Tuesday, 9 July 2013

Contact after Adoption - Is it still the exception?

A Judge in the High Court has taken the unusual step of making an order providing for an adopted child to have a continuing relationship with his birth family.

The child – referred to as P-M in the Judgment – was seven.  He had lived with his foster mother since he was four months old.  She applied for an adoption order in relation to him. 

Before the court at the same time as the adoption application was an application by P-M's maternal grandmother for a contact order.  P-M’s half brother and sister were staying with her.  She had been having contact once a month with P-M by agreement.  She wanted a order confirming that that arrangement would continue.  The application was supported by P-M’s own legal team.  It was opposed by the local authority, who expressed concern that too much contact would blur boundaries for P-M.

The Judge, Lord Justice Ryder (sitting as an additional Judge of the High Court) heard evidence from all of the relevant players.  He found that the foster mother had provided P-M with excellent care.  He observed that a contact order in favour of P-M’s grandmother could generate an anxiety of its own that could be antithetic to the hierarchy of needs which were the very reason for an adoption order.  He considered that, despite P-M's relationships with his maternal family being important, they must take second place to the primary relationship between him and his foster mother. 

However, ultimately he considered that contact was in the child’s interests and was necessary for his welfare to be safeguarded throughout his life.  He made an adoption order in favour of the foster mother and an order for limited contact.

The law and procedure on adoption is found mainly in the Adoption and Children 2002.  That Act imposes a duty on the court before making an adoption order to consider whether there should be arrangements for allowing any person to have contact with the child.  Courts are usually reluctant to make orders for post-adoption contact in the face of reasonable opposition from adopters.  Whilst relations with birth family members are important, the critical and most significant consideration is to ensure that the adoptive placement is as secure, stable and happy as possible.  For that reason, it is extremely unusual for a contact order to be imposed if the adoptive parent or parents oppose it. 

This is also consistent with the theory of adoption.  A child who is adopted legally becomes a member of the new family.  He or she stops legally being a member of his or her birth family.  The adopter/s obtain parental responsibility for the child.  Any person who had parental responsibility prior to the adoption order being made automatically loses it.  So, for all intents, the successful adoption process leads to the child becoming a permanent and full member of the new family. 

But for older children, who know and have important emotional ties with birth family members, it might well be in their interests for contact to continue post-adoption.  That was the conclusion Lord Justice Ryder reached here.  He decided that P-M's welfare throughout his life required the maintenance of a relationship with his maternal grandmother and sister through whom there would be a relationship with his extended birth family.  The contact should contribute to the child’s reassurance and stability - his feeling of identity - without creating a risk of disruption.  The key issue was which arrangement was best able to provide for P-M’s needs having regard to the effect on him during his life of ceasing to be a member of his birth family.

The Judge was keen to emphasise, however, that whilst on facts of the case adoption was not antagonistic to contact, if the court had to choose between adoption and contact, it would unhesitatingly favour adoption.

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