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4. Contact and Conditions in Orders for
Performance
Summary
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)
Current law
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
Contact
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.
Practice issues
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)
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