Prospective Adopters v Lincolnshire County Council & Ors

This matter came before me when sitting on Circuit in Lincoln to determine a number of applications with respect to a little boy AB, who is now almost 2 ½ years old. AB has an older brother C who is 5 ½ years old. AB lives with his prospective adopters, PA, who are also the adoptive parents of C. AB has lived with PA and C since he was placed with them for adoption on 12^th September 2024 pursuant to a placement order made by HHJ Reece on 6^th June 2024. On 3^rd December 2024, PA made their application for an adoption order with respect to AB.

AB also has a younger brother, D, who is 12 months old. Unlike his older siblings, D has remained in the care of their birth mother, BM. Care proceedings for D concluded on 25^th July 2025 with a final supervision order for 12 months. BM is a care leaver and has faced a number of challenges in her young adult life, notably a volatile and abusive relationship with BF, who is AB and D’s father, substance misuse issues, vulnerable mental health and a poor working relationship with professionals.

It is enormously to BM’s credit that since the care and placement orders were made with respect to AB she has managed to make and sustain significant changes in her life, such that D was able to remain safely in her care. In the last few months there have been some issues of concern, principally resulting from contact between BM and BF, but BM continues to make good progress. No-one suggests D should not remain with his mother.

It was against that backdrop that on 29^th May 2025, HHJ Weston KC, the then DFJ of Lincoln, gave permission to BM and BF to oppose the adoption. Applications were also made by the birth parents for contact orders under s 26 and s 51A of the Adoption and Children Act 2002. When the final hearing commenced before me, BM continued to oppose the adoption, seeking the return of AB to her care. In the alternative, she sought for a post-adoption contact order to be made under s 51A of the Adoption and Children Act 2002 which would secure direct face to face post-adoption contact between AB and C and their sibling D and between herself and the two children. Sadly, the positive progress that appeared to have been made by BF has not been sustained. In recent months he has disengaged from proceedings and played no part in the final hearing.

The position of PA is that they support ongoing letter-box contact between the children and BM and D, and are open to an exchange of videos for the siblings. However, although they are not opposed to considering direct contact between the siblings and between AB and C and BM in the future, they do not believe that such contact is currently in the children’s best interests and therefore oppose being bound by an order. They wish to retain the flexibility to manage and progress contact with D and BM as is consistent with the children’s changing and developing needs. PA’s position is supported by the local authority, as the adoption agency and the children’s guardian.

I am grateful for the assistance of all counsel who appeared before me. PA were represented by Ms Hodges. BM was represented by Mr Clulee. The local authority were represented by Mr Frow. AB and C were represented through their guardian, Ms Petrasun, by Mr Ekaney KC and Ms Bates. I am grateful for the collaborative approach taken by everyone outside of court to secure an outcome to these proceedings which is in the best interests of all the children.

The Court can gratefully draw on the exposition of the law with respect to post-adoption contact as set out by counsel for the local authority and BM in their opening note/skeleton arguments.

In recent years, there has been much debate about the merits of post-adoption contact and the normative role that can or should be played by the law in helping to effect a cultural shift in attitudes towards more open adoption. It has been argued by some that the law should be more proactive in recognising the potential value of post-adoption contact in promoting the welfare of adopted children; a greater willingness to make contact orders under s 26 or s 51A on the facts of an individual case would reflect such a shift in approach.

As is helpfully set out by Mr Clulee, the most recent contribution to that debate has been the Public Law Working Group: adoption sub-group ‘Recommendations for best practice in respect of adoption’, November 2024.The Working Group recommend at paragraph 71:

There needs to be a sea change in the approach to the question of face-to-face contact between the adopted child and the birth family or other significant individuals. Greater consideration needs to be given, throughout the child’s minority, as to whether they should have face to face contact with those who were significant to them before they were adopted. It is recognised that this will not be safe for all adopted children, but the current system whereby face-to-face contact is the exception rather than the rule is outdated.

The report identifies the changes that may be required in social work practice and post-adoption support services to achieve the changes in post-adoption contact they discuss:

90.

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…

93.

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.

The Working Group also envisages a potential role for s51A contact orders in facilitating that ‘sea change’ in approach, observing:

Courts should consider, in the right case, the use of section 51A ACA 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.

However, as the report goes on to discuss, despite the moves towards open adoption more generally, the approach of the courts to the making of post-adoption contact orders has not significantly changed.

Section 51A was inserted into the Adoption and Children Act 2002, by s 9 of the Children and Families Act 2014. It provides:

S 51A (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.

A birth parent requires the Court’s leave to make an application under s 51A. In determining such applications, section 51A (5) provides:

(5)

In deciding whether to grant leave under subsection 4(c), the court must consider –

(a)

any risk there might be of the proposed application disrupting the child’s life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act),

(b)

the applicant’s connection with the child, and

(c)

any representations made to the court by –

(i)

the child, or

(ii)

a person who has applied for the adoption order in whose favour the adoption order is or has been made.

