4. Contact and Conditions in Orders for Performance
4.1 The Group considered the circumstances in which contact might be appropriate in permanence and how these contact arrangements should be underpinned legally.
4.2 The Group's major recommendations are:
- there should only be contact for the benefit of the child and for a clear purpose (4.4)
- young people and children should be enabled to keep in contact with siblings and other important people in their life (4.9)
- conditions - including contact - should still be allowed in adoption orders in exceptional circumstances, but contact arrangements and other conditions should normally be dealt with alongside adoption orders (4.14)
- section 11 of the 1995 Act should be amended to allow the possibility of contact after a freeing order, with suitable protection against repeated applications (4.16 and 4.18)
4.3 The current law allows for conditions, including those relating to contact, to be made in adoption orders, although the courts have made clear that such conditions should only be made in exceptional circumstances. 1 No conditions can be made as part of a freeing order. Contact can also be allowed under the hearing system if the child is subject to a supervision requirement, or through an application under the private law provisions in s.11 of the 1995 Act, although this is not available to birth parents whose parental responsibilities and rights have been removed by a freeing or adoption order. 2
4.4 The issue of contact in adoption and other permanent placements was an area of concern for both law and practice, particularly as the age of children available for adoption has increased. Such children are more likely to have formed important bonds with birth parents, siblings, other relatives or other carers There are two key questions:
- for whose benefit is the contact sought?
- what is the purpose of the contact?
The Group recommends that contact should be for the benefit of the child not the adults. The purpose of the contact - for example, enabling a child to understand the circumstances of the separation, reassuring a child about the well-being of the birth family - also should be clear, to help shape decisions on type and frequency of contact. These principles should be set out in guidance.
Consultation with young people
4.5 Contact with birth families was an important issue in the consultation with young people. 3 The majority of young people were content with their contact arrangements, both those who had been adopted and those in foster care. However, their responses showed the complex nature of this issue. Young people spoke about making an effort to maintain contact but being put down by a birth parent, feeling pressure to see birth parents, their dislike of visiting birth parents, and birth parents changing or cancelling contact. The young people also talked about the importance of wider family, particularly contact with siblings.
4.6 The comments show these different points of view:
I was adopted when I was 8 years old. When I was younger I had issues with where I came from and where I belonged. I am completely happy with my situation now though. My adoptive parents are my parents: they are the ones who have been with me through the ups and downs. (Young woman, 17 years)
I don't really agree with the adoption stuff because when my brother was adopted it was agreed that we were supposed to see him twice a year. But because his adoptive parents are kind of difficult they are making it hard, and we are only getting to see him once a year and this year we haven't seen him at all. (Young woman, 17 years)
Please accept that if young people don't want contact with their birth parents then they don't have to! We shouldn't be put under pressure to do this. (Young woman, 13 years)
4.7 The young people also commented about making contact with their birth families after some years. Their views were fairly evenly split on whether birth family members should make a first approach, with or without the young person's consent. For some it was important that their birth families made the first move to make contact as they would want to know that their birth parents wanted to have contact.
I think they should do it, it shouldn't be the younger one that has to. I would like to, but I would like to think that my mum would like to (Young woman, 14 years)
I think it would be weird making the first approach, but it would also be strange someone from my birth family making contact with me. I think the last one (a question about who should make the first contact) is both ways round, birth family or the young person, but only if the birth family and the young person have said it is okay. (Young woman, 14 years)
4.8 A number of young people identified a strong need to know about siblings and the birth family more widely:
It's probably not for all people, but for me it was. You see I only started being interested in who I was 4 years ago when I got this letter from social work about all the reasons why and everything like that and then I started getting interested in my identity, like who I was if you know what I mean. (Young woman, 14 years)
I suppose it was (important) before I found out that I had a brother and sister, but it's not any more. (Young woman, 14 years)
4.9 As a result of the consultation, and discussions in the Group, the Group recommends that young people and children should be enabled to keep in contact with other important people in their lives, not just birth parents, when they are moved to new placements. In particular, contact with siblings may be beneficial to everyone and is different from contact with birth parents.
4.10 The Group concluded that the law in the area of conditions should be flexible and allow for the wide range of possible circumstances and needs that can arise. However, there were a number of practice issues for which detailed guidance should be prepared. These included:
- consideration of contact as part of the assessment of prospective adopters. Some prospective adopters are initially shocked when they become aware of contact arrangements. Others may feel there is a pressure to agree to contact in order to be approved as adopters.
- recognising the importance of preparing all parties for contact.
- the specific type of contact arrangements to be made in each case: direct or indirect, supervised or unsupervised. Guidance should look at all different forms of contact, recognising that birth parents need support as well as adopted children and that contact could be in the other direction, that is the adoptive family providing information to the birth parents. Clarity about the purposes of contact can help shape decisions about the type of contact.
