BM v AM

This judgment arises from an application made by the birth mother of a child who wants to have direct contact with her child who has been adopted. The application is opposed by the adopter whose position is supported by the local authority and the child’s guardian.

Given the sensitivity of this application, I have anonymised the names of the parties.

I shall refer to the child as X, the birth mother as BM, the birth father as BF, the adoptive mother as AM and the guardian representing X as CG. The local authority involved with X is the London Borough of Southwark (“the local authority”). Given their interest in these proceedings, they asked to attend the hearing as an interested party.

The court was provided with various bundles containing the case papers which included relevant reports, statements and documents as well as legal authorities. The parties also filed position statements.

The parties were all represented. I am very grateful to the advocates for the professional and sensitive way they presented their cases.

BM was in court throughout the hearing. BF played no part in the application. AM attended remotely with a link to her Counsel in court.

By way of background, X is a little girl who is now four years old. The local authority has been involved with her birth family for some years. It issued proceedings in late 2020 regarding X which reached a final hearing before me in July 2022.

After a hearing over ten days when the court heard extensive evidence, in a written reserved judgment which ran to thirty-five pages, the court concluded that the threshold to make a final care order had been passed. The extensive evidence referred to BM’s lack of insight, neglect, a serious lack of hygiene in the family home, a lack of empathy, a failure to protect another child of the family from sexual abuse and critical deficits in her parenting.

When considering if a final care order should be made and whether the local authority’s application for an order allowing X to be placed for adoption should be granted, the court considered various options for X’s care which ultimately were not viable. Final care and placement orders were therefore made. The court’s decisions were not appealed.

In February 2023, X was matched with AM and the following month, BM had a last contact session with X. In July 2023, AM applied to the court for an adoption order and in September 2023, BM applied to seek permission to oppose the granting of an adoption order. She also sought contact with X.

In December 2023, the court heard BM’s application to oppose the adoption order. After a fully contested hearing when the court heard evidence as well as full submissions from the parties, BM was refused leave to oppose the adoption application. That order was not appealed. BM’s application for post-adoption contact was adjourned being premature as no adoption order had yet been made.

The substantive application for an adoption order was heard in February 2024 when a final adoption order was made in favour of AM. Thereafter, BM’s post-adoption contact application was listed for a hearing in March 2024.

At the March 2024 hearing, AM produced a report from CAMHS which advocated against contact between BM and X. The court was also informed that later that month, AM had agreed to meet BM. The court therefore adjourned the contact application for nine months to allow CAMHS to undertake more work with X and also hoping that the meeting between BM and AM would yield an agreement as to the way forward without further recourse to the court.

Meanwhile, CG had started to work with the family. Concerned for X, she applied some time later to the court to bring forward the determination of the contact application which led to this hearing.

The position now is that BM seeks direct contact with AM once or twice each year. She also wants letter box contact to be properly set up for her and X’s siblings.

AM is not opposed to direct contact but maintains that now is not the time for it to start. Her position is that she would be guided by the professionals working with X as to when direct contact was appropriate for X and at that point, she would have no objection to it taking place. Meanwhile, AM had no objection to indirect contact between X and BM and her siblings. CG and the local authority supported AM’s position.

I turn now to the law.

The relevant legislation is the Adoption and Children Act 2002. The starting point is section 1 which addresses the court’s approach generally when dealing with matters, namely:

Section 51A of the Act addresses post-adoption contact. Section 51A(1)(b) provides that it applies when the court is “making or has made an adoption order in respect of the child” which it has done in this matter.

Section 51A(2)(a) sets out the powers of the court regarding contact in the following terms:

BM as X’s birth mother is allowed to make the application as she comes within section 51A(3)(a) being a “person who (but for the child's adoption) would be related to the child by blood…”

BM also needs to obtain the court’s permission to make the application. Section 51A(4) provides that:

An application for an order under this section may be made by—

Section 51A(5) sets out the matters to which the court must have regard considering whether or not to grant leave to make the application as follows:

Once the question of leave is decided, the court then turns to the substantive application for contact.

