Re R (A Child) (Adoption: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Date | 2007 |
| Court | Court of Appeal (Civil Division) |
Contact – Contact order – Adopted child – Half-sister of child applying for leave to make application for contact order – Correct approach to be taken in assessing application – Whether judge entitled to refuse leave – Children Act 1989, s 10(9).
The six-year old child had been taken into care. Her 17-year old half-sister remained in contact with her whilst she was in foster care and during the first year of her placement with her prospective adoptive parents. The original arrangement had been for direct contact, three times a year, and the local authority had originally stated that the arrangements (as opposed to more extensive contact as previously sought by the sister) would meet the child’s needs. However, the sister was subsequently informed in writing that such contact had had a detrimental effect on the child’s stability, and that reduced contact was proposed. The sister applied for leave to apply for a contact order, to continue after the making of the adoption order, to reinstate the previous arrangement of contact. The judge refused the application on the basis that the court would be most unlikely to make a contact order contrary to the prospective adopter’s wishes and that, accordingly, an application for an order was unlikely to succeed. The sister appealed against the judge’s refusal. The sister submitted, inter alia, that the judge had failed to pay sufficient attention to the original recommendations and offers of contact, from which departure had not been justified. She contended that the judge had misdirected herself when considering that the court would be most unlikely to make a contact order contrary to the prospective adopter’s wishes and when concluding that an application for an order was unlikely to succeed. The court also considered the proper approach to be taken by a judge in determining applications for contact orders in the light of the provisions of s 10 (9) of the Children Act 1989.
Held – (1) The language of s 10(9)(a) meant that a judge was bound to consider the nature of the proposed application in the instant case. Neither s 10(9) of the 1989 Act nor the authorities prohibited a broad assessment of the nature and merits of the proposed application. Rather, what was prohibited was simply to apply the criteria that there was no realistic prospect of success. In the instant case, the sister had proposed to apply for a contact order in respect of adoptive parents, where the order would continue after the adoption order had been made. In the circumstances, the court could not simply shut its mind to the fact that the sister would be making such an application.
(2) The court was bound to have regard to the jurisprudence that contact orders were extremely unusual in adoption proceedings, and to the practice of the court of regarding such applications as unusual. To have regard to the nature of the application under s 10(9)(a) would inevitably involve consideration of the jurisprudence relating to the circumstances in which a contact order might or might not be made. The imposition on prospective adopters of an order for contact remained extremely unusual. Accordingly, a court could be reluctant to make an order in the face of reasonable opposition of adoptive parents. Whilst the judge had not explicitly applied the criteria s 10(9) of the 1989 Act, she had reached the correct conclusion in all the circumstances of the case.
Accordingly, the appeal would be dismissed.
Cases referred to in judgmentsB (minors) (application for contact), Re[1994] 2 FCR 812, [1994] 2 FLR 1, CA.
C (a minor) (adoption order: conditions), Re [1988] FCR 484, [1988] 1 All ER 705, [1989] AC 1, [1988] 2 WLR 474, [1988] 2 FLR 159, HL.
H (a child), Re[2003] EWCA Civ 369, [2003] All ER (D) 290 (Feb).
J (leave to issue application for residence order), Re[2002] EWCA Civ 1346, [2003] 1 FLR 114.
KD (a minor) (ward: termination of access), Re [1988] FCR 657, [1988] 1 All ER 577, [1988] 1 AC 806, [1988] 2 WLR 398; sub nom Re KD (a minor) (access: principles) [1988] 2 FLR 159, HL.
M (minors) (contact: leave to apply), Re[1995] 3 FCR 550; sub nom Re M (care: contact: grandmothers application for leave) [1995] 2 FLR 86, CA.
T (a minor) (contact after adoption), Re[1995] 2 FCR 537, [1995] 2 FLR 251, CA.
T (minors) (adopted children: contact), Re[1996] 2 FCR 118, [1996] 1 All ER 215, [1996] Fam 34, [1995] 3 WLR 793, [1995] 2 FLR 792, CA.
AppealThe sister appealed against the decision of Judge Hughes QC, dated 8 June 2005, whereby she refused the sister’s application for leave to apply for a contact order relating to the child who had been placed with prospective adoptive parents. The facts are set out in the judgment of Wall LJ.
Jonathan Bennett for the sister.
Peter Horrock for the local authority.
Andrew Bagchi for the prospective adopters.
Andrew Norton for the guardian.
WALL LJ.
[1] This is a case which has been extremely well argued on all sides and we are very grateful to counsel for their concise written and oral submissions, and to those instructing them for the work that has plainly been done in the case. We are also grateful to counsel for the guardian for appearing today to explain the guardian’s position and for a sight of the guardian’s latest report. It is a sensitive case and one in which one cannot but have considerable sympathy for the principal participants, whom in due course I will identify. It is, however, a case which to my mind reporting restrictions should apply. Although I will identify the parties in some instances by name, any report should contain only their initials.
[2] KJR is 17. She was born in May 1998. She has a half-sister, LRR, who will be seven at the end of this month. The parent they share is their mother, LR.
