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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 2 Contact
This is one of the biggest areas of concern in the law and practice of permanence and adoption. The combination of contact and freeing applications, in particular, causes problems, as outlined in Chapter 3, Freeing Orders. However, whether freeing is used or not, the issue of contact is a major one.
There are various difficulties and questions in any discussion of contact in permanence.
- What does 'contact' mean?
- What exactly is meant by 'direct contact' and 'indirect contact'?
- What is 'open' adoption as opposed to 'closed' adoption?
And most important of all are the questions:
- What is the benefit of contact to the child in permanence cases?
- What is the purpose of having contact in permanence cases?
In this Paper, contact means any form of continuing communication or association between the child and the birth family. Direct contact is where there are face-to-face meetings, whether once a year or once a week. Indirect contact is where the association is by letter, telephone or other similar methods, whether through a third party or not. For example, arrangements are often made by agencies for 'letter box' contact, when the agency acts as a go-between with information.
Reference is often made to 'open' adoption as opposed to 'closed' adoption. These terms have no specific legal meaning. Some people might describe an adoption as 'open', meaning there is contact, but that contact could be 'direct' or 'indirect'.
The current legal rules about contact vary depending on the basis on which the child is cared for away from home.
- If a child is away from home subject to a supervision requirement from the hearing system, decisions about contact are made by the hearing. Parental responsibilities and rights are retained by birth parents except to the extent to which the requirement interferes with them. A supervision requirement does not give any parental responsibilities to the local authority.
- If a child is subject to a PRO, there is a general expectation that there will be contact, but no parental right to it, s.88 of the 1995 Act. The birth parents (and the child, the authority and anyone 'claiming an interest') can take the case back to the sheriff court if there are disputes about contact. (See above, pg. 11 for information about PROs.)
- If a child has been freed for adoption, the local authority adoption agency has all responsibilities and rights, and the birth parents who have lost them are left with none. As a result, birth parents have no legal right to contact (although there may be an informal arrangement); and they have no method of taking the issue back to court:
- because there are no rights for them in the 1978 Act; and
- s.11(3)(a)(iii) and (4)(b) of the 1995 Act prohibits them from any future use of s.11, to seek any order about parental responsibilities.
- If a child has been adopted, the adoptive parents have all responsibilities and rights, and the birth parents who have lost them are left with none, unless there is a contact condition attached to the order, in terms of s.12(6) of the 1978 Act. However, case law says that such an order should only be made in 'exceptional circumstances', following B v C 1996 S.L.T. 1370, 1996 S.C.L.R. 874. Otherwise, the position of the birth parents is the same as when a child has been freed, and they have no right to go back to court under the 1978 or 1995 Acts.
In West Lothian Council v M 2002 S.L.T. 1155, the court took the view that a condition, about contact or anything else, could not be added to a freeing order under the 1978 Act. There is nothing in the freeing provisions which is similar to the court's powers under s.12(6) of the 1978 Act, to attach 'such terms and conditions as the court thinks fit' to an adoption order. Theoretically, (this was not discussed in the case), a court could itself use s.11 of the 1995 Act to grant contact even if no-one formally asked for an order, s.11(1) and (3)(b). However, the provisions of s.18(7)of the 1978 Act (courts' duties about certain fathers in freeing applications) do not easily fit in with this suggestion, where the person wanting contact is a father without responsibilities and rights.
The court in West Lothian Council v M commented critically on the prohibition in s.11(3)(a)(iii) and (4)(b) of the 1995 Act, mentioned above. This prohibits birth parents who have lost responsibilities through freeing or adoption from using s.11. The comments by the court suggest that the provisions should be repealed, whatever long-term changes are made to adoption and freeing law. Any short-term repeal could include a right to such birth parents to apply to court to seek leave to make an application.
This is the position in England and Wales, and leaves birth parents with a remedy, while giving the courts power to prevent inappropriate or vexatious applications. While Scottish courts do not usually operate by giving leave to apply, there are provisions which impose such a system: s.51(11)(b) of the 1995 Act says that the sheriff principal's leave is required to appeal from him to the Court of Session in children's hearing cases; and in s.16 of the 1978 Act, as it will be amended by the 2002 Act, a court will have to give leave before birth parents can oppose a Scottish adoption application, when the child was placed with parental agreement or a placement order has been granted under the 2002 Act (see Sched 3, para 23(b) of the 2002 Act, inserting subsections (3A) to (3D) into s.16 of the 1978 Act).