In this regard, I have been referred to and considered a number of authorities which address the issue of post-adoption contact including Re C (Adoption Contact) [2005] EWCA Civ 1128; Re T [2010] EWCA Civ 1527; Re C (A Child) (Adoption by Foster Carers) [2024] EWFC 87; Re B (A Child) (Post Adoption Contact) [2019] EWCA Civ 29; Re R and C (Adoption or Fostering) [2024] EWCA Civ 1302. These authorities in turn refer to other cases. The parties’ position statements also set out the relevant law which is not in dispute.

The principle for many years was that a court should not make an order for post- adoption contact with members of the birth family against the wishes of the adopters save in “exceptional circumstances”. Lord Justice Baker in Re R and C referred to this principle as having been “firmly applied.”

The introduction of section 51A was at a time when the thinking was more towards a concept of “greater openness in terms of post-adoption contact” (per Sir Andrew MacFarlane P in Re B).

However, as Lord Justice Baker remarked in Re R and C:

“30.

In the event, any "sea change" in the years following the implementation of the 2002 Act did not extend to a wider imposition of orders for post-adoption contact against the wishes of the adopters. In subsequent cases, this Court reiterated the principle that it would be extremely unusual to impose on prospective adopters orders for contact with which they were not in agreement…”

He said further:

“31.

Following the introduction of s.51A, the issue was reconsidered by this Court in Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29. In that case, Sir Andrew McFarlane P (in a judgment with which the rest of the Court agreed) summarised the position as follows:

"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.

In November 2024, the Public Law Working Group’s adoption sub-committee published a report entitled “Recommendations for best practice in respect of adoption.”

The report considered the issue of post-adoption contact saying that “we recommend that there needs to be a greater focus on the issue of contact with the birth family as long as it is safe.”

Referring to the provisions of section 51A of the ACA, it noted that there was “little reported case law to suggest that these provisions are being actively used” and that there needed to be a “sea change in the approach to the question of fact-to-face contact between the adopted child and the birth family or other significant individuals.”

Equally though, the report recognised that “imposing an order on unwilling adopters is a very serious matter, and that the decision of the Court of Appeal in Re B outlines the limits in which it is appropriate. Adoptive parents will need to be fully involved in decisions about contact with a strong emphasis on the needs of the child.”

I turn now to the evidence.

L is the social worker who has worked with X since 2022. She filed statements, the last one in February 2024, and gave oral evidence.

L said that X had settled well with AM who wanted the best outcome for X. She was not sure what X remembered about BM. She did not recommend contact with BM.

However, L said that she had not seen X since May 2024; life story work had not been done even though X had been living with AM for nineteen months which L accepted was “not acceptable.” L also accepted that indirect contact forms had not been processed or even sent direct to X’s siblings. She had also not considered the comments about contact in the judgment following the care proceedings.

L attended a meeting in March 2024 between BM and AM at the local authority’s offices which went well and which she remarked “bodes well for the future.”

CG filed an analysis in December 2023 and gave oral evidence to bring matters up to date.

In her analysis, regarding post-adoption contact CG said that:

“59.

I am not opposed to post adoption contact and it is my view that this needs to be approached on an individual, case by case basis. There are pros and cons to this when it comes to children’s overall welfare.

60.

…I think that there would be some value to [X] in having post adoption contact with [BM]. Unfortunately, [X] is too young to understand the situation and it [sic] I think it would cause her confusion and impact her current stability.”

At that time therefore, CG supported letter box contact only.

In her oral evidence, CG referred to X being at a “tricky age” and that direct contact would be easier if she were younger or older. Age was a main factor in her view that there should not be direct contact between X and BM now.

The CAMHS report had also increased CG’s concerns about introducing direct contact with BM. X had to be “at the centre” when making decisions and X needed “one thing at a time.” If CAMHS were saying that specific work was needed with X, that should be undertaken first. Introduction of BM now would be confusing for X who might feel her security with AM was “threatened.”

