IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HER HONOUR JUDGE HUGHES QC
(sitting as a deputy judge of the High Court))
B e f o r e :
LORD JUSTICE LLOYD
|R (A CHILD)|
Smith Bernal Wordwave Limited
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MR PETER HORROCK (instructed by Cambridgeshire County Council, Legal Services, BOX RES 1001, Shire Hall, Cambridge CB3 0AP) appeared on behalf of the Respondent Local Authority
MR ANDREW BAGCHI (instructed by Messrs Chapple & Co, March, Cambridgeshire PE15 8LA) appeared on behalf of the Respondent Adoptive Parents
MR ANDREW NORTH (instructed by Messrs Kirkpatricks, Peterborough PE1 1JX) appeared on behalf of the Respondent Guardian
Crown Copyright ©
"The Social Worker has identified prospective adoptive carers who are open to the plan of direct contact between [K] and [L] as long as there is no risk to [L's] placement with them. The prospective adoptive carers have not yet however been matched with [L]. The potential match is due to be considered by the Adoption Panel on the 23rd May 2003 following which a formal decision as to whether [L] is matched with these carers will need to be taken by the Agency Decision Maker."
"I can advise you that the Adoption Panel sitting on the 23rd May 2003 recommended that [L] be matched with the prospective adoptive carers presented to Panel. I understand that this recommendation has now been approved by the Agency Decision Maker. Recommendations were made that there be direct sibling contact between [L] and [K] on three occasions per year. The Social Worker is to make arrangements to introduce [K] to [L's] prospective adoptive carers in a bid to establish a good working relationship and to enable [K] to feel more confident about [L's] move."
"Our understanding hitherto from [K] was that she wanted to keep in regular contact with her sister [L]. It now appears that the contact having been reduced over recent months - from every Monday to every other Monday and having last seen her sister on the 4th of July - [K] is absolutely distraught at not being able to have contact with [L]. It also appears that the relationship with her grandmother is not as good as we would have hoped.
Having discussed this matter at length with her, it appears that in reality she wants nothing more than to be placed with [L] in her new home. We were trying to ascertain as to whether it has ever been considered that [K] could also be placed in the prospective adoptive placement with her sister. These siblings have never been separated before for any particular length of time and certainly [K] is absolutely convinced that her sister will be just as distraught as she is at being separated.
[K] wishes us to reassure the Council that she has no wish whatsoever to upset the placement."
"Chris Pickin [that is the social worker] has worked very closely with [K] with regard to the issues surrounding [L's] placement. After a number of discussions Ms Pickin felt that [K] had moved on a great deal and was expressing a good understanding of the need for [L] to settle and make attachments within her new family, and therefore the need for direct contact to be reduced.
[K] has expressed a personal view to Ms Pickin that she is content for contact to take place three times a year.
I understand that [K] met with the prospective adopters on 2nd July. She told Ms Pickin that she liked them very much and felt happier about [L's] future. [L's] carers have, of course, been specifically selected because of their willingness for [L's] contact with [K] to continue."
The letter went on to reject the proposition that K should remain in the same home.
"In the first year of placement, [L] has not settled as easily as had initially been anticipated. It is the professional opinion of the experienced workers involved in this matter that the difficulties in the adoptive placement are due to [L's] insecurity as a result of her history and as a result she has not settled easily. [L] needs to be secure in her placement especially in the early stages when she is forging attachments to her new carers. Whilst it is accepted that following contact with birth family members, some degree of emotional/behavioural problems would be expected, there have been significant concerns in this case. The workers are of the view the contact has shifted the foundations of the stability of the placement. The concern is that if the contact is at too high a level then there would not be enough time for [L] to 'bed' into her placement. Whilst [L] does exhibit difficult behaviour following contact, she will then settle down and there will be a short period of stability, but with contact presently happening on three occasions each year that progress and stability is again lost following a further contact. Contact may provoke dormant feelings. The Local Authority and the adopters need to consider how [L] is helped to express and make sense of emotions resulting from contact. The timing and degree of contact needs to take account of the child's need to attach to new family and the adopters needs to claim the child. The better the child's adjustment to the adoptive situation then the more likely the child is to have the psychological resources to cope with and make positive use of contact. Whilst [L's] needs are paramount, contact needs to be comfortable and useful for all involved.
The prospective adopters do also have some concerns regarding the confidentiality of the placement. At the time that the contact proposals were originally made, [LR] was away from the Cambridge area. More recently, she has returned to Cambridge and is having contact with [K]. [K] has some information with regards to [L's] geographical placement. The adopters do have a fear that the confidentiality of the placement may potentially be breached in the light of this. There has to be retained an appropriate degree of confidentiality of the placement. The risk of links between those having contact who retain contact with the wider family needs to be considered."
