The Child and Families Act 2014 (CFA) was enacted in March 2014 and has fundamentally changed the impetus of what Parliament see as important within family structure. Prior to April 2014, an order for a child arrangement, formerly known as a contact order, could only be made under section 8 of the Children Act 1989. However, Section 9 of the CFA has amended this with the Adoption and Children Act 2002 (ACA), with the insertion of section 51A and 51B. These provisions now provide the court with a specific power to make an order for post-adoption contact when the court is making an adoption order or when an adoption order has previously been issued.
Adoption in the UK primarily concerns the placing of children from the public care system, often against the parents’ wishes. Most of these children have a plan for the type of contact they will have with their birth family, however, a significant minority of children have direct contact (face-to-face) contact with parents, grandparents, siblings or other relatives.
Traditionally, courts have favoured a complete break approach from the child’s biological family following the issuing of an adoption order, as these orders were seen as draconian and not a decision entered into lightly. Advocates for the traditional approach believe that maintaining a parental link post-adoption to be at odds with the overall principle of adoption itself. It is clear that Parliament do not share this view with amendments making specific modifications to facilitate post-adoption contact.
The Children Act 1989 and the Adoption and Children Act 2002 place the courts under a duty to consider the child’s welfare as the paramount consideration in determining matters relating to contact. Section 1(4)(c) and 1(4)(f) ACA 2002 specifically set out that the courts must consider the meaning of the welfare provisions relating to the impact on a child of not being within their birth family prior to the making of Family Law orders.
Previously viewed as a significant risk to the child’s welfare, courts have taken a very restrictive approach and granted natural parents direct contract with the child only in very exceptional and limited circumstances. There is, however, no reason to believe that courts will vary from this approach despite new opportunities for birth parents to petition courts to consider post-adoptive contact from a wide variety of potential applicants.
The legislative changes, although allowing for the potential of post-adoption contact applications, still impose restrictions on who may apply for these orders (Section 51A (3)(a)-(e) ACA 2002) while it also being necessary to obtain leave from the court to make an application under s.51A(4)(c) of the ACA 2002.
Although some commenters argue that the new Act represents an acceptance by Parliament that context post-adoption can assist in furthering the well being of the child in the new placement. Others believe that the new Act is merely symbolic and the courts are unlikely to alter their restrictive position in the view of statutory changes.
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