CH described herself as a “senior CAMHS clinical specialist and under 5’s lead”. She has worked in this role for thirty-five years which includes dealing with looked after and adopted children.

CH works with X and AM seeing one or both weekly. As well as giving oral evidence, she filed reports in February and October 2024. Her views and conclusions were based on her assessment of X.

Commenting in her February 2024 report on X’s presentation, CH noted that:

“While she has been helped by the prospective adopter to feel settled enough to ‘let go’ and relax more she remains somewhat vigilant and anxious about the predictability of her life.

This is understandable given the severity of her early life adversity. It is common for us to see this vulnerability to change in children who have experienced anxiety at a very early age where they had no means to manage this emotionally, physically, or psychologically. The early experience of overwhelming and intolerable stress can often take a long time to recover from and plays a significant part in why [X] is still very sensitive and can be easily alarmed and anxiously predicts change where there is none taking place. The fact that she has adapted as well as she has to some new experiences, e.g., nursery, is largely attributable to the thoughtful and predictable support that the prospective adopter has put in place for her.

[X]’s longstanding low expectations of adults to provide her with care does impact on her sense of self-worth and confidence that she can be loved and treasured by an adult caregiver. [X] is emotionally moving on gradually from this position and is claiming the prospective adopter in a very healthy appropriate way. However, as if often seen, this can be steered off course easily with emotional demands made on [X] to adjust too much to others e.g., this was clear from the previous contact with her foster carer.”

She referred to X easily being “emotionally derailed” when experiencing some change to her routine or a new event:

“However, it is clearly evident from everyday situations where [X] naturally experiences some change to her routine, or a new event, that she can easily be emotionally derailed, with consequences that affect her functioning to a greater degree than would be expected within the ordinary range for her age. The effects of her having to manage situations which cause her to feel higher levels of stress highlights that her underlying vulnerability is significant and can easily be triggered, commonly seen in young children with a history of significant early adversity. Whilst she cannot be sheltered from all change it will be important for the next few years that this is at a level that could be considered as in the “low” or “tolerable” stress range.”

CH also felt that if there were “repeated challenges” to X to adapt beyond her emotional capacity, it could put the relationship between X and AM at risk.

In her October 2024 report, CH referred to X’s “complex needs” and again to her ability to become “emotionally derailed” with “consequences for both her functioning, development and her attachment with adoptive mum.”

X was a “sensitive child with complex social-emotional and attachment needs” who was making good progress although it was “early days”. A significant challenge was also presented by X’s “overly controlling behaviour.”

Overall, CH concluded that direct contact would cause X “anxiety and confusion that will be detrimental to her emotional development, attachment relationships and mental health and would crucially set her back in her pathway to recovery.”

Moreover, she felt that:

“…security of the relationship between [X] and [AM] is the greatest protective factor for this young girl now. There are challenges and demands on the parenting role as [X] is a complex and needy child. It is vital that this relationship is not further strained for [X] as its stability will play the single most important role in her pathway to emotional recovery and developmental progress.”

In her oral evidence, CH described X as a “bright girl” although there was a “different picture emotionally.” X had knowledge or an awareness of the changes in her life although she struggled to understand. If contact were introduced with BM now, it would have a significant and long-term impact on X.

BM and AM did not give evidence although they both filed statements.

BM has given evidence before me in the care and placement proceedings and when she applied to oppose the adoption. She also appeared at the substantive adoption hearing alone and addressed the court.

My judgment in the care proceedings set out why BM was not considered able to care for X. I do not propose to repeat those findings now save to note that everyone involved in the earlier proceedings accepted that BM dearly loved X. I accept that her love has not diminished in any way.

Throughout these difficult proceedings though, BM has always behaved with dignity and been polite. When without representation, she was respectful and accepting of the court’s decision. Throughout this hearing, she sat in court politely listening and maintaining a personal dignity in the face of what must have been an emotionally difficult hearing for her. Given her presentation, it was not surprising that the meeting in March 2024 between BM and AM went smoothly.

