Well private and public law are very, very different animals. (Judge 1)
The problem with a contact order in public law context is that it promotes litigation which really isn’t helpful in the public law arena. (Judge 2)
What is striking about the preference for agreement, common assumptions about contact orders as inflexible and unenforceable, and about courts as being ‘child-unfriendly’, is the extent to which they mirror the concerns about contact orders in private law contact disputes. And yet in practice the use of court orders differs substantially. As Bainham has commented:
The only way in which post-adoption contact can be ensured is by court order. No-one doubts that contact orders are frequently necessary in the private law to ensure that contact happens and there is no good reason why the public law should be any different. (Bainham, 2015: 1362)
One judge also highlighted the different expectations about contact:
…in care cases, you know, children will see siblings and see parents once a month / four times a year, yet if it was a private law case, it’ll be once a fortnight and you will not tell me there’s a difference. I can’t figure out what the difference is….You ask that question of a social worker in a witness box, or a guardian, they look at you as if you are mad and they chuck out stability, security, undermining placement. And with mum and dad that would be different why? Tell me. So I don’t know. I don’t get it. (Judge 3)
A barrister suggested that in the context of children in care the ‘lack of training’ of professionals and ‘financial considerations if they don’t live locally to one another’ (Barrister 5) were distinctive factors about contact in the public law context.
In private law disputes the benefits of contact with non-resident parents, in reality usually fathers, create a presumption about contact that is difficult to rebut and has been strengthened by recent statutory reform (Kaganas, 2018; Fortin et al, 2012). The majority of private law contact disputes are resolved without going to court, but where applications are made, court orders are the norm rather than the exception. Moreover, the resolution of disputes about contact outside of the courtroom, whether by legal advice or mediation, operates in the shadow of the very clear statements from the courts about the presumption about contact (Kaganas, 2018). Consequently, while the advantages of reaching an agreement about contact are emphasised in private and public law, in the latter context adopters, in particular, are not under any pressure to agree. Case law, guidance and our findings here make clear that while leave is likely to be granted where there was a prior agreement about contact, on the substantive issue the making of an order against the wishes of adopters is exceptionally unlikely.
The contrast between representations of and responses to adopters unwilling to agree to contact between siblings, and mothers unwilling to agree to paternal contact is stark. Concerns about a perceived failure to address the problem of ‘intransigent’ and ‘unreasonable’ mothers in private law has resulted in expressions of judicial anxiety about the public confidence in the courts, an increased willingness to countenance enforcing contact orders by both punitive and therapeutic measures, and legal reform (Kaganas, 2018, 2010).
It is important to emphasise that while our findings suggest that the resistance to contact by adopters may indeed be at times ‘intransigent’ and ‘unreasonable’ we are not suggesting that adopters should be treated more like mothers in private law proceedings. The contexts are substantially different and siblings are not parents and the assumptions underlying developments in private law have been subject to rigorous criticism (Fortin, Ritchie and Buchanan 2006; Kaganas, 2018). But noting the contrast is valuable to the extent that it highlights the contingency of law’s role in resolving disputes about contact. In particular the comparison highlights how assumptions about contact post-adoption and contact post-parental separation are both dominated by understandings of, and political investments in, the value of enhancing parental responsibility. In the context of non-resident fathers this has led to a more active, invasive role for law, whereas in the context of adopters it has led to the opposite. In both contexts it is possible to question the extent to which it is assumptions about the role of these parents, as opposed to a focus on the needs of individual children, which informs decision making, and in particular understandings of the role of the courts.
When judges in our research considered the differences between public and private approaches to contact orders many of them identified that the purpose of them in the private context was to resolve a conflict which the parties were unable to.
…if you need an order at all it’s because the parents simply cannot agree…you don’t make an order in private law unless it’s better for the child to do so than not to do so but if you’ve got two parents who are at loggerheads then it almost invariably is better so that everybody’s absolutely clear what is going to happen. (Judge 1)
I think with private law, what you’re having to do is to step in and be a parent where the parents have fallen out so badly they can’t exercise their parental responsibility in harmony, so you are a kind of uber parent who’s coming in and making a regime for the arrangements for the child because the parents aren’t able to do it for themselves. (Judge 2)
The judges also emphasised that their involvement was premised on the presumption about the benefits of contact with a non-resident parent.
Well in private law proceedings, it is a given that the purpose of the proceeding is to try and preserve the role of both parents in the life of the child. That’s a very different scenario from the scenario you get in care proceedings and in adoption proceedings. (Judge 4)
In private law proceedings you will not necessarily, although that’s not a universal rule, you will not necessarily be ruling one parent out and saying that parent has nothing to offer this child. In care and adoption proceedings that’s exactly what you’re saying sometimes. (Judge 4)
Similarly, in explaining why litigation should be avoided in public proceedings a judge noted that ‘it fires up the parents again’ (Judge 2).
What is noticeable in the above comments by the judges is the centrality of parental responsibility as a factor that legitimises recourse to the making of contact orders. Both the inability for parties to resolve a conflict and the potential benefits of clarity apply just as much in sibling conflicts in public law cases. But in the public law context parental responsibility is not the fault line. Birth parents are severely compromised when attempting foreground arguments about sibling contact; whether or not their children are adopted. And the courts are reluctant to instruct either local authorities, as the corporate parent for children in care, or adopters in how to exercise their parental responsibility.
Piper links the underlying approach to the wider context, observing that:
The currently important political message that individuals must take responsibility for their lives, their children and their actions is not a novel message: the giving of priority to the exercise of parental responsibility, if necessary over other aspects of the child’s well-being, has a very long history. (2000: 271)
Applying this framework to contact disputes about siblings in public law helps explain the courts’ reluctance to make orders, despite the importance of sibling relationships being widely recognised. Managing inter-sibling child relationships falls squarely within the remit of parental responsibility.
In contrasting public and private law approaches to contact orders, while the different role of parents is critical, it is also possible to identify a distinct approach to assessments of children’s best interests.
One of the solicitors we interviewed suggested that the needs of children in public law are perceived differently.
…one of the reasons why we’re so ready to separate in public law system is because the children come from dysfunctional homes and have suffered significant harm, there’s an assumption – and it may well be correct – that these children are damaged goods in some way, have higher levels of need..they’re perceived to be more complex, more damaged and therefore…people are less willing to…worry about things like contact between children because the focus is on just dealing with all those observable symptomology in the child. (Solicitor 6)
As the solicitor notes, these assumptions may well be correct. What is noticeable here is the extent to which the emphasis on the value of stability, which might preclude contact, mirrors the approach to understanding children’s
118 Siblings, contact and the law: an overlooked relationship? Full Report
welfare in private law disputes in an earlier period. Neale and Smart identified that prior to the current dominant ideal in private law which emphasises co-parenting, biological families and, consequently, an enhanced role for non-resident fathers, the dominant assumptions about child welfare emphasised continuity of care, stability and avoidance of conflict, and that these ideas were supported by the ‘scientific’ research at that time (1999).45 The
change in private law occured not by law, but by the emergence of new assumptions about ‘best interests’ which reflected shifting social and political attitudes. In the same way, the approach of the courts to sibling contact is most likely to change not through any specific legal reform but by a shift in assumptions about children’s ‘best interests’.