Adoption is a legal procedure in which the parental responsibility for a child, or children, who cannot be raised by their birth parents, is transferred to a new family in which the child, or children, become permanent and legal members of that family. The making of a Placement Order under s.1 of the Adoption and Children Act 2002, in very difficult and often painful circumstances for a birth parent or parents when the Court has dispensed with a parents consent, is a life changing and some would say draconian decision. Whether that adoption should be “open” (i.e. providing or permitting some form of direct contact and/or more frequent indirect contact to continue between a birth parent and the child) or “closed” (as in none or minimal contact), is a very difficult topic both for social work and legal professionals.
When a family adopts a child, it is always a difficult decision for a social worker as to whether the adoption should be that of an open adoption, or closed. Inevitably these can be complex and even nuanced decisions. Indeed this is not an easy choice for adoptive families to make when undergoing the adoption process. There are no hard and fast rules or laws in respect of open and closed adoption, but the question as to whether a child should have direct contact with its birth family when placed with prospective adoptive parents needs to be considered during the care proceedings and determined by the Judge before the placement Order is made. Often, these are difficult conversations (and a difficult decision) for all concerned.
Legal professionals and experienced Judges often take the view that in the absence of any evidence that the birth parent will present any risk to the adoptive family or a risk to the child for example through undermining the adoptive family placement, then an open adoption with ongoing contact should be in the interests of the child
Balanced against this however are often arguments that discussion about open adoption arrangements may reduce the “pool” of prospective adopters or even may impact upon the possibility of a successful “match” as between the adopted child and adoptive family. Nevertheless, it is right to pose the question; Is it in the interests of the child for an open adoption?
- An open adoption allows contact between the biological parents and the child. Although the adoptive parents will have parental responsibility, and hold the legal parental rights of the child, the birth parents are still able to play an active role in the child’s life. Some families may opt for semi-open adoption, by which a specialist caseworker, or other form of mediator, will pass information between the birth parents and adoptive family such as letters, photographs, and gifts.
- Semi-open adoption enables the child and their birth family to maintain a relationship, while protecting the privacy of the adoptive family and the child. Both forms of open adoption allow transparency for the adopted child as to who their birth parents are and the background they have come from.
- A closed adoption however, is very much the opposite. Both the adoptive family and the child will have no contact with the birth parents of the child, and personal information regarding the child or adoptive family is rarely provided to the birth parents. Similarly, the amount of information of the birth family to the adoptive family may vary depending on the stance taken by the agency arranging the placement. Closed adoption ensures strict confidentiality about the identity of both the adoptive and biological parents and can seem ‘safer’ to many families and professionals.
Advocates for closed adoption suggest that it may be most suitable and appropriate where the child has been subject to significant abuse and neglect and removed from their birth parent’s care by the Local Authority and contact with the birth parents is therefore not appropriate or safe. Some suggest that a closed adoption allows the child to start a new life away from any risk of harm. Arguably closed adoption may be appropriate where there is a significant risk that the birth parents may seek to abuse their contact with the child during an open adoption and remove the child from the adoptive family’s care.
By contrast, open adoptions focus on transparency between the adoptive and biological families, therefore it is argued open adoptions can be supported where the adults can communicate to the benefit of the children understanding who their birth family are. Arguably, open adoptions may be all the more needed for older children as they are already have information about their biological parents, and family. Prohibiting a child’s contact with their biological family, whether direct or indirect, may be detrimental to the child’s mental and emotional wellbeing and run the risk of creating a turbulent relationship between the child and the adoptive family. Open adoptions also allow the child to maintain a relationship with their wider biological family such as any siblings who may have been adopted by another family promoting a family unit and maintaining a sense of identity for the child. This is something that The President of the Family Division, The Right Honourable Sir Andrew McFarlane, considered at the ‘Parents of Traumatised Adopted Teens Organisation’ Conference in May 2024. Sir Andrew McFarlane states that ‘the potential for familial relationships to continue and be nurtured through contact may be of real benefit during and beyond into adulthood'. Sir Andrew McFarlane goes on to consider the work of others, exploring the benefits of open adoption, particularly that of Stott and Gustavsson (2010). These experts, as cited within the recent and topical speech of the President of the Family Division and through their research, agree stating that child welfare policies have indeed failed to recognise the importance of maintaining these established familial relationships when a child is placed into care, or is adopted.
It should be noted there is a potential significant impact a closed adoption may have on the child, and their mental wellbeing. A closed adoption can be difficult for the adopted child, as it runs the risk that their sense of identity may be taken from them, especially if, and when, the child or young person is old enough to understand what adoption is. The child may find it difficult to understand the process and feel a sense of abandonment from their birth parents, therefore information about their biological family history may be vital in allowing the child to understand why they were adopted, and protect their emotional wellbeing.
Similarly, the lack of privacy in open adoptions may also cause controversy within the family dynamic. The adoptive or biological family may feel the other is becoming too involved in the child’s life and the concept of ‘sharing’ a child may cause conflicts between the families and/or the child.
Given the arguments explored above, it is evident that the question of whether adoptions should be open or closed are personal to each child and family. This decision must be made in light of the current family dynamic of both the adoptive, and biological family, as well as the age, nature and wishes of the child. Consideration must also be given to family history and the circumstances in which the adoption has risen.
Arguably the child’s welfare and, physical and mental wellbeing is at the heart of this debate and therefore plays a vital role in determining which type of adoption is most appropriate. No two cases are the same, and where an open or closed adoption may work for one family, it may not work for another. The Right Honourable Sir Andrew McFarlane’s speech at the ‘Parents of Traumatised Adopted Teens Organisation’ Conference in May 2024 is a much needed platform that raises this very issue, and which shall hopefully give rise to greater considerations in respect of Adoption. Sir Andrew McFarlane’s concluding comment provides that ‘the question of contact should never be seen as an ‘add on’ issue, either at the placement order stage, or at the trial adoption. Rather, it should be centre stage, and seen as an integral part of the child’s support package’. It is evident that the question of open or closed adoption is not a decision that can be taken lightly, neither by the family or the Courts, and must play a pivotal role within Child Law cases.
The author of this article does not pretend to know the answer but hopes that this article may at least add a little to an important debate.
Any cases that involve care proceedings or adoption as a legal option before the Court must be considered with sensitivity and requires the benefit of expert legal advice. If you need assistance with a child law matter, such as adoption, call our Child Law team today on 01484 821 500, or if you prefer and discreetly via an online contact form and we will be in touch at a time convenient for you.
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.