Adoption is the legal process by which a child or group of siblings who cannot be brought up within their birth family become full, permanent and legal members of their new adoptive family. An adoption order ends the parental responsibility of any person or local authority and gives the adopters sole parental responsibility for the child. Where a birth parent does not consent to an adoption, the court can dispense with that consent if it determines that the parent cannot be found, lacks capacity to give consent, or if the child’s welfare necessitates it. 

A recent High Court case has highlighted the finality of adoption orders, emphasizing that they can only be revoked under exceptional circumstances. The case involved the birth mother of two children, aged 12 and 6 who were adopted in 2019 and 2018 respectively. She sought to overturn the adoption orders and gain contact with the children, but her applications were dismissed.

She alleged procedural and legal irregularities during the original adoption process, including duress, racism and insufficient consideration of her children’s welfare. However, Mr. Justice Trowell found no evidence to support these claims.

“The jurisdiction to revoke adoption orders is strictly limited to cases of fundamental procedural irregularity,” stated Mr. Justice Trowell. He noted the adoption orders were made lawfully and could not be overturned on welfare grounds.

The birth mother also sought permission to apply for contact with her children. The court denied her request, finding her ongoing refusal to accept the adoption posed a risk to the children’s stability. The judge cited evidence of potential harm, including her past comments to one of the children, such as her claim that “adopters kill the children they adopt.” While rejecting her application, Mr. Justice Trowell permitted the continuation of existing indirect “letterbox” contact but urged the birth mother’s messages be reviewed before being passed on to the children.

Mr. Justice Trowell emphasised that the welfare of the children, who are now settled with their adoptive families, remained the paramount concern.

In a different case the Court of Appeal confirmed that the court, not the local authority, is responsible for determining the nature and extent of post-adoption contact with the birth family. 

The Court of Appeal gave its judgment in the case of Re S examining the circumstances in which the family court might be expected to make an order requiring a child placed for adoption to have contact with a sibling who is not being adopted. 

Commonly adoptive families have arrangements for indirect contact with birth parents or siblings. Increasingly there are arrangements for some direct contact with siblings or birth parents. Despite this, there has been little change in the court’s approach to making orders for contact with birth families when children are to be adopted. In 2019 Sir Andrew McFarlane, President of the Family Division, said  that “it will only be in an extremely unusual case that a court will make an order stipulating contact arrangements to which the adopters do not agree” (Re B (A Child) (Post Adoption Contact) [2019] EWCA Civ 29).

The recent case of Re S reiterates the requirement for family court judges to focus on what contact arrangements will be in the best interests of each and every child being placed for adoption and may point to a likelihood of contact orders being made more often in the future. 

The case centred on whether the family court should make an order for direct contact between a boy aged two, ‘S’, who is to be placed for adoption and his brother ‘R’, aged eight, who is in long-term care. Both children had been removed from their parents’ care in proceedings brought by the local authority because the judge was satisfied that they were at risk of significant harm from their parents. Whilst R is to stay in long-term care, the court made a placement order for S. This means the local authority can start the process of finding prospective adopters for him, matching S with them, and placing him in their care. The prospective adopters would then apply to the court for an adoption order to become S’s legal parents. 

The local authority’s plan for S was that once he was placed for adoption, he would have indirect contact with R, but also direct contact twice a year so that the sibling relationship could continue. The court approved that plan. However, the question was whether the judge should make an order under section 26 of the Adoption and Children Act 2002,  requiring the prospective adopters to ensure direct contact between S and R, or whether there would an expectation of direct contact, that is not legally enforceable, meaning it would ultimately be a decision for the prospective adopters.  The judge decided there should not be an order for contact between R and S. His main reason was that an order requiring that there must be direct sibling contact would make it harder to find adopters for S, reducing the chance that he could be adopted at all. The birth parents appealed. 

Although the appeal was unsuccessful, the Court of Appeal gives important guidance for the family court to consider when determining future contact arrangements which are required in every case where a child is to be placed for adoption, as follows:

  1. There needs to be a distinction between direct contact with siblings and direct contact with birth parents.
  2. The risk of an order for contact deterring potential adopters cannot be the determining factor in every case. There will be cases – like Re S – where the risk of deterring adopters will lead the court to decide there should be no order for direct contact, but the court will need to see evidence that this is a real risk for children and not just a theoretical or generic risk. 
  3. The court may consider making an order that allows for some flexibility in birth family contact depending on how things are going as the child settles with prospective adopters, or setting a minimum level of contact  or it might consider in cases where no order is made recording its views and expectations for contact as non-legally binding recitals to the order.

Whether you are an adoptive parent or a birth parent our team is here to assist you with sensitivity with the adoption process. Contact Helen on 020 8290 7955 or email enquiries@wellerslawgroup.com