R (A Child), Re

LORD JUSTICE WALL: 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.

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.

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.

When the final care order in the proceedings was made on 25th 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 10th 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.

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 Her Honour Judge Judith Hughes QC, sitting in this building, on 8th June 2005. She refused leave, and gave her reasons in writing for doing so on 16th June. K sought permission to appeal, and on 22nd 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.

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.

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 10th 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.

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.

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 in it inappropriately. Nonetheless, I am satisfied that that is something K undoubtedly feels.

The closeness of the relationship was to a substantial extent encouraged whilst L was in foster care prior to her current placement, that is between June 2002 and August 2003. K saw her sister every week, and from time to time she stayed with the foster parents in their household overnight. They were also, on the papers it appears, able to involve K in their family activities.

Plainly, that level of involvement, whilst L was in foster care, could not continue once the care order had been made and once L had been placed with her current adoptive parents. She has now been with them almost exactly two years, having been placed with them in August of 2003.

The matter emergence of the dispute is best related through the correspondence. On 10th January 2003 solicitors instructed by K wrote to the local authority, pointing out that K was having weekly contact with L and that contact was working well. They wished to make it quite clear that in any adoption K would be concerned to preserve contact, and K asked for an assurance that any adoptive placement that was being sought for L would accommodate ongoing face-to-face contact between the two girls. The letter pointed out that K was grateful to the foster parents, who accommodated contact at the moment and who indeed included K in some of their social activities.and the letter pointed to the close relationship between the two and that it was imperative that the children should grow up knowing their siblings for the benefit of both of them.

We do not have the immediate response to that letter. But on a date which is obscured in the reproduction but was obviously towards the end of April 2003, the local authority wrote to K's solicitors saying this:

On 9th June the local authority wrote to K's solicitors:

In summary, the response from K through her solicitors was a concern that contact was being so restricted. On 13th August 2003 those solicitors pointed out that whilst K had met the prospective adopters and was pleased that L had now been placed, she was extremely distressed to find that she would not be able to communicate with her sister for a further three months. The suggestion was made that K wished to intervene in the adoption proceedings with regard to the issue of contact. The letter made it quite clear that the proposed amount of contact was unacceptable and that she was extremely distressed about the matter, and believed that her sister would be too when she appreciated the lack of contact she would have with K.

The same theme was taken up in a letter written five days later. I quote from part of it:

That proposition was plainly unrealistic. In any event, apart from any other question as to its suitability, the prospective adopters already had older children and it was simply not a practical proposition.

On 3rd October the local authority wrote in these terms, again I quote only from part of the letter:

It is, I interpose, very plain from that letter that K was able to take advice and to recognise that the high level of contact which she had initially thought appropriate was in fact inappropriate, and that three times a year was to be sufficient.

On 24th November 2003 K's solicitors wrote setting out K's acceptance that L was settling down well in the placement, and repeating her absence of any desire to disrupt the placement. But despite what was said in the previous letter, and perhaps despite my interpretation of it, she rejected the level of contact at three times a year and sought telephone contact at least once a week and the opportunity to see her sister, preferably once a month.

On 5th February 2004 the local authority repeated its position that contact three times a year as direct contact was meeting L's wishes and needs as at present, and making the point that L had settled well within her placement and the local authority understood that the carers were now ready to make an application to adopt her. True it is, if one looks at the chronology, that there were indeed three occasions between August 2002 and 2003 when contact took place between K and L. That therefore was the position of the local authority as at 5th February 2004: three times a year face to face, and she is settling or has settled well in her placement.

