the majority of children that are adopted are older, and have an established relationship with their parents, siblings and wider relations. Even where circumstances dictate that they require alternative care, it does not necessarily require that there be no further contact with their birth family. As such, this is an area in which English law needs to evolve so that greater recognition is given to the child’s pre-existing ties with the birth family.

It would be interesting to develop existing research and to have greater consideration of the existing structure of post adoption contact support together with a more rigorous cost/benefit analysis of the different types available. Considering the detailed nature of the assessment and matching process in adoptions, some studies show the disruption rate is surprisingly high at about 25%. It is certainly worth investigating whether or not greater structural and communicative openness in adoptions is a protective factor against breakdown.

That investigation becomes even more urgent when considering the inexorable rise of the new social media and the impact this has had on the way information now flows and is disseminated. It seems unlikely that the current rather static and limited framework to post adoption contact, with emphasis on adult control and choice, can survive the challenge posed by Facebook or other similar social networking sites. See this review of the book ‘Bubble Wrapped Children‘ by Helen Oakwater, which examines the issue of adoptive children seeking out their birth families with the help of social networking sites.

Conclusions – what helps make post adoption contact work?

The adopters are able to help the child understand a full and honest account of his background;
This account is given at a pace which is sensitive to the child’s ability to take it in;
The adopters are able to show empathy towards the birth family;
The birth family accept the adoption and don’t try to use contact to undermine the placement;
The child understands what is going on and is comfortable with contact;
The purpose of the contact is clear and understood by all;
The parties trust each other to make it work;
Contact is supported.

EDITS – FURTHER DEVELOPMENTS

March 27th 2017 – new developments

There have been some important new developments. First, McFarlane LJ spoke of his disappointment that there had been no ‘sea change’ in attitudes towards post adoption contact after the 2002 Act. We now also have the Contact After Adoption site which supports practitioners working on making positive post-adoption contact plans and supporting birth relatives and adopters through contact planning for their child.

Research from Cardiff University 2018

See ‘The support needs and experiences of newly formed adoptive families: findings from the Wales Adoption Study’ which one of the authors commented shows that adoptive parents have a more open and flexible attitude than they are commonly assumed to hold.

This paper reports on findings from the Wales Adoption study, which used a sequential, mixed method design to explore the early support needs and experiences of newly formed adoptive families. Ninety-six adoptive parents completed a questionnaire four months post-placement and sub sample of forty parents were interviewed in-depth five months thereafter. The main support needs of the families fell within five key domains: promoting children’s health and development, strengthening family relationships, fostering children’s identity, managing contact with significant others and financial and legal assistance. Whilst the age and developmental stage of the child placed for adoption often influenced the nature of the support required across the various domains, the need for some form of support in every family was universal. Most, however were not facing insurmountable difficulties. Arguably, many of the support needs identified could have been anticipated, as they illustrate the complexities of ‘normal’ adoptive family life. The implications for social work practice are discussed.

Research from Sydney 2019

Collings, S., Wright, A. C., & Spencer, M. (2019). Family Connections and Contact Study: Final Report. Institute of Open Adoption Studies, Faculty of Arts and Social Science, The University of Sydney.

Key findings

State-wide permanency reforms to increase the uptake of guardianship and open adoption by existing caregivers appear to be having an effect. A third of participants (N=19) were actively pursuing a move from kinship care to guardianship or long-term foster care to open adoption.
Agency support appeared to taper off gradually for families during the transition to more permanent arrangements for children. Caseworkers could perform an important mediation role between carers and birth parents, modelling active listening and empathic communication, and supporting birth parents to attend contact visits.
Families who were in guardianship and open adoption arrangements had more evolved relationships than those in long-term foster care.

