Key Takeaways from the Public Law Working Group Report: A ‘Sea-Change’ Approach in Post-Adoption Contact?

Introduction

The Public Law Working Group (PLWG) was established by the President of the Family Division, Sir Andrew McFarlane, to explore several issues in the family justice system and to provide recommendations of ways in which to change and improve the system we, as practitioners, currently work in.

On 7^th November 2024, the PLWG adoption sub-group, chaired by Mrs Justice Judd, had released its report in respect of recommendations for best practice in respect of adoption. Those recommendations were:

1. There needs to be a change in face to face contact between adopted children and birth families, with training and greater support and counselling for birth parents.
2. There should be a national protocol for a standard procedure for access to records applications.
3. In order to simplify the extremely complex system of adoptions with an international element, the statutory framework should be rewritten so that it is contained in one single Act of Parliament. In the meantime, there is an urgent need for written guidance.
4. A national strategy for adoption by consent cases needs to be developed, including training for all, better access to legal advice for parent(s) before the birth, and that local authorities bring proceedings straight away, and that they are listed urgently.

This article will focus specifically upon the report’s recommendations in relation to post-adoption contact as the issue of contact is one of the core features of care planning that is commonly grappled with by legal practitioners in care proceedings.

The current landscape of post-adoption contact

It is commonly accepted that, in terms of applications for placement orders for children in care proceedings, the Local Authority routinely puts forward a plan of indirect letterbox contact between birth parents and adopted children. Certainly, it is not unheard of that there have been applications for post-adoption contact however, the reality is that they form a very small minority of cases for children who are to be adopted. 

The report had acknowledged that whilst there has been a great deal of research in recent years as to the potential advantages to adopted children of maintaining some sort of face-to-face contact with the birth family, it remains unusual for the care plan for children who are going to be placed for adoption to propose more than indirect or letterbox contact.

In coming to its recommendations, the report had taken the opportunity to highlight a number of key factors which were considered at Paragraph 65 of the report, namely:

• There is considerable evidence that transparency and openness around the circumstances and experiences of the adoptee’s birth family is beneficial to an adopted child. 
• The purpose of contact post-adoption is for the adoptee about enabling a process to help them understand their experiences and develop a sense of identity. Existing relationships with birth parents must change to take into account their different role as a result of the legal process of adoption. 
• Separating siblings can lead to an enduring sense of loss. 
• There are strong indications that face-to-face contact helps adoptees develop a sense of identity, accept the reasons why they were adopted and move forward with their lives.
• However, ensuring that contact is safe for the child is pivotal to positive outcomes.
• Communication with and understanding from the parties involved in contact (birth parents or other relatives/adoptees/adopters) is an important component in its success. 
• Despite the research indicating the benefits of face-to-face contact, where it can be safely managed, the overwhelming majority of cases continue to recommend only letterbox contact. Where direct contact does occur it often happens without any formal agreement being in place. Letterbox contact can prove 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. 
• The experience in Northern Ireland tends to suggest that a shift in mindset by professionals involved in the process of adoption and strong guidance from the judiciary can bring about a change in approach to post adoption contact without the need for changes in primary legislation.

General Recommendations (including recommendations at a pre-proceedings stage)

Having consideration for those points above, the report makes several recommendations which can be found at Paragraph 71 of the report onwards:

• The report has recommended a sea change in the approach of direct contact between an adopted child and the birth family or significant individuals. It is recognised that direct contact may not be safe for all adopted children but the current system whereby direct contact is the exception rather than the rule is outdated.
• There should be consistent training for prospective adopters across England and Wales which focuses on the lifelong adoption related needs of children in relation to their sense of identity and loss of their birth family and the importance of open communication and birth family contact in helping to meet these needs.
• There should be ongoing training for social work practitioners and lawyers on the benefits of open adoption.
• Birth parents should be signposted to independent support relating to how they can continue to be involved in their child’s life throughout different types of contact as soon as adoption is identified as a possible outcome.
• There should be an identification of persons who are/may be important to a child which should be undertaken at the Family Group Conference and during any pre-proceedings kinship assessment stage. There should also be an eco-map prepared in the genogram section for SWETs which highlight ‘important relationships’ for the child.
• There should be specific guidance as to the prospective roles of child protection social workers and adoption social workers including a clear expectation of when they will begin liaising. The report recommends that early liaison with a specific named adoption social worker (at the point where adoption is within the contemplation of the local authority or the court) would be helpful so as to enable an early exchange of information, a consultation around proposed contact plans and a smooth transition should a placement order be made;
• The full range of contact options (including digital options) should be actively considered by professionals and the court during care and placement proceedings rather than an assumption that contact will be via letterbox only.