[3] For reasons which we have not investigated or been told in detail, it is clear that LR failed to care for L, with the result that by June 2002 she was in foster care, and by July 2002 she was the subject of an interim care order in favour of the local authority in the case. She was, of course, at that point four.
[4] When the final care order in the proceedings was made on 25 November 2002, the local authority’s care plan for L was for permanent placement outside the natural family in adoption. This is wholly unsurprising, given her age and the absence of any family member who could care for her. Nobody in the current proceedings disagrees with the proposition that L should be adopted, and indeed adopted by her current prospective adoptive parents, who are represented before us and who have issued proceedings in the local county court. Those proceedings were due to be heard on 10 August, but despite an indication from this court that the adoption could proceed, the circuit judge decided to adjourn the adoption proceedings to await the outcome of this application.
[5] The application before the court today derives from K’s wish to maintain contact with L post-adoption. Nobody says that the half-sisters should not remain in contact, but what is in issue is the amount and nature of that contact. The disagreement about it between K, the local authority and the prospective adopters led K to apply to the court for leave to make an application for contact with L. That application came before Judge Judith Hughes QC, sitting in this building, on 8 June 2005. She refused leave, and gave her reasons in writing for doing so on 16 June. K sought permission to appeal, and on 22 July I directed that the permission application should be listed for oral hearing on notice to the other parties, with appeal to follow if permission to appeal was granted. In taking that course, I emphasised the extreme sensitivity of the application and the difficult area of the law which was engaged. I explained that it might well prove in due course that the judge had been right to refuse leave, but that nonetheless it was appropriate in the circumstances for K to have the opportunity for her application to be ventilated before a full court.
[6] In the ultimate analysis I pointed out that we would be talking about L’s welfare and I pointed to the fact, which I shall return to during the course of the judgment, that a court at first instance is unlikely to impose an order for contact, even were K to be successful, against the wishes of adoptive parents. There was a very delicate balance to be struck, which required a great deal of thought and selflessness on the part of all parties. The key relationship was plainly that between L and her adoptive parents, but everyone agreed that the relationship between L and K was itself important and ideally there should be agreement between the parties about the contact between the two half-sisters.
[7] Unfortunately, agreement has not been possible, although I urged further negotiation and discussion. May I make it quite clear that although I did urge there should be further discussions, I attribute no blame whatsoever to anyone for the fact that a negotiated outcome has not been possible. We have been told today at the Bar that on 10 August a considerable amount of time was spent at the county court discussing the matter. I am entirely satisfied myself that all the parties in this case have entirely genuine positions, each of which is honestly held. It therefore falls to us to deal with the application which is before the court.
[8] Before turning to the legal arguments, therefore, I need to sketch out a little more of the background in so far as it is known to us.
[9] I think I have already made it clear that it is common ground that K’s relationship with L is a strong one, and important to both of them. We can I think legitimately infer from the documentation that to some extent the deficiencies in their mother’s care was made up by K in caring for L. There is no doubt, I think, from the papers that K feels a great deal of responsibility for L, but at the same time the local authority is correct to point out that that is not K’s role and that she was placed...
To continue reading
Request your trial
-
Re P (Children) (Adoption: Parental Consent)
...(placement order), Re[2006] EWCA Civ 1016, [2007] 3 FCR 308, [2007] 1 FLR 1106. R (a child) (adoption: contact), Re[2005] EWCA Civ 1128, [2007] 1 FCR 149, [2006] 1 FLR 373. S (a child) (adoption order or special guardianship order), Re[2007] EWCA Civ 54, [2007] 1 FCR 271, [2007] 1 FLR 819. ......
-
Re B (A Child) (Post-Adoption Contact)
...consent),Re[2008] EWCA Civ 535, [2008] 2 FCR 185, [2009] PTSR 150, [2008] 2 FLR 625. R (adoption: contact),Re[2005] EWCA Civ 1128, [2007] 1 FCR 149, [2006] 1 FLR T (adoption: contact),Re[2010] EWCA Civ 1527, [2011] 1 FLR 1805. Appeal The natural parents of the child, B, appealed from Her Ho......
-
Oxfordshire County Council v X and Others
...the birth parents’ application ought to have been dismissed and the appeal would be allowed; Re R (a child) (adoption: contact)[2007] 1 FCR 149 applied (see [5]–[6], [26]–[31], [35], Per curiam. It is only where it is clear that there is an unavoidable conflict of interest, as a matter of l......
-
T (A Child) (Adoption: Contact)
...but rather to keep his eye trained upon the paramount consideration (see [21]–[25], [31], below); Re R (a child) (adoption: contact)[2007] 1 FCR 149 and Oxfordshire CC v X[2010] 2 FCR 355 (2) It was established that everyone was entitled to a fair hearing under art 6 of the European Convent......
-
Table of Cases
...Re [1967] 1 WLR 34, [1966] 3 All ER 613, 65 LGR 65, ChD 66, 67, 69 R (Adoption: Contact), Re [2005] EWCA Civ 1128, [2006] 1 FLR 373, [2007] 1 FCR 149, [2006] Fam Law 9 96, 97, 98, 99 xxviii Adoption Law: A Practical Guide R (Children) (Confidential Information: Protecting Anonymity), Re. Se......