The type of contact in place and the access to professional support for contact influenced the quality of relationships between carers and birth parents. Supervised contact was associated with under-developed relationships between adults.
Young people in care wanted to be consulted about their views of whether seeing some birth relatives was in their best interests and about contact planning.
Children wanted contact to be a special time and many wanted to spend more time with birth relatives, particularly siblings. Children avoided raising topics that would upset parents in order to keep contact visits happy and positive.
Contact experiences for children and birth relatives were influenced by interactions that took place outside of contact and often did not involve children directly, such as those between caseworkers, birth parents or carers.
Agency processes could get in the way of adults building partnerships when carers and birth parents were discouraged from getting to know each other or being more flexible.
Agencies could be perceived to take sides by both carers and birth parents, highlighting the need for clear and transparent messages and open communication.
The experience of child removal was a source of ongoing grief and trauma for birth parents, regardless of how much time had elapsed. When encounters with child protection systems were negative and parents were coping with complex issues and adversity, they were less able to trust carers and caseworkers.
Long-term foster carers with no plans to pursue open adoption held negative views of independently facilitated contact and wanted an agency buffer between themselves and birth relatives.
Carers who had managed to transform their views and approach to contact from a legal obligation to a rewarding time with family shared common traits of being positive and optimistic, tolerant, and cooperative.
Contact was viewed positively by adults when birth parents were able to accept a new parenting role and carers could recognise that birth parents had a legitimate emotional investment in their child’s life.

EDIT November 2024 – see Public Law Working Group guidance on best practice in adoption

The Guidance published in November 2024 examines the issue of post adoption contact and says

The group also recommends greater support and
counselling for birth parents and that the full range of contact options, including
digital options, should be actively considered by the professionals and the court
during care and placement proceedings. We do not suggest that contact orders
should routinely be made in the face of opposition from adoptive parents, whether
at the time of the adoption itself or later, but it is believed that opposition is much
less likely where adoptive parents are given a thorough understanding of the
child’s needs right at the start and are given the right support. The statutory
framework for making contact orders has existed for many years, but the decisions
of the Court of Appeal make clear that making contact orders in the face of
opposition from adoptive parents should happen only rarely (albeit see the
comments of the President of the Family Division, Sir Andrew McFarlane, in his
lecture, Adapting Adoption to the Modern World: Part 2: May 2024).

See also R & C (Adoption or Fostering) [2024] EWCA Civ 1302 – Court of Appeal decision re s26 ACA 2002 contact – court has a duty to “set the template for contact going forward” at the placement order stage and the court has the responsibility to make orders for contact under s26 if they are required in the interests of the children

https://www.bailii.org/ew/cases/EWCA/Civ/2024/1302.html

Experience of those dealing with post adoption contact.

Birth Families

Here are the views of one grandmother, who is finding the experience very difficult. What could or should we be doing to improve this experience for all involved?

Loosing my grandchild through no fault of my own or my son and problems with the first letterbox to us has been chaos emotionally. I am not used to being written to with such ‘ill feeling’. I am just hoping it was first letter nerves. We are trying to write a reply without being sarcastic and make things worse next time. There was no support for me and her Grandad throughout the whole of the SS proceedings. We felt like ships adrift with no hope. The first letter was a like a bombshell which left us wondering what the adopters had been told about us. Did they think we were monsters too?

We have no faith in the SS and we has hoped for some sort of comfort from the adopters. We thought they may understand or have had some training in how to help extended family who get letterbox. Is there anything anyone could suggest we try to break the ice, or do we just have to put up with what we get. I have no faith in the system that has treated us so badly and we had hoped for better from the people who will be looking after our grand child for the next 16 years. We are still waiting permission for getting photographs, so we can put them with our family ones in our new house. A house we had to move to during the guardianship fiasco which was doomed to fail we found out too late. Also is it allowed to write one to the adoptive parent and one to my Grandchild for when they get older? How will I know if they are shown them? I have huge trust issues at the moment. I just need reassurances from people who are doing it. I cannot and never will be able to trust what the SS tell me.

..I have seen a poem and have a few photographs to add from the first birthday party we were allowed. Songs which remind us of our time together. There are so many of us on our side of the family. Each year they will be eager to hear how things are going. Her birthday is the same day as her Dads cousin and it will remain a double celebration regardless. Her great grandparents will never forget either and it is a shame that they did not all get to meet her in person.

I really do hope that her new parents realise how much we love her and want her to know this while being loved by them too. We do not want to steal their thunder, a glimpse of the rainbow is all we ask.

Prospective Adoptive Parent

My thinking on the topic starts from the belief that unless contraindicated, e.g. known to be detrimental for the child in question, contact has got to be a good thing.