I move on to what is perhaps the crucial exchange of correspondence, the letter in question being from the local authority dated 1st February 2005. This is a lengthy document which sets out the local authority's position and the change of stance which had taken place. I take the letter up towards the bottom of the first page:

The local authority then go on to set out both the position of the prospective adopters and what they understand K's role to have been and to be in the future. They propose, by way of contact, one direct contact each year on a weekday in early spring, for example, with a minimum duration of 2½ to 3 hours; four indirect contacts per year, this will comprise of two two-way indirect contacts via the post box system, that is letters and photographs, and also K will be able to forward a card and gift for L for her birthday and Christmas. The card will need to go through the post box system, whilst the gift will need to be delivered to Rustat House. On each occasion a thank you card will be sent from L to K. The prospective adoptive carers have asked that K provide the post box coordinator with a telephone number so that the prospective adoptive carers can contact her in the event of a significant event. It would be K's responsibility to keep the post box coordinator updated of any telephone number. Should L at any time wish to draw a picture or send a card to K, then the adoptive carers will facilitate this via the post box system. The local authority believes that these contact arrangements meet L's needs and the purpose of contact in an adoptive placement has to be to maintain links pending stabilising the placement. Stabilising the placement must take priority over contact at this stage. That is not to say that with the passage of time and as people's circumstances change that there will not be any increases in the contact arrangements. Indeed, the adopters' solicitor has confirmed, "it is their view that in time, if all goes well with contact, it may be possible for it to be increased. They are trying to be flexible about the future." However, it is fair to say that it is unlikely there will be any more direct contact in the short to medium term. They ask that K confirm that she is agreeable to those propositions, and seek to discourage K in their final paragraph from instituting proceedings for contact, although they recognise that she has the right to do so.

The response from those instructed by K on 13th May was that she wished to continue the previous arrangements through the County Council at three times a year, and that was the proposal that she put forward. Unfortunately, as those positions remain, as it were, polarised, the result was the application to the court which, after various interlocutory hearings, was heard by Judge Hughes in June 2005.

When the matter came before the judge, each party had very helpfully put forward position statements for the judge to consider. The position statement on behalf of K set out the history, which I have I hope identified, and proceeded to argue in these terms. Section 10(9) of the Children Act 1989 applies. The nature of the proposed application is for contact. They are half siblings with a history of a close relationship. The risk of the disruption is minimal, since K accepts the adoptive placement and all she is seeking to argue for is the right for contact. Historically K's solicitors had asked the local authority to find prospective adopters who were willing to allow contact. The local authority assured K's solicitors that they had done so, and the local authority had confirmed on 5th February in the letter that I have read that contact three times a year was meeting L's needs. The local authority now wish that contact to be drastically reduced. The word "drastic" was justified by reference to the background and to the close relationship between the half siblings. K should, accordingly, be granted permission to apply for a contact order. She had no other means of securing contact. Further investigations needed to be undertaken to ascertain whether such a level of contact would in fact upset L as had been suggested. The guardian should investigate and K should be represented. Without a contact order, there was a concern that her contact would be allowed to wither further, since the proposals had already dropped well below what had been recommended by the adoption panel. K accepted that the court would be reluctant to make a contact order except in unusual circumstances when the prospective adopters did not agree with it, but there were unusual circumstances in the case.

The prospective adopters also helpfully put in a position statement. They invited the judge to deal with the matter summarily, relying on the well-known decision of Re B [1994] 2 FLR 1 in this court. They agreed that section 10(9) of the Children Act was the relevant provision, although it has been pointed out in this court, with some force, that had K made an application for contact to her half-sister whilst L was a child in care and had she obtained such an order, then she would not have needed permission from the court to apply to vary it.

The adopters rely on the well-known decision of the House of Lords in Re C [1988] 2 FLR 159, to which I shall return when considering the submissions in greater detail. They pointed out that they had agreed to facilitate indirect contact and direct contact once a year. Their concerns were as to the confidentiality of the placement being compromised by direct contact by virtue of K's links with her mother, and they had had to balance those concerns against what they recognised was a close bond between L and her sister. They had agreed with the proposals of the local authority after discussing them and would be content for any adoption order to contain a recital setting out those particular proposals. Their case was there was nothing exceptional about the application for a contact order which would fetter the discretion of L's future parents in the manner which Re C had sought to avoid. The continuance of the proceedings was causing anxiety and stress. The application was unlikely to result in the making of a contact order, and it should accordingly be dismissed.

