W (Adoption: Contact), Re

Competing adoption and family-placement applications are determined by a straight welfare test focused on the child’s welfare throughout life. There is no presumption in favour of natural-family placement, adoption or the status quo. Adoption must be necessary and proportionate after comparison of the realistic options under the Adoption and Children Act 2002 checklist.

A secure attachment formed during most of a young child’s life may be a powerful welfare factor. The court must assess both the immediate harm of disrupting it and the possible longer-term risks of either placement. Direct post-adoption contact with birth relatives may preserve relationships and mitigate identity-related harm, but agreement may be preferable to an inflexible order.

The case concerned cross-applications for an adoption order by A’s prospective adopters and a special guardianship order by her paternal grandparents. A had lived with the prospective adopters for approximately two years, since infancy. Her younger brother lived with the grandparents, who had not known of A’s existence until after her placement for adoption.

Bodey J had previously made a special guardianship order in favour of the grandparents. The Court of Appeal allowed the prospective adopters’ appeal and remitted the case for rehearing: [2016] EWCA Civ 793. On the fresh evidence, the central issues were A’s attachments, the harm and proportionality of moving her, the competing carers’ capacities, and whether adoption with direct family contact best served her welfare throughout life.

1. Welfare test. The applications were determined by A’s welfare throughout her life under section 1(1) of the Children Act 1989 and section 1(2) of the Adoption and Children Act 2002. The adoption checklist, particularly section 1(4)(c)–(f), required consideration of lifelong family separation, A’s characteristics, harm, and the value and viability of relationships. There was no presumption for natural-family placement, adoption or the status quo. The court had to compare the realistic options and select adoption only if necessary and proportionate to A’s welfare needs.
2. Evaluation of harm. A was securely attached to the prospective adopters, whom she regarded as her parents, and had lived with them for most of her life. Removal would cause certain short-term trauma and emotional harm, with a serious but unquantifiable risk of longer-term impairment of attachment security and development. Remaining with the adopters carried a possible later risk of rejection and identity-related harm because A’s siblings were raised within the birth family. That risk could be moderated by openness about adoption and continuing relationships with birth relatives.
3. Proportionality and outcome. Remaining with the prospective adopters was most likely to contain and mitigate the risks, preserve important relationships and promote A’s welfare. An adoption order was made. The mother’s consent was dispensed with under section 52(1)(b) because A’s welfare required it; the court treated that requirement as imperative.
4. Contact. Direct contact with the paternal family was a significant and unusual feature, capable of supporting A’s identity and reducing a sense of rejection. The appropriate starting point was twice yearly, with indirect contact between visits and scope for increase if successful. No contact order was made because the adopters and grandparents accepted the arrangement, and an order could be inflexible. The order recorded their positions and proposed facilitation by Dr Young.

1. Court of Appeal. Bodey J’s special guardianship order was successfully appealed and the matter was remitted for rehearing: [2016] EWCA Civ 793.
2. High Court (Family Division). On rehearing, Cobb J made an adoption order in favour of the prospective adopters.