Good for the child: I can imagine many circumstances where the downsides of a mother basically just disappearing from a child’s life, heavily outweighs any benefits in terms of the child being able to settle and bond with their new family better. I can imagine that this idea that a child needs their birth mum to be completely out of the picture, in order to be able to form secure attachments with the new family, to be mainly fuelled by the new parents’ insecurities. However I would be very interested to know if any research has been undertaken on this, or if this strategy is just based on assumptions.
I think that nowadays the reality will be that average resumed contact with birth family will come at a much earlier age than previously, simply due to the social media. Whereas cutting off contact and then leaving the adoptee to reinstate contact in their twenties or thirties or even later – point is, when THEY feel the desire and the maturity for it; seemed ok; when we’re talking about cutting off contact as a toddler and reinstating it at age 13 as a vulnerable teenager, through social media, perhaps sought out on a whim by the teenager, but perhaps sought out by the birth family, it’s a different story. Here I think it may be better for the child, for contact never to have been cut off in the first place. Supervised, carefully managed contact throughout the childhood years has got to be better (in many cases) than BM totally disappearing, then reappearing by Facebook message at teenager age. And I fear the latter is going to be more and more of a reality.

Better for the birth parents: Removing a child from a parent, and placing it for adoption, with no contact until age 18, seems like a very harsh ‘punishment’ for what in some cases may not have been big ‘crimes’. Even when it is totally right that a child is removed from their BM, it doesn’t have to mean that they have done anything deserving of such punishment. An adoptive placement with ongoing contact would mean providing for the child’s needs whilst at the same time not ‘punishing’ the BM more than necessary.

Better for the adopters: If adoptive parents can get over their own insecurities, then regular meetings with their children’s birth parents may in many circumstances enable them to have better understanding of their children’s past, and thus may enable them to be better parents to them. Also they won’t have to deal with issues such as the child idolising the birth parents, or seeking out unsupervised contact by Facebook etc. at a young age.

Of course there are equally many circumstances where direct, and sometimes even indirect contact, are totally contraindicated. This obviously needs to be taken into account. From fostering experiences it is known that some children absolutely hate having to go to contact sessions, and stop going as soon as they have any say in it. I can imagine that these children feel repercussions in other areas, such as never growing to feel that their foster carers really keep them safe, since after all the FC keep sending them to the contact sessions. Etc.

Over all, I get the impression that direct contact is one of the key issues which distinguish long-term fostering from adoption. (Of course there are many others, particularly legally). From my own, somewhat rambling thinking, I think this should not be the case. Adoption should become more like fostering, in that (circumstances permitting) direct contact remains in place. Fostering should become more like adoption, in that contact should not be unquestionable, should be something which is decided from case to case and the decision should be able to be revisited. Or in other words, in fostering as well as in adoption, direct contact should be sought if possible but stopped/not started at all, if not appropriate/detrimental to the child.

So the key question becomes, is it good or bad for the child. Since on paper, the child’s wellbeing is paramount anyway, I get the impression that people believe that direct contact is good for a (long term) foster child (where it is the default) but bad for an adoptive child (where it is exceedingly rare). I am willing to accept that this MAY be so, but I would be very interested in the reasoning behind it, and the scientific evidence for this reasoning.

It’s Not Always Easy

We are grateful for the following contribution from an adoptive parent. We know that adoption can be a hard and difficult option and it is best for everyone to go in with their eyes open and with genuine communication about the potential problems. We hope to increase the information available here about post adoption support and attachment difficulties.

The Bubble Wrapped Child by Helen Oakwater contains a good discussion about some of the emotional difficulties adopted children can have. Her website is here.

We are adoptive parents. We have birth children who are older than our adopted daughter. We are probably a bit conventional.

We adopted our daughter aged 6. That should have flagged up a lot of signals but we were optimists, believing that love and care would be enough. It wasn’t.

We were not told the truth about our daughter when she arrived, and we gradually found it out over the next 7 years. We were naive, in spite of our professional experiences. Do not expect to be told the full truth – some of it will be confidential, and even though it would help to know it, you may not be told.

Things got worse with puberty, and our daughter started demonstrating the fight or flight symptoms (we learnt later that she had Reactive Attachment Disorder and this was natural), but it was very stressful and we didn’t understand it.

There were problems, when we adopted her we were told that one day she may “revert to type”. We found this awful at the time, but later it came back to haunt us. Beware though, you may be blamed for the problems, even though it may not be you that have caused them.