Re T (Adoption: Contact)

This is an appeal by DMT ("D") against an order made by Her Honour Judge Fisher in the Nottingham County Court on 10 May 1995 dismissing D's application for leave to commence contact proceedings in respect of her half brothers and sister D, G and C T.

D, D, G and C are all the children of R T. D was born on 4 February 1975 and so is now aged 20: her father is L N. D was born on 3 March 1980 and is now aged 15; G was born on 28 October 1982 and is now aged 12; C was born on 29 October 1984 and is now aged 10; their father is C T senior. D, G and C were all taken into care in 1986 as a consequence of allegations of sexual abuse within the family. D, who had until that time lived with the children all their lives, initially had contact with them while they were with foster parents, but that contact had ended before the children were placed with prospective adopters (Mr. and Mrs. H) in January 1990. In November 1990 Mr. and Mrs. H applied for adoption orders in respect of the three children and on 8 June 1992 D applied for a contact order.

Nottingham County Council, in whose care the children were, and who were the adoption agency, resisted D's application for contact. The affidavit by the social worker, Mary Reville, contained the following passages:-

"From the information given to me, it is apparent the children have accepted contact has ended with their parents and siblings. The prospective adopters did, in fact, accept the children on the basis there would be no contact between the children and the children's parents or siblings. The children are well settled in the area in which they reside. I am informed C has only fleeting memories of life in the family home and G and D have a better recollection of that period. The issue of contact has not been raised with the children, although D has expressed a desire for contact with D, the last time being in January 1990.

I am of the opinion contact between the children and members of the natural family would undermine the adoptive placement, given the undertaking to the prospective adopters that such contact would not occur. The Applicant, D, is now living with her stepfather, a convicted Schedule 1 offender. He is currently denying that he committed offences for which he was convicted. D supports this contention. Contact between the children and D would raise the question from the children as to why they remain in care when their sibling is allowed to live with their father……

It is envisaged some contact would be arranged by an exchange of information between the Applicant and the children on a once yearly basis. An annual report of the progress of the children, together with photographs, would be sent to the Applicant via the Social Services Offices. She would be allowed to forward to the adoptive parents, via the Social Services, for them to give to the children, photographs of herself and some detail of the progress of her life. No exchange of greeting cards would take place. The prospective adopters are agreeable to that plan and it would go some way to provide a link should the children, on reaching the age of 18 years, wish to renew contact with the Applicant or members of the natural family. D has said it is her wish for the children to be happy and, I feel, that can only be achieved by them remaining in their present placement. D has said, if personal contact is denied, she will accept the Social Services plan for annual exchange of information."

The guardian ad litem appointed for the children, initially in the contact proceedings, but subsequently also in the adoption proceedings, took a similar view. She said:-

"….. I feel that face to face contact is not in the best interests of all children. Even in respect of D I feel that there are too many areas of potential conflict for it to work. D has said that she is not prepared to consider contact by letter as she feels that she will not be allowed to write what she wants to. I have discussed the situation at length with the social worker and Mr and Mrs H. They are prepared to write a yearly report for the family which would provide general information about the children's welfare. The report would have to be sent to the local Social Services office for distribution to D and Mr and Mrs T.

In the light of the guardian ad litem's report D withdrew her application for contact with the children and the adoption order was duly made. It is generally accepted that there was an informal agreement that Mr. and Mrs. H would provide annual reports on the children. However, when the time came for the first such report to be provided, in December 1993, none was forthcoming. Enquiry by D's solicitors of the local authority produced the following reply dated 22 July 1994.

"The County Council have been in contact with the adopters of D, G and C about the question of a progress report. It is their view that it would not be in the interests of the children for a report to be supplied for the time being. I am sure you will appreciate that the confidential nature of the placement precludes any discussion of the reason or reasons for this."

It was in the light of that letter that on 9 March 1995 D applied for leave to make an application for a contact order. Leave was necessary because of the provisions of section 10 of the Children Act 1989. Notice of the application was served on the Nottingham County Council who were represented before the judge. Although the application did not specify the nature of the contact for which D sought leave to apply, in opening her application before the judge her counsel, Mr. Mark Rogers, made it clear that she sought no more than that which was expected at the time of the making of the adoption orders, viz. annual reports, and without any reciprocal information about D being given to the children. It was this application that the judge dismissed. After saying that there was no change in the circumstances "as such" since the adoption order was made and that she accepted that D was genuine in making her application, she continued:

"There are a number of considerations to which I have helpfully been referred. S.10(9) of the Children Act 1989 sets out the considerations for the Court. The Court in particular should have regard to (c) any risk there might be of that proposed application disrupting the child, or children's lives in this situation, to such an extent that he or she would be harmed by it. There is, of course, no information today before the Court about any potential risk, but looking at the matter overall and in the light of all the appropriate principles applicable to any application following an adoption order having been made, I find myself unable to say that it is appropriate for leave to be granted."

Section 10(9) of the Children Act 1989 , so far as relevant, provides:-

"(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to -

(a)the nature of the proposed application for the section 8 order;

(b)the applicant's connection with the child;

(c)any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it….."

The approach to be adopted by the court on an application for leave under section 10(9) was considered by this court in In Re A (Minors) [1992] Fam. 182. Put shortly, the children's welfare is not the paramount consideration on such an application, and the court must comply with the provisions of the sub-section and have particular regard to the factors there mentioned.

Two more recent cases have been concerned with contact to children who had been recently adopted; in each case it was the natural mother of the child who wanted contact. In re C (Adopted Child: Contact) [1993] Fam. 210 was at first instance before Thorpe, J. Apart from dealing with questions of the procedure to be adopted on an application for leave to apply for contact to an adopted child, as to which I shall say more later, the judge said an applicant in such a case would have to show a fundamental change of circumstances before the question of contact would be re-opened. More directly in point is the decision of this court in Re T (A Minor) (Contact after Adoption) [1995] 2 F.C.R. 537. In that case the adoption was an "open" adoption, i.e. the adopters were willing that the natural mother should retain some measure of contact with the child, but there was disagreement as to the amount of such contact: the adopters were prepared for once a year, the mother wanted two or three occasions each year. The judge decided that the contact should be once a year but, against the wishes of the adopters and the advice of the social workers and the guardian ad litem, made an order for such contact. The

adopters appealed against that order and their appeal was allowed by this court. The leading judgment was given by Butler-Sloss, L.J. from which I cite the following passages (at pp. 542–544):-

"In this case the only argument, really, that remains is whether the once a year, which was agreed to by the...