Breaking down the recommendation of consideration of contact in cases where adoption is being sought by a local authority

In making this recommendation for the full range of contact options to be considered by professionals and the court, the report provides a helpful set of specific recommendations (from Paragraph 82 onwards) for the relevant professionals and the Court as to how they may address the issue of post-adoption contact.

For social workers, the report’s recommendations are summarised below:

• Social workers should be undertaking an investigation of the family members who may be able to contribute positively to contact after the subject child is adopted.
• An assessment of the ability of an identified person to maintain contact post-adoption should be undertaken within the final care/placement order statement (potentially by the adoption social worker). This can then be referred to and reconsidered at the time the adoption order is made.
• The final social work statement for care and placement proceedings should set out a consideration of all forms of contact and a balancing of its welfare benefits for the child against any safeguarding issues so that the social worker can provide a recommendation which meets the needs of the child. If direct contact is not considered to be beneficial then it should recommend whether the present case is one where a reconsideration of direct contact should take place at a later stage and if so that consideration should form part of the adoption support plan;
• Any recommendation needs to consider the potential practical arrangements. For direct contact, this should consider duration, frequency and location along with a recommendation as to the level of contact after the placement order is made but before the adoption order. 
• If direct contact is recommended, the presence of the adopters will need to be considered along with who should be present from the birth family. (The report recommends that, in most but not all cases, prospective adopters should be present) 
• The birth family will need to have a clear understanding of what is expected of them and why those expectations may be helpful to them and the child which can form part of a written agreement.
• Should letterbox contact be recommended there should be exploration of the digital platform (as it becomes more widely available) and other digital options which might better support the process of letterbox contact. The report recommends that at the time a placement order is made that the details of such a plan may be provisional but by the time the adoption order is being considered, there should be a clear plan which has been drafted with the provisional plan in mind and has been discussed with and approved by the adopters and all parties involved in the contact.
• The report recommends an emphasis on post-adoption contact in the final care plan (requiring the input of the adoption social worker) including a section setting out important relationships and the support that might be necessary to the child, the prospective adopters and the identified birth family member to enable any contact (whether written or face to face) to be safe and meaningful.
• Specific consideration of sibling contact will need to be undertaken and targeted work may need to be undertaken with siblings and their carers to facilitate this. This needs to be considered within the care and placement order proceedings to ensure that there is no gap in direct contact should it be indicated.
• A contact support plan should be available in draft form for consideration by the court before making a placement order. A completed version of the contact support plan will form part of the adoption support plan which will be carefully formulated with input from the adopters before the making of an adoption order.
• There should be agreement between social work practitioners as to who should complete the life story work/book and the timescale for completion. This should be clear by the time the placement order is made.

For children’s guardians, the report recommends that the final analysis should address whether the investigation of post-adoption contact has been broad enough and should consider the welfare benefits of any recommendation made both at the stage where the placement order is being made and into the future.

For the courts, it is recommended that consideration should be given to orders for contact under  s.26 Adoption and Children Act 2002. These would be for contact arrangements beyond the point of a placement order being made however, such orders would end when the adoption order is made. The report does highlight that such orders may set the tone for what is planned will happen after the adoption order, ensure that long gaps in the planned contact do not occur, and allow for a period of time for the proposed contact to be actively supported by the adoption agency.

In addition, the report recommends that the Courts should consider, in the right case, the use of s.51A Adoption and Children Act 2002 which contemplates the making of a contact order now or at any time after the making of an adoption order. In some cases, that provision may be used to facilitate a review of contact by the court at a suitable time after the making of the adoption order, for example where direct contact is not appropriate at the time of the order but may be indicated at a time in the foreseeable future.