In determining a substantive application under s 51A, section 1(2) of the ACA 2002 applies, making the child’s welfare through his or her life the court’s paramount consideration.

Although the legislative reforms contained within the ACA 2002 (s 51A now sitting alongside s 26 which governs contact whilst a child is placed for adoption under a placement order) have also been described as constituting a “sea change” in post-adoption contact, the approach of the courts when they are seized of disputes over such issues has not materially changed.

In Oxfordshire County Council v X, Y & J [2010] EWCA Civ 581 Lord Neuberger MR, whilst acknowledging the “clear change of thinking” contained within the ACA 2002, held that when dealing with the “delicate question of how far the court can or should go in imposing on adoptive parents obligations which they may be reluctant to assume voluntarily”:

34.

It is a strong thing to impose on adoptive parents, it is ‘extremely unusual’ to impose on adoptive parents, some obligation which they are unwilling voluntarily to assume, certainly where, as here, the adoption order has already been made. Was there a proper basis for taking that extremely unusual step? In our judgment, there was not. The judge found that the adoptive parents were genuine when they express their concerns, so what was the justification for imposing on them something they conscientiously and reasonably objected to, particularly when, as we have seen, they say that they have not ruled out the possibility of letting the natural parents have photographs in the future? As we have said, they are not to be saddled with an order merely because a judge takes a different view. The adoptive parents are J’s parents; the natural parents are not. The adoptive parents are the only people with parental responsibility for J. Why, unless circumstances are unusual, indeed extremely unusual - and here in our judgment they are neither - should that responsibility be usurped by the court? We can see no good reason either on the facts or in law. On the contrary, there is much force in the point they make, that they wish their status as J’s parents to be respected and seen to be inviolable – not for themselves but in order, as they see it, to give J the best chance for the adoption to be successful.”

Significantly, the President endorsed this approach following the coming into force of s 51A in the decision of Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29. The President held:

52.

The starting point for any consideration of this issue must be the settled position in law that had been reached by the decision in Re R, which was confirmed by this court in the Oxfordshire case and in Re T. The judgment in Re R was, itself, on all fours, so far as imposing contact on unwilling adopters, with the position described by Lord Ackner in Re C.

53.

As stated by Wall LJ in Re R, prior to the introduction of ACA 2002, s 51A, the position in law was, therefore, that ' the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.

54.

Although s 51A has introduced a bespoke statutory regime for the regulation of post-adoption contact following placement for adoption by an adoption agency, there is nothing to be found in the wording of s 51A or of s 51B which indicates any variation in the approach to be taken to the imposition of an order for contact upon adopters who are unwilling to accept it.

In Re G (A Child) [2020] EWFC 94, Judd J declined to make an order for post-adoption contact, in circumstances where it was recognised direct contact could be in the child’s best interests, reiterating that save for in very unusual circumstances, adoptive parents must be free to make their own decisions as to what is in the best interests of their child. Judd J nevertheless expressed the hope that the adopters would see the advantage of contact.

In what might be considered a slight shift in approach, in the recent case of Re S (Placement Order: Contact) [2025] EWCA Civ 823, and in the context of a dispute over the making of an order under s 26, the President drew a distinction between “cases where continuing direct sibling contact is considered to be necessary for the child’s future welfare, and cases where the achievement of an adoptive home is the overarching goal, with future sibling contact being desirable as opposed to a pre- requisite.” The President observed that:

In the former circumstances (as in Re P and Re R) the court has ‘a responsibility’ to make a s 26 contact order. As Baker LJ held in Re R, each case will fall to be determined on its own facts. The two authorities where an order was made were cases where to do so was justified by the degree of importance that continued sibling contact had as part of the overall adoptive plan.

In accordance with s 1 of the ACA 2002, each case must be determined on its own facts in accordance with the overriding welfare imperative. Underpinning the lead authorities, whenever considering a child’s welfare in the context of adoption, is recognition of the importance of protecting the stability of the adoptive placement and, within that, to respecting and upholding the exercise of parent responsibility by the adopters to make decisions that best meet the child’s needs. The courts must however remain open to the possibility on the individual facts of a case that the importance of post-adoption contact with birth siblings, parents or relatives in promoting the child’s welfare throughout his or her life, will outweigh concerns about acting against the wishes of the adoptive parents and the possible impact on placement.

Following discussion between the Court and the parties at the outset of the hearing, the issues in the case significantly narrowed. Much to BM’s credit, she recognised that in considering AB’s welfare throughout his life, the Court had to look beyond the progress she had made and her capacity to now provide safe and good enough care. BM accepted that AB was happy, thriving and settled in the care of PA, alongside his brother C, and it would not be in his best interests to disrupt the secure and stable attachments he had now made, to place him with his mother and D. Indeed, she acknowledged that to do so risked causing a little boy who has already endured significant adverse childhood experiences, further emotional harm. Following discussion with her counsel, BM, who has been guided throughout by her desire to do what his best for AB, C and D, therefore confirmed she would not actively oppose the making of an adoption order.

