The principles that govern a child’s post-adoption contact with his or her birth family have developed from a position that there should be a complete break at the point of adoption. The Adoption Act 1976 outlawed private adoption agreements, making adoptions the responsibility of local authorities. It also allowed for ‘letterbox contact’ – the exchange of letters, cards and photographs via the local authority (LA).
Two provisions in the current Adoption and Children Act 2002 concern contact. Section 26 (s26) of the act enables LAs to facilitate birth family contact. It is rarely used, but without a s26 order, there is no obligation on a local authority to facilitate direct contact, beyond the possibility of letterbox contact. The order ends when an adoption order is made, but it can set the tone for the court and the local authority for the final adoption hearing in determining the child’s best interests for post-adoption contact.
The second provision is the new section 51A (s51A) of the 2002 act, which enables the court at the final adoption hearing or afterwards to make an order for post-adoption contact.
Sibling contact is addressed less often than parental contact, but was at the centre of a recent case, in which, unusually, a s51A order was made.
Re C, D, E and F (ACA s51A: contact order after adoption) [2025] EWFC 436 (B) concerned four children removed from their parents following serious neglect. The two older children were placed for adoption, as subsequently were the younger two, but with different adopters.
Sibling contact under s26 was ordered for the children to see each other at least twice a year. The LA failed to comply and the children had no direct contact with each other for over a year. Indeed, the LA did not even tell the adopters about the s26 order before they were introduced to the children.
At the final adoption hearing, the adopters, the birth parents and the children’s guardian all agreed to post-adoption sibling contact.
In normal circumstances, a s51(A) order would not have been considered necessary. But the court found that the LA had not given an adequate explanation for its failure to comply with the s26 orders. It also found that its opposition to a s51(A) order was confused and inconsistent.
The court was not confident that the LA would assist the adopters and the children with post-adoption contact, although it was the view of all that it was in the children’s best interests. The local authority was found not to have adequately explained the failure to comply.
The adopters, the birth parents and the guardian took the position that a s51A order was not necessary as all agreed that there should be direct contact between the children.
However, the court remained concerned about the local authority’s failure to comply with the s26 order and believed that the LA contact plans filed were generic, confusing and inconsistent. Those plans had not taken into account the best interests of the children regarding future sibling contact.
The judge considered that although there was no need for a contact order in respect of the birth parents and the children, she was not confident that the local authority would act in the best interests of the children when it came to direct post-adoption sibling contact.
Although the judge did not have the power to order the LA to put support in place for sibling contact, it was found to be legitimate to use a s51A order to underline to the LA the need for this crucial aspect of the children’s welfare, given the LA’s conspicuous failure to arrange contact after the placement order. A s51A order covering sibling contact was therefore made.
Reform
‘Adapting adoption to the modern world’ has been the title of two recent speeches by Sir Andrew McFarlane (pictured), president of the Family Division. Post-adoption contact has been the focus of these speeches and of McFarlane’s belief that change in the current approach to post-adoption contact is necessary to meet the needs of children. Without this shift to more ‘open’ adoption, he fears there is a risk of undermining the whole adoption system. The letterbox system is clearly dated and unsatisfactory in a digital age.
McFarlane’s presentations focused on considerable recent research, reports from parliamentary committees and the judiciary’s own Public Law Working Group on the benefits of post-adoption contact.
All agree that the current approach to post-adoption contact is not fit for purpose and needs changing to meet the needs of children in the modern world. These bodies of experts warn that failure to modernise contact threatens to undermine the whole adoption system.
They also all recognise the crucial nature of supporting sibling contact, as these are the relationships that will be the most enduring after the adults are no longer around.
Naomi Angell is a consultant at Osbornes Law, London
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