Beck Fitzgerald defend appeal setting new precedent on post-adoption contact

Late last month, B-A (Placement Order and Contact Order) EWCA Civ 356 was handed down, marking an important development in post-placement contact law in support of arguments for post-adoption contact where it is safe to do so and in the children’s best interest.

Beck Fitzgerald Joint-Head of Care Jasmine Hollis, instructing Polly Allison and Nathan Baylis, acted for the respondent father in the Court of Appeal case pro bono.

The case focused on the local authority’s appeal of the direct contact order made in favour of a father and his children under section 26 of the Adoption and Children Act 2002, following the making of a Placement Order.

The local authority argued that the judge had failed to consider the least intervention approach and should have made no order as the LA agreed to the annual direct contact in principle and said it should have been set out as a recital on the face of the order instead.

The appeal was dismissed, which is a significant decision given that it is the first time the Court of Appeal has examined an appeal concerning a section 26 order for parent and child.

This is an important development in post-placement contact law, and we are proud of the team’s dedication to this case.

To read the full judgement, click here.

See highlights from the judgement below:

Before :

LORD JUSTICE PHILLIPS

LADY JUSTICE FALK
and

LORD JUSTICE COBB

Re B-A (Placement Order and Contact Order)

Polly Allison and Nathan Baylis (neither of whom appeared below) (instructed pro bono by Beck Fitzgerald, also acting pro bono) for the Third Respondent (father)

Lord Justice Cobb: 

Background:

 9. The care proceedings were launched on the back of increasing Local Authority concern about the mother’s serious and complex mental ill-health, her neglect of the children, her emotional abuse of the children, and her generally chaotic life. The mother, “an intelligent and capable woman” ([J1][15]), suffers from complex post traumatic stress disorder – a legacy of multiple abusive experiences in her own childhood… The Local Authority had been involved in supporting the family for four years prior to the launch of the care proceedings.

11. [The father] is said to be a “very vulnerable” man, who cannot read or write. The Judge commented ([J1][108]) that “he comes across as extremely well meaning, a very pleasant personality… but his words and meanings were occasionally unclear, and this all fitted with the picture that I have gained of an extremely good-hearted somewhat compliant but cognitively challenged person, who loves his children very much” ([J1][109]). 

Judgement:

29. As to post-placement contact between C and D and their mother and separately their father, the Judge said this:

“[181]… The mother does not seek a contact order and nor do the maternal grandparents. Mother does not do so recognising the potential impact if there were such an order in her favour on placement finding.

[182] However, [the father] is in a different category, and an order is sought for him. His relationship with his sons is warm and positive, and they clearly know and love him dearly. He does not pose the same emotional risks as the mother. He has significant cognitive issues: he is illiterate, and he has required intermediary support. And unlike the mother he has a positive and cooperative attitude, which weighs in favour of contact taking place and assists with encouraging prospective adopters in understanding that. However, he will be grossly disadvantaged by his cognitive impairment, and therefore [C] and [D] will be grossly disadvantaged, if he then has to attempt to navigate the administrative demands of attempting to seek and enforce direct contact, in the absence of there being any order…

[184] Overall, therefore, I consider there is an established need in the unique circumstances of this case, for there to be a minimum single annual direct contact between him and the boys. Plus, that contact should take place with the boys jointly together with him and not one boy at a time. That way, it supports the boys’ welfare interests under the ACA checklist in terms of their emotional needs, their identity, their relationships with their father who is of significant value to them and where the continuation of that relationship supports their feelings of being loved and connected together”

The Law:

38. In Re R and C Baker LJ went on to describe the significance of family contact for older children placed for adoption; while he addressed the fact that adoption generally satisfies children’s needs for security and permanency, nonetheless “in many cases”, he said, they also have a need to sustain relationships with some members of their birth families (ibid. at [6]). Baker LJ referenced more than once the importance of the court setting the ‘template’ for contact going forward at the placement order stage (quoting at [39] from a speech given by McFarlane P [May 2024] who himself had referred to “setting the course for the maintenance of family relations over the longer term”) (see Re R and C at [57], [66] and [68]). Baker LJ emphasised that it is the court which has the responsibility to make orders for contact if orders are indeed required in the interests of the children…

The Grounds of Appeal and Arguments:

43. There are four grounds of appeal which I summarise as follows:

i) Having determined that the welfare outcome that best met the needs of C and D was adoption, and having endorsed the professional consensus that it was overwhelmingly in the children’s best interests, if possible, for them to be placed together, the Judge failed to carry out a welfare analysis that properly took into account the comparative advantages and disadvantages of making a contact order in favour of the father;

ii) The Judge failed to give adequate weight in her analysis to the unchallenged evidence of the family finding social worker, who told the court that a requirement for parental contact would likely result in a fairly drastic reduction in the pool of prospective adopters, and whose written evidence was that the making of a contact order was likely to halve the pool of prospective adopters;

iii) The Judge failed to properly apply the ‘no order’ principle under section 1(6) of the 2002 Act in circumstances where the Local Authority was, in principle, willing to support face-to-face contact between the children and the father, placing undue weight on the difficulties that the father would have in navigating the administrative demands of seeking out contact with the children;

iv) The Judge failed to give adequate reasons for departing from the recommendations of the Guardian and the allocated social worker, both of whom recommended that the Court should not make a contact order under Section 26 of the 2002 Act.

Discussion:

49. This appeal focuses on a single, albeit significant, issue. In circumstances where all parties accept the welfare benefits of future face-to-face contact between a parent and children who are to be placed for adoption, the question arises: when is it appropriate for the court to make an order under section 26 of the ACA 2002, and when should the court instead record the parties’ general intentions in a non-binding recital, which has the advantage of offering “flexibility over the contact arrangements” (Re S at [80])? This is essentially a binary choice for a Judge. The caselaw which we have considered on this appeal (i.e., Re P, Re R and C and Re S) all relate to section 26 orders for post-placement contact between siblings, but the approach to such an issue articulated in those authorities applies in my judgment to a case concerning future parental contact without material adaptation.

53. This was a case in which the Judge appeared to accept that a section 26 order was ‘necessary’ (she referred to “an established need” [J2][184]) rather than merely ‘desirable’ (see Re S at [32], quoted at §40 above). The Judge was aware of section 1(6) ACA 2002 and the ‘no order’ principle; she made specific reference to it when setting out the relevant legal framework ([J2][21]). In this case, no one mistrusted the Local Authority not to deliver on its objective of promoting contact; but the imposition of a court order reflected the real world challenges with which the father would be presented in seeking to press home an informal arrangement (see §52 above). For these reasons it is obvious that the Judge considered that the ‘compulsion’ of an order was justified and “better” for C and D than setting the arrangement adrift on the tides of chance.

56. …  I respect the fact that the Judge saw a real need in this case for the court to take responsibility for making a contact order; this is a decision which this Court has, through earlier caselaw, urged her to take (see Re P at [151] – [154]: “it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children”, and Re R and C at [2], [66], and [68]). I can identify no flaw in the judge’s treatment of the issue (per Re Sprintroom above), nor is there is any gap in her logic or lack of consistency. 

Conclusion:

60. For the reasons set out herein, I have not been persuaded that the Judge fell into error in making the contact order in respect of the father’s post-placement contact with C and D under section 26 ACA 2002 in this case. I would, as earlier indicated, dismiss this appeal.

For more information about our work in this area see our news and views