BM did however wish to pursue her application for a contact order under s 51A of the Adoption and Children Act 2002. Her primary position was that she wished to secure direct fact to face contact between the 3 siblings. As a secondary consideration, she also wished to be able to join that contact if possible.

As the making of a contact order remained opposed by PA, the Court heard brief oral evidence from the adoption social worker from Lincolnshire County Council, Ms Jennings. What was clear from her evidence was the willingness of the adoption agency to provide ongoing support to PA, BM and the children in providing a mechanism for the ongoing review of contact arrangements to ensure they continued to meet the children’s needs, and to ensure any progression of contact beyond the agreed indirect arrangements to include potentially direct face to face contact, could be professionally supported at the point such arrangements were considered to be in AB and C’s best interests. That clear commitment allowed the parties having heard her oral evidence to reflect on their positions and work together to agree a post-adoption contact framework.

The dilemma facing the parties in this case is that whilst PA recognises the life-long importance to the children of the birth sibling relationship, and the potential role to be played by BM in AB and C’s understanding of their life story and in helping them to develop a positive and secure sense of identity, the paramount need of AB and C at the current time is to be able to settle securely into their adoptive home and continue to build and strengthen their primary attachments to one another and PA. Both children, having suffered considerable disruption in their early years, demonstrate a high level of attachment insecurity and emotional need. C, in particular, requires very sensitive, attuned, therapeutic parenting to manage his emotional behaviours. The re-introduction of direct face to face birth family contact at the current time would be likely to cause confusion and prove unsettling and distressing.

It is not therefore the position of PA that contact should never progress from indirect exchange of letter box contact to direct face to face contact, but given the needs of the two children, they say now is not the right time. They are clear they are open to such contact, but only when AB and C are emotionally secure and settled. They cannot say when that point will be reached. They would also like reassurance that the progress BM has made will be sustained and that she can be consistent in her commitment to maintaining post adoption contact with AB and C, in whatever form that contact takes.

BM, again to her credit, recognises the paramount importance for AB and C of ensuring their successful integration into PA’s family. She was cognisant of the need not to disrupt that process in any way. She did, however, remain firm in her position that maintaining birth family relationships for AB and C would also promote their long-term welfare interests, particularly their relationship with D, and that this aspect of their welfare also needed to be protected. Her fear was how those crucial relationships could be safeguarded, and the potential for progression to direct face-to-face contact, could be kept under review without the ongoing involvement of professionals and ultimately the oversight of the court.

The Court recognises that the answer will not often be found in an order under s 51A of the ACA 2002. As this case demonstrates, the needs of AB, C and D will continue to change and evolve. The professionals are all clear that direct face to face contact with D is not currently in the interests of AB and C. However, it is anticipated a point will be reached, perhaps in the not too distant future, when such contact will play an important part in promoting their welfare, as may direct contact with BM. An order under s 51A imposed on PA, and which provides for some minimum level of post-adoption contact to try and ensure those relationships are not lost, is a blunt and ineffective instrument in such circumstances; it will not meet the obvious need of the children, PA and BM for professional support and flexibility to meet the changing needs of the children over the years ahead.

The Court is therefore grateful that AB, C and D have been able to benefit from a “sea change” in thinking by this local authority in how they deliver their post-adoption support services that has enabled the parties to agree a child focused post-adoption contact framework. At the heart of the framework is recognition that adopted children and their families may need ongoing professional support and assistance to ensure the children’s sometimes complex needs are met throughout their childhoods and beyond. The children’s needs do not end with the making of a final adoption order. Thus, the framework agreed within this case sets out clear provision for ongoing support for both PA and BM, a process for ongoing review of the children’s developmental needs and ongoing consideration of whether progression of contact is in their best interests with professional oversight and support. The framework provided all parties with the reassurance they needed that professional support would continue. For BM, it provided the specific reassurance she needed that AB and C’s relationship with D, and in due course if appropriate with her, would not be marginalised or forgotten once the adoption order was made. In those circumstances an order under s 51A was not pursued.

This court frequently observes that whilst adoption offers life-long stability, security and love to children who cannot be safely cared for within their families of birth, it also too often comes with the sad loss of birth family relationships in circumstances where those relationships have the potential to play an important role in the life-long welfare of the child. That loss is not inevitable. The approach taken by all parties in this case recognises adoption as a life-long journey in which professional involvement and support may be needed at various points to support and assist adopted children and their families to navigate the complexities of these relationships. Appended to this judgment is the framework for post-adoption contact agreed between Lincolnshire County Council, PA and BM. The Court hopes it may be of assistance to other adopted children and their families.