Will I ever see my child(ren) again?
Judges make adoption orders only if there is no other realistic option that will protect the welfare of the child. In other words, adoption is a last resort with significant consequences for all the parties. The birth parents lose all parental responsibility for the child. The order is final and difficult to challenge.
Very often, the birth parents seek to maintain a relationship with the child after adoption, but direct contact is very rare, and most commonly, the type of contact ordered is letterbox contact.
In November 2024, a report was published by the Public Law Working Group(PLWG) which recommends significant changes to adoption and in particular post adoption contact. The key recommendation is that there should be an ongoing relationship for the adopted child with their birth family, to include face to face meetings, unless this is unsafe. Read the report here.
Legal framework
By the time of The Adoption Act 1976, there was research suggesting that if children had no contact with their birth family, this could lead to serious disadvantages around their sense of identity. However, the 1976 Act made no provision to promote such contact.
The landscape for care proceedings took the first step towards promoting contact. Section 34 of the Children Act 1989 provides:
“Where a child is in the care of a Local Authority, the authority shall (subject to the provisions of this section) […] allow the child reasonable contact with—
(a) his parents…”
This legislation did not apply to adoption but made it clear that contact with a birth family was considered generally to be in the best interests of the child.
The Adoption and Children Act 2002 brought the adoption system closer in line with the care system, providing that a Court must consider the issue of contact before it could make an adoption order (Adoption and Children Act, s.46(6)), but this did not extend a duty to promote this contact.
In more recent years, The Children and Families Act 2014 amended the 2002 Act, inserting Section 51A which was the first legislative enactment that directly looked at post adoption contact, noting:
(2) “When making the adoption order or at any time afterwards, the Court may make an order under this section-
(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or
(b) prohibiting the person named in the order under this section from having contact with the child.
(3) The following people may be named in an order under this section-
(a) any person who (but for the child’s adoption) would be related to the child by blood (including half-blood), marriage or civil partnership;
So, by 2014 there was a requirement for the Court to consider post adoption contact and whether an order was appropriate. However, the PLWG report notes that case law and anecdotal evidence both suggest that s51 orders are very rare. The main provision for post adoption contact was still indirect, “letterbox contact”, in which adoptive parents and birth families exchange information by letter once or twice a year
It is only in the past few years that post adoption contact has been taken seriously. In 2022, the House of Lords Children and Families Act 2014 Committee reported: “The failure to modernise contact threatens to undermine the adoption system.” Sir Andrew McFarlane, the President of the Family Division, in a series of lectures further highlighted the need for greater understanding of the benefits of post adoption contact considered on a case-by-case basis.
Research
The report said that letterbox contact was the predominant form of post adoption contact, even though it often proved problematic.
“A high number of arrangements stall as a result of one (or both) parties failing to maintain the arrangement... This leaves many adoptees without any effective contact from birth families.”
At the same time, the report found that the research base was supportive of face-to-face contact. There are strong indications that face-to-face contact helped adopted children “develop a sense of identity, accept the reasons why they were adopted and move forward with their lives”. There was also considerable evidence that openness around the circumstances of the adoptee’s birth family was beneficial to the child, while the report also highlighted the “enduring sense of loss” that could occur from separating siblings.
However, it added that ensuring contact was safe was “pivotal to positive outcomes”.
General Recommendations
Recognising the evolving needs of adopted children, birth families, and adoptive families, Chapter 1 of the report emphasises a more dynamic and child-centred approach to contact that could bring significant changes both before and after contact takes place.
The PLWG makes six broad general recommendations to post adoption contact;
Change the approach to face-to-face contact
Greater consideration needs to be given as to whether there should be face-to-face contact between the child and their birth family. Whilst this won’t be safe in all cases, it is outdated for this to be the extremely rare exception.
Consistent training for prospective adopters
Regardless of who delivers training, there needs to be a consistent message that places lifelong needs of adopted children at its core, notably in relation to their sense of identity and the importance of communication and birth family contact to meet those needs. Training should include the available research and voices of those impacted by adoption.
Ongoing training for adoption practitioners
Social workers, lawyers and Judges should undergo regular training. This training should also include the voices of those impacted by adoption.
Signpost birth parents to independent support ASAP
Birth parents should be provided guidance, counselling and support. The requirement under ss. 3-4 Adoption and Children Act 2002 for support should be promoted. Birth parents should be encouraged to use a support worker and adoption agencies should be responsible for signposting parents to support. Cafcass or the Court should ensure this service is being offered and the care plan should prompt the social worker to ensure that it has been done.
Ongoing support for birth parents
Regional adoption agencies should offer or commission ongoing support. There should be a strong awareness among the agencies’ staff, and a clear presence on their website and printed materials, of how to access this support. Should these services not be taken up, independent advice and information services may be a way to enable reconsideration. Should these services still not have been taken up one year after the orders are made, adoption agencies should again approach birth parents.
Establish best practice guidance
There should be best practice guidance dealing with the approach of practitioners to post adoption contact and encompassing the recommendations of the report.
The Working Group’s general recommendations argue for a structured, supportive, and research-informed framework to post adoption contact. There are detailed recommendations for before and during proceedings, specifically for social workers, guardians, IROs, the Courts and others. Finally, the report sets out many miscellaneous, additional, overriding and other recommendations aimed at supporting post-adoption contact.
Practice during care and placement proceedings
During proceedings for care and placement orders, the Working Group recommends that social workers should further investigate which family members would be best placed to have contact with the child after adoption and carry out an assessment of anyone identified.
Practitioners should consider all possible forms of contact and balance the welfare benefits for the child against any safeguarding issues. They should then make a recommendation to the Court in the final social work statement filed in care and placement order proceedings.
The social worker’s evidence should consider practical issues (such as frequency, duration and location) in the case of face-to-face contact, and the use of digital platforms, in the case of letterbox contact.
Alongside the provisional recommendations for contact, practitioners should draw up a draft contact support plan for the Court’s consideration before the making of a placement order. This would form part of the child’s adoption support plan that would be subsequently drawn up with the prospective adoptive parents.
Comment
Clearly change is needed to meet the needs of birth parents, adoptive families and most importantly children. The report calls for a clear and stark shift away from letterbox only contact and towards consideration of a broader range of options. In our experience, letterbox contact rarely works well. It often breaks down due to a lack of commitment from either the birth family or adopters, and/or a lack of skills and support in knowing how to effectively communicate by letter.
The PLWG report emphasises the need to consider the individual circumstances of each child. By integrating the approach by those professionals involved and considering post adoption contact at all stages, there is more likelihood of meeting each child’s unique welfare needs.
The Working Group notes that there is a need for a meaningful but safe system allowing for support for lifelong contact with members of the birth families, where this is safe. Alongside this, prospective adopters, social workers, children’s guardians, and Judges need to change their thinking about post-adoption contact. A key point emphasised by the report is that any change in approach must be coordinated will all parties working on the same page as “Anything less is unlikely to bring about the wholesale change in the manner in which post adoption contact is managed.”
Next Steps...
Our family team are very experienced in dealing with all aspects of the law relating to children and adoption. For further information, visit our family law page or give us a call on 0800 011 6666.
