Oxfordshire County Council v X & Ors

After an adoption order, an application concerning contact with an adopted child falls under Children Act 1989, with the child’s welfare as the paramount consideration. An order imposing an unwanted contact obligation on adoptive parents is extremely unusual.

Where the adoptive parents reasonably fear that providing photographs may enable the natural parents to trace the child, the court should focus on whether that fear lacks any reasonable basis. A judge’s different assessment of the objective risk does not, without more, justify overriding the adopters. Their security and stability are integral to the child’s welfare.

Following J’s adoption, her natural parents sought an order requiring the adoptive parents to provide them annually with a photograph of her. The adoptive parents, the local authority and J’s children’s guardian supported an arrangement under which the natural parents could view, but not retain, a photograph.

His Honour Judge Corrie ordered that the natural parents should receive a photograph. The local authority appealed. The central questions were whether the judge had applied the correct statutory framework and whether he had given proper effect to the principle that imposing contact obligations upon unwilling adoptive parents is extremely unusual.

1. Appeal allowed. The order requiring the adoptive parents to provide an annual photograph was discharged. The court permitted a recital recording the local authority’s agreement to facilitate letterbox contact and an opportunity for the natural parents to view a recent photograph.

2. Once the adoption order had been made, jurisdiction arose under section 8 of the Children Act 1989, rather than sections 26 or 46(6) of the Adoption and Children Act 2002. The applicable welfare checklist was therefore section 1(3) of the 1989 Act. The child’s welfare remained the paramount consideration.

3. The judge had failed to acknowledge that imposing a contact obligation upon unwilling adoptive parents was extremely unusual. Giving their wishes considerable weight was not equivalent to applying that principle. Re R (Adoption: Contact) [2005] EWCA Civ 1128 applied.

4. The essential inquiry was not whether supplying photographs would objectively create or increase the risk that the natural parents might trace J. It was whether the adoptive parents’ fear of that risk was unreasonable because it had no reasonable basis. Their stability and sense of security were inseparable from the welfare of a young child in the early stages of adoption. Unless the evidence compelled the conclusion that their fears were unfounded, the judge’s different assessment of the risk could not justify overriding them.

5. The judge had found the adoptive parents’ concerns genuine and understandable and had accepted that some risk existed. Nothing was capable of outweighing the resulting effect upon their security. Although adopters’ wishes are not legally dispositive in every case, there was no proper basis for the extremely unusual step of usurping their parental responsibility in this case.

6. It was unnecessary to decide whether natural parents retain rights under Article 8 of the Convention in relation to a child after adoption. Even assuming that such rights existed and were engaged, they could not alter the balance.

7. Separately, the court stated that parties supporting the same outcome should have separate publicly funded representation only where an unavoidable legal conflict requires it. Legal advisers should examine whether separate advocates are necessary, and judges should consider limiting recoverable costs where representation has been unnecessarily duplicated.

• Court of Appeal (Civil Division): By [2010] EWCA Civ 581, allowed the local authority’s appeal and discharged the order requiring the adoptive parents to provide annual photographs.
• Oxford County Court: His Honour Judge Corrie ordered on 28 July 2009 that J’s natural parents should receive an annual photograph. No neutral citation is stated.