I also observe that although the court has made adverse findings about BM herself and her parenting, there has never been a suggestion that she has been malicious or behaved in an iniquitous way towards X.

AM also deserves praise. I met her at the final adoption hearing a few weeks after the hearing when the adoption order was made. AM is an intelligent and successful lady but also someone who came over as kind and dedicated to X.

AM’s position all along has been that she wants the best for X. She has not closed the door on direct contact between BM and X. Her position is that she puts X first and will follow the professional advice as to when the time is right for X to have direct contact with BM. In other words, direct contact is not for now but later; not if but when, as her Counsel put it.

I accept this as a genuine position. AM willingly attended the meeting with BM earlier this year at the local authority’s office. That attendance cannot be understated; for an adoptive parent, meeting the birth parent must have been very difficult but the meeting went well which is as much a credit to AM as it was to BM.

AM has also sent photographs of X to BM; she has no issues with indirect contact between X and BM or her siblings; she engages fully with CAMHS and no professional in this case has cast any doubt about AM being genuine in her position about direct contact.

That leaves X. I have also met her when she attended the final adoption hearing with AM. She is a lovely little girl. However, she has suffered and is in need still of further therapeutic work.

As to the evidence before the court, I found L’s evidence disappointing. There is no doubt that the local authority has let down not only X but also BM and AM.

The absence of any proper progress on the life story work is unacceptable. It has denied X the opportunity to start to come to terms with and understand her situation and crucially for professionals to address this matter.

Indeed, as long ago as March 2024, X had already asked AM if she came from her “tummy.” Had the life story work been completed, it would have given CAMHS the basis to address how best to deal with these questions and offered AM appropriate guidance.

It is to the credit of AM that when she received a draft seven or eight page (as it was referred to) version of some or all of the life story work in June 2024, that she did not show it to X as she felt it was inappropriate to share an unfinished piece of work.

Of course, the lack of the life story work also denied AM the opportunity to seek appropriate guidance and worse still, it delayed any opportunity for the time to arrive when direct contact between X and BM could be considered seriously.

It was also worrying that L had not properly processed the indirect contact forms; X’s siblings were not contacted direct for no real reason. I was also concerned to be told that photographs sent by AM at one point were deliberately fuzzy because the local authority had told her to send them in this manner.

I found the local authority’s approach to direct and indirect contact unacceptable in the context of this matter.

During the care and placement proceedings, I was told that the local authority wanted to explore direct contact between BM and X’s adopter. It was for this reason that I commented on direct contact in my judgment. Thereafter, the signs were encouraging especially when I was told during the application by BM for leave to oppose the adoption that a meeting was to be set up between BM and the proposed adopter.

What I do not understand therefore is why during most of this year, the local authority has done little to help progress being made. L’s evidence left me with the feeling that after the proceedings ended and an adoption order was made, the local authority just walked away from the issue of contact.

CG did her best to help the court. I agree with the general points she made although I was not satisfied that she addressed the issue of direct contact with sufficient depth and understanding of the contemporary research and trends in this challenging and developing field.

Her position regarding direct contact was primarily based on X’s age and a heavy reliance on CH’s evidence. Although CG said that she had “catch ups” with AM, had visited X and read the evidence, I was left with the impression that her involvement with the parties was superficial which detracted from the overall value of her evidence.

I found CH to be a thoroughly professional and impressive witness.

On behalf of BM, CH’s background in occupational therapy was questioned as was the fact that no CV was available, together with concern about her role as a treating clinician and not being objective.

CH’s involvement in this matter came about at an early hearing when her first report was produced by AM. There was no objection to its inclusion in the evidence and permission was given for an updated report. The parties also agreed that she could give evidence at the final hearing. There was no objection at any time to her involvement nor was there a suggestion that an independent expert might be more appropriate.