Some professionals in the field argue strongly for contact in adoption if at all possible. Others feel equally strongly that adoption should not be used if there is contact, as the complete legal break of adoption is contra-indicated when there is an actual continuing link. Resolving these difficulties is not really possible simply by introducing or changing statutory and regulatory provisions. However, if greater openness can be achieved in adoption, as discussed above on pgs. 12-13, this could assist the development of practice about contact.
It would appear that the research is still balanced as to whether there are always benefits for children in maintaining contact with their birth families when they are permanently placed away for home. For a discussion of the academic debates about this, see Quinton et al (1999). For a discussion of the complex practice issues, see Lowe et al (1999), Chapter 15, pg. 278, and BAAF's Good Practice Guide: Contact in Permanent Placement (1999). Among their 'Concluding points' on contact, Lowe et al say at pg. 323:
'However, we should make it absolutely clear that we are by no means committed to the view that any form of contact between the child and birth family is always in the child's interest. On the contrary, we take the view that the issue of contact has to be governed by the welfare of the particular child (including taking into account the child's own wishes and feelings) in his or her circumstances which may change from time to time.'
And at pg. 326:
'Finally, the child's [authors' italics] needs must always be the priority when planning for contact. Sometimes, the needs of the child get confused with the needs of birth parents, especially when the same social worker is allocated to both. Granting birth parents contact to alleviate their loss, or to persuade them to agree to the adoption, can have negative implications later, and can cause conflict at other levels.'
This echoes the questions:
- whose benefit is the contact for?
- what is the purpose of the contact?
The benefit should always be for the child, not the adults involved. In any proceedings about legal arrangements for a child, the child's welfare is the paramount consideration: s. 6(1)(a) of the 1978 Act and s.11(7)(a) and s.16(1) of the 1995 Act. However, in permanence proceedings for children, particularly where the order sought would remove or significantly diminish birth parents' responsibilities and rights, children's welfare is not necessarily best served by trying to build or maintain a bond by contact with birth parents. This contrasts with the situation in disputes between separating parents.
The purpose of contact is not the same in these two different types of legal proceedings. If there is an existing bond between the child and parents in permanence proceedings, and it will positively benefit the child to maintain it, then contact should be considered. If the purpose is to let the parent stay in touch, without the child benefiting positively from that contact, then in the context of a new legal care arrangement, contact will not normally be in the child's interests.
However, in the situation of separating families, it may be of positive benefit to a child to maintain even a weak bond, or build one, with the absent parent, because s/he is and will continue to be part of the family. Contact in a separated family was considered by the First Division in White v White 2001 S.L.T. 485: see the opinion of Lord President Rodger, particularly in paras. [16] and [17], pg. 490.
If it is wished to promote permanence and adoption, and encourage the use of contact where appropriate, taking the child's welfare as paramount, then there needs to be a debate about the issues to develop future law and practice. Some suggestions include:
- Encouragement of a full debate among all professionals involved in permanence about the nature of adoption and other orders; whether there really is a need for secrecy in all cases; and the use of contact in adoption and other orders, whether direct or indirect.
- Encouragement of an awareness that ongoing contact in permanence should only be considered if it is to benefit the child in his or her new life, and not simply as a means of building or keeping a link which has no meaning for the child.
- Encouragement of prospective adopters' and other carers' awareness that good contact arrangements are to benefit the child, and not to threaten their care and position.
- Provision of a clear legal mechanism for contact orders in freeing (or any equivalent pre-adoption order), adoption and any other orders, ensuring that contact orders can be used in all circumstances, not just 'exceptional' ones.
- Promotion of other options for permanence where there is ongoing regular contact which is beneficial to the child, and another option may be better than adoption.
QUESTIONS:
3. What are views on the place of contact in permanence?
4. Should the law allow the possibility of contact conditions in all circumstances and all types of orders?
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