The report does recognise however, that an order on unwilling adopters is a very serious matter and recognises that the Court of Appeal had given guidance on the limits in which such an order is appropriate in the case of Re B [2019] EWCA Civ 29

Further recommendations

The report had also provided some additional recommendations from Paragraph 83 onwards in respect of post-adoption contact, the vast majority of which would be particularly relevant for local authorities to have in mind:

• Adoptive parents should, as a matter of course, write a settling-in letter to the birth family.
• Consideration should be given in every case to a meeting between the adopters and members of the birth family.
• Later life letters from the birth family (in addition to the one prepared by the social worker) to the adopted child should be considered and timetabled
• Life story books should be available by the time the adoption order is made and should include reference to all those people who have been identified as important to the child.
• Examples of post adoption agreements and future contact plans should be drawn up and circulated nationally at this stage.
• There should be a continued line of communication between the adoption social worker and the birth parents so that the adoption social worker can reassess the ability of a relative/other to have contact post proceedings and to ensure support is available should any contact arrangement begin to falter. The report highlighted that one of its recommendations earlier was a contact support plan should be available in draft form at placement order stage and should contain a reasoned and clear position on post adoption contact. This document could be cross referenced against the final adoption support plan which will be available at the point the adoption order is made.
• Any documents shared with prospective adopters about the birth family should be balanced in their approach.
• After the adoption order is made, periodic reviews of contact plans should be offered by the adoption social worker to ensure the plan is still meeting the child’s needs and to consider any changes to the contact or support for contact that might be needed.
• Exploration of use of digital platforms to enable indirect contact to be undertaken in that manner if appropriate.
• Direct contact should be expected to continue in early permanence placements (concurrency, fostering for adoption) where it has been working well. Any obstacles should be fully explored and addressed.
• Social workers should, where necessary, manage and support direct contact by helping all parties prepare for, manage and de-brief after contact attending to adult-adult interactions as well as child- adult interactions. They will need to be sensitive to the fact that trauma effects may surface after contact. The adoptive parents should, if possible, be present during contact.
• Adoptive and birth families should have a named worker they can approach in respect of letter box contact provisions.
• More courts judgments to be published in full where contact has been a feature.
• As a minimum, all siblings who are not placed together should receive the information suggested in the “Charter for Siblings” set out in Beckett’s ‘Beyond Together & Apart’ practice guide.

It should be noted for those practitioners working for the Local Authority that the PLWG report has appended some helpful examples of contract of expectations/working agreements for post-adoption contact which start from Page 50 of the report.

Conclusion

It is clear from the totality of the report that there is a significant drive to reform this area of care planning for a child which has come about from developments in research into the area of post-adoption contact.

Having in mind the recommendations which have been set out above, it is apparent that any meaningful change in this area can only come about from a change in approach from local authority social workers. The reality is that many care plans currently put forward to Judges in care and placement proceedings continue to put forward indirect letterbox contact between children and birth parents with very minimal, if any, analysis as to the benefits and shortcomings of such an option nor do such care plans normally consider other forms of contact. 

It is therefore clear that, to effectively implement these recommendations, a ‘sea change’ is required in the approach to post-adoption contact as the PLWG report had highlighted and does indicate that it would appear social workers may currently have a fixed view on the issue of post-adoption contact for children and birth parents when preparing care plans.

Looking at the situation practically, it doesn’t appear that a change of approach is going to come about immediately or even in the short term. Certainly, one solution is for guidance to be issued by the local, regional and national judiciary which would no doubt be effective however, it seems that the most critical issue which needs to be addressed as soon as possible to bring about change would be further training for social workers and practitioners on the benefits of open adoption so that future care planning can be undertaken with an open mind on the issue of post-adoption contact.

At this stage, the recommendations from the report have been welcomed by the President of the Family Division and so it does appear likely that practitioners can expect change is going to be coming for this area of the family justice system however, given the report has been released only very recently, the real question is when we will be seeing such change being implemented.

Written by Amjad Kadhim, Consultant Barrister at Unit Chambers

Law is correct as of 28th November 2024. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.