I found CH to be entirely objective and her evidence was crucial and immensely helpful. CH sees AM and/or X weekly. I am satisfied that she was fully qualified to express an opinion working for CAMHS and having many years of experience and training beyond occupational therapy. No issue of patient confidentiality compromising her evidence arose. She was unfazed by cross-examination and explained her views carefully and clearly.

I place substantial weight on CH’s views and opinion which to my mind were sound and sensible based on her years of experience and having an intimate psychological knowledge of X. To my mind, this was the best evidence before the court.

Taking everything together, I turn now to my conclusions. I record that the parties all made final submissions at the end of the hearing. I do not intend to repeat what they said save to say that I have considered those submissions carefully.

The first stage is to consider whether to give BM leave to make her application for post- adoption contact.

Turning to the factors in section 51A(5), BM has a connection with X as she is her birth mother (section 51(A)(5)(b)).

I take into account the representations made by CG on behalf of X (section 51(A)(5)(c)(i)) as well as those made on behalf of AM (section 51(A)(5)(c)(ii)).

That leaves section 51(A)(5)(a) which refers to any risk of the application disrupting X’s life to the extent that X would be harmed by it.

Harm is defined by reference to the Children Act 1989 where at section 31 it includes impairment of health or development.

I have reached the conclusion that if I were to give leave for the application to be made, there is an almost guaranteed risk of harm being caused to X.

X is four years old. She is starting to explore her world and it is clear that positive work has been done to help her to address her past and present difficulties. However, the work done so far is really only a beginning.

I accept CH’s evidence as to X’s situation. In particular, her view that direct contact could destabilise X and cause her to become emotionally derailed; the potential threat to the relationship between X and AM and the confusion and anxiety X would suffer.

I am in no doubt that if direct contact were to take place now or in the short term, there would almost certainly be a risk of disruption to X’s placement and to her life and emotional wellbeing. X needs time to adjust to her new life and to benefit from professional help to work through the many issues and matters identified by CH. Those issues are clearly not straight forward or easy to resolve.

Added to the matters identified by CH is the fact that life story work has not started properly. As I have said, this is vital and part of the path to direct contact or at the very least to allow X to understand her past life.

When considering the welfare check list in section 1 of the ACA, it is the potential for emotional harm that would almost certainly be suffered by X through direct contact that stands out as a factor against allowing this application to proceed. There is also the need for X to enjoy stability in her placement and to continue her work with CAMHS. I also note that X’s connection to her birth family can be provided by indirect contact and life story work.

Accordingly, I refuse leave to make the application. For the sake of completeness though, if I had given leave, I would have refused to make an order for direct contact at this point of time. It would be against the wishes of AM which are well founded, based on X’s welfare needs and not a whim of her own and should therefore not be ignored or overridden; X would suffer emotional harm as evidenced by CH’s evidence and the fall out from direct contact would more likely than not harm X as well as AM with the potential to damage her placement. Direct contact would not be in X’s welfare interests. Indeed, the factors I refer to in refusing leave would apply equally here.

Turning to the future though, I accept AM’s assurance that she will facilitate direct contact at a point when the professional advice she receives is that X would be emotionally safe and such contact would be appropriate and in X’s welfare interests.

I direct the local authority to finalise its life story work by the end of January 2025 and to ensure that indirect contact is formalised in the next four weeks not only between X and BM but also between X and her siblings.

My hope is that CH will continue her work and progress matters to reach a point when X can deal with direct contact and all that brings with it. X’s welfare interests reflect her whole life and not just her childhood and X will need a solid emotional base to address direct contact and all the issues that flow from it which include stability of her life with AM. At what point in time direct contact may be viable is therefore impossible to say. X is a child with complicated needs and resolution of her issues cannot be rushed. Meanwhile though, indirect contact and life story work is sufficient.

Accordingly, as I have said, I refuse leave to BM to apply for direct contact with X. I believe that indirect contact is agreed between the parties but if any points arise regarding that or generally, I can deal with them either on paper or at a short hearing. I give permission for this judgment to be shared with CAMHS. I would invite Counsel to agree an order to reflect my judgment.

That is my judgment.