"The Children's Guardian does not oppose [K's] application for leave to apply for an order. This does not mean that he would necessarily support an order being made in her favour. His overriding concern must be the stability of [L's] placement. The Local Authority's care plan for [L] was for there to be twice yearly direct contact between [L] and [K]. The Local Authority has also at one point supported direct contact three times per year. The prospective adopters indicated in their statement of facts that they were opposed to any direct contact. Their position now (and that of the Local Authority) is that there should be annual indirect contact on four occasions per year, but with no orders in place. Given the current apparent changes in position and the close and significant relationship between the children, the court may take the view that there are real issues that [K] can reasonably ask the court to try. The guardian's anticipates that comment will be made as to the timing of [K's] application; he does not know why there was such delay before the application being made."
The guardian also took the view that the matter was complex and should be transferred to the High Court.
"6. It is against this background that [K] makes her application for leave to apply for a contact order. She wishes to hold the Local Authority at the very least to the original proposal of three times a year. She was supported by the Guardian, who considered the matter should be investigated without any promises being made to [K] as to outcome, and her leave application was opposed by those representing the Local Authority and [the prospective adopters]."
"8. I was referred to the case of Re C (A Minor) (Adoption Order: Conditions) (HL)  2 FLR 159. In the passage from the judgement of Lord Ackner at 167E it is said 'No doubt the Court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree.' Clearly [K] has been a significant person in [L's] life. However, [L] is now to be adopted into another family. That family have indicated that while they are willing to encourage [L's] contact with [K] at the present time she has been confused or destabilised by too frequent contact and they have determined once a year direct contact is in her interests and they will promote that and some indirect contact and are willing to reconsider the level of contact from time to time.
9. In my judgement that view must be listened to. The intention for [L] is that she moves to a new family. It is of the utmost importance that she has a happy and secure future in that family and if that family do not agree for good reason to more frequent contact in accordance with Re C (supra) such contact should not be ordered."
"I do not feel able to raise [K's] hopes or allow the costs of a substantial investigation in all the circumstances and against this background."
"I regret that over this issue they are not compatible. It may be over time as [L] becomes more settled the prospective adopters will be able to keep the level of [K's] contact under review but in the meantime I hope she will be able to accept the importance of the adoptive placement being stable for [L]."
"(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; and
(d) where the child is being looked after by a local authority--
(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents."
"Held - allowing the appeal -
(1) When considering a grandparent's application for leave to make an application for a residence order, the statutory checklist needed to be given its proper recognition and weight. Whilst the decision in Re M (Care: Contact: Grandmother's Application for Leave) had served a valuable purpose in its day and in relation to s. 34(3) applications, it was not appropriate to substitute the test 'has the applicant satisfied the court that he or she has a good arguable case' for the test that Parliament set out in s. 10(9) of the Children Act 1989 ..."
" The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects."
" I would observe that all that is said directly in relation to the discharge of the judicial task under s. 34(3) and not directly in relation to the discharge of the judicial task under s. 10(9). In my experience, trial judges have interpreted the decision in Re M (Care: Contact: Grandmother's Application for Leave) as requiring them, in the determination of applications under s. 10(9) to apply the three-fold test formulated by Ward LJ which has the laudable purpose of excluding from the litigation exercise applications which are plainly hopeless.
 I am particularly anxious at the development of a practice that seems to substitute the test, 'has the applicant satisfied the court that he or she has a good arguable case' for the test that Parliament applied in s. 10(9). That anxiety is heightened in modern times where applicants under s. 10(9) manifestly enjoy Art 6 rights to a fair trial and, in the nature of things, are also likely to enjoy Art 8 rights."
"15. The whole purpose of the decision in Re J was to draw the attention of trial judges to the need to adopt a careful review of the section 10(9) criteria and not to replace those tests simply with a broad evaluation of the applicant's future prospects of success."
As I said a moment ago, that case was also a grandmother's application for permission.
"I am not saying that it should never be open to adopters to change their minds and resile from an informal agreement made at the time of the adoption. But if they do so they should, as Butler-Sloss LJ said in In re T (A Minor) (Contact After Adoption)  2 FCR 537, 543 give their reasons clearly so that the other party to the arrangement, and if necessary the court, may have the opportunity to consider the adequacy of those reasons. Nor need adopters fear that their reasons, when given, will be subjected to critical legal analysis. The judges who hear family cases are well aware of the stresses and strains to which adopters in the position of Mr and Mrs H are subject and a simple explanation of their reasons in non-legal terms would usually be all that is necessary. In my judgment where adopters in the position of Mr and Mrs H simply refuse to provide an explanation for their change of heart, particularly where, as here, the contact envisaged - the provision of a report - is of a nature which is most unlikely to be disruptive of the children's lives, it is not appropriate for the court to accept that position without more."
The court allowed the appeal and gave permission for the application to proceed.
ORDER: Appeal dismissed; detailed assessment of the parties' Community Legal Services Funding certificates.