- a continuing system for adoption support, including: mechanisms for all parties to make, change and adapt contact arrangements; review of contact needs throughout childhood; skilled support, using a pool of professional, birth parent and adopter experience; and mechanisms for adopters to share contact experiences.
- clarity about who makes the decisions about contact: the adopters or the agency, or young people themselves, where appropriate.
- clarity about whose responsibility it is to initiate arrangements.
- a system that lifts barriers to contact at the same time as ensuring protective filters.
4.11 The aim should be a system that:
- regulates contact appropriately without excessive control
- provides a clear but flexible legal mechanism for contact orders in all types of orders for permanence where these are required, and which can change to meet the changing needs of young people
- provides clear guidance to those involved on the issues and decisions to be made in considering contact in all permanence cases.
Conditions in adoption orders - legal issues
4.12 The Group considered whether conditions, including contact, should continue to be possible in adoption and other permanence orders. An adoption order is an order altering the status of the child, and it is arguable that the child and the adoptive parents should not be subject to conditions contained in the order which establishes this new relationship of parent and child, particularly a condition which might change through a child's life (such as contact). There are also questions about how such a condition could be enforced.
4.13 The Group identified alternatives to conditions in adoption orders. For example, parties to the adoption could be invited to agree a statement of intent as to contact, and any other relevant matters. Such a statement would not be a condition of the adoption order and would be dependent on goodwill to have effect. However, it would be preferable to a condition as it would set out in more detail where the parties stand on contact and any other practical arrangements to which the parties have agreed. In cases where a legally binding arrangement is appropriate, the Group favoured the removal of the current prohibition on applications under s.11 of the 1995 Act by birth parents (and others) who have had their parental responsibilities and rights removed by adoption or freeing, although the Group recognised there should be safeguards. 4 However, the Group also recognised that the law in this area should be flexible and there might be exceptional cases where it would be appropriate for adoption orders to contain conditions, and the legislation should allow for that possibility.
4.14 The Group recommends that conditions - including contact - should still be possible in adoption orders but only in exceptional circumstances. Matters such as contact should generally be dealt with alongside the adoption order.
Conditions in freeing
4.15 Under the current law, a person whose parental responsibilities and rights have been removed through a freeing or adoption order cannot apply to the Court for a contact order or any other order under s.11 of the 1995 Act. 5 The law therefore allows an adoption order - the final order in the procedure - to contain provision for contact for a birth parent, but does not allow a freeing order - a possible intermediate stage in adoption which nonetheless removes parental responsibilities and rights - to do so.
4.16 Although the Group recommends that freeing for adoption should be abolished, it will be some time before this recommendation, if accepted, receives legislative effect. 6 The Group recommends that at the earliest opportunity s.11 of the 1995 Act should be amended to remove the current restriction on those who have lost parental rights through adoption or freeing applying under that provision. In line with its views on conditions in orders about children's status, the Group believes that this provides a better solution than amending the provisions on freeing to allow conditions. It is also the approach that has been favoured by the Court of Session in recent litigation. 7
4.17 The Group recognised that this change could cause some anxiety amongst adopters and adopted children, who might be concerned that birth parents would make repeated applications to court for orders under s.11 of the 1995 Act. Such a situation could unsettle and undermine the security provided by adoption.
4.18 The Group recommends that applications for orders under s.11 of the 1995 Act in these circumstances should only be allowed with the leave of the court, to protect adoptive and potential adoptive families from inappropriate or vexatious applications. This is similar to the law in England and Wales, which was commented on favourably by the Court of Session. 8 A system of leave to apply is less common in Scotland than in England and Wales, but there are provisions which use such a system: for example, a re-application to revoke a freeing order, or where birth parents will also have to seek leave to oppose an adoption application if the child has been placed for adoption in Scotland from England and Wales under the provisions of the 2002 Act. 9
4.19 In addition to these recommendations, which spring from problems with current freeing provisions, the Group has made other recommendations to amend s.11 and introduce a need for leave from the court to apply for orders. 10
Recommendations of Chapter 4 - contact and conditions in orders for permanence
15. Contact should be for the benefit of the child not the adults. The purpose of the contact also should be clear, to help shape decisions on type and frequency of contact. These principles should be set out in guidance. (4.4)
16. Young people and children should be enabled to keep in contact with other important people in their lives, not just birth parents. In particular, contact with siblings may be beneficial to everyone and is different from contact with birth parents. (4.9)
17. Conditions - including contact - should still be possible in adoption orders but only in exceptional circumstances. Matters such as contact should generally be dealt with alongside the adoption order. (4.14)
18. Section 11 of the 1995 Act should be amended to remove the current restriction on those who have lost parental rights through adoption or freeing applying under that provision. Any application for an order under s.11 in these circumstances should only be allowed with the leave of the court, to protect adoptive families from inappropriate or vexatious applications. (4.16 and 4.18)