The guardian, likewise, put in a statement in which he said this:

That then was the state of play when the matter came before Her Honour Judge Hughes on 8th June. It is, I think, unfortunate that there had been the changes in position which are described by the guardian and to which I have referred, and that there had been, in particular, the reduction in the contact proposed and the way in which it was handled.

That said, I repeat what I said at the outset of this judgment: that no one in this case has acted in bad faith. But nonetheless, speaking for myself, I have considerably sympathy for K in this situation, who not only throughout has done her absolute best for her half-sister, but who was prepared, as the correspondence shows, although not perhaps with the alacrity I initially indicated, was nonetheless prepared to accept a reduction to three times a year, then to find that she was being faced with once a year. That, I think, for her was the final straw which precipitated the application.

Judge Hughes is of course an extremely experienced family judge, and she did not give her reasons immediately. She decided that she was opposed to the application, and indicated her intention to dismiss it and transfer the matter back to the county court for the adoption proceedings to proceed there. She put her reasons into writing in a short, concise judgment which, as perhaps may be expected from an experienced judge, does not necessary cross every T and dot every I. In paragraph 2 she recognises the protective role which K had played in L's life and the importance of the relationship between the two sisters. She pointed out that the original care proceedings had been brought in the county court and had promoted contact between L and K. She recognised that everyone agreed there should be an adoptive placement. She dealt with the history in so far as the reduction in the volume of contact was concerned, and she then went on:

She then went on to deal with purely practical matters as to timing and to court:

She then made reference to the Schedule 2 report, which she had plainly seen, and ended the paragraph:

In paragraph 10 she refers to the human rights of K and L, and says:

It is plain that in paragraph 9, which I have read, the judge made a slip when she referred to "the intention for [L] is that she moves to a new family." By the time the matter was before the judge, L had been with her prospective adopters for some considerable time. I do not think, however, think for myself that that error vitiates the judge's reasoning if otherwise it can be said to be sound.

Well-structured and well-argued grounds of appeal were put in by Mr Bennett on behalf of K. He complained, firstly, that the judge had failed to pay sufficient attention to the original recommendation of the adoption panel, and that the changes in contact recommended had not been justified. He complained that the judge had failed to explain why the guardian's submission had been rejected, namely that these matters all require investigation and/or explanation, even if an order was not ultimately made. He pointed out the guardian had been particularly concerned about the change in the local authority's stance, and its departure from the recommendations of the adoption panel. He submitted that the judge had failed to place sufficient weight on the existing ties between the two children and the history. In that respect, he bolstered the submission by reference to the judge's slip as to L's placement. He criticised the judge for dealing with the matter summarily and without any evidence being before the court. It was said that L had been distressed consequent upon contact and had not settled, but that was inconsistent with what the local authority had originally written to those instructed by K. He also criticised the reliance upon the apparent prospective breach of confidentiality for placement, that not having been something which had been raised substantially before, and the suggestion that L was unsettled ran wholly contrary to the views expressed in the letter from the local authority which was dated 5th February 2004. Mr Bennett argued that the decision in Re C should only be considered at the end of the process of investigation and at the final hearing, and that was a process which the appellant sought to play a part in. He submitted that this had been a peremptory dismissal of K's application without evidence, investigation or a proper explanation as to why there was a significant change in the local authority's plan.

During the course of oral submissions the argument was substantially refined, particularly in relation to the approach which should properly be taken to applications of this nature. In order to examine that, it is I think necessary to set out the terms of the Children Act as they apply to this particular case. We are concerned with section 10(9), section 10 dealing with court's power to make section 8 orders. Section 10(9) reads, where material, as follows:

In this context Mr Bennett referred us to two decisions of this court, namely Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114 and Re H [2003] EWCA Civ 369, but which is not otherwise reported. Both were grandparents' applications. In the first the maternal grandmother sought permission to intervene in care proceedings to put herself forward as the carer of her young grandchild. The local authority objected to the intervention, as I think did the guardian, and the judge refused it. The grandmother appealed and I read from the headnote:

Having set out the terms of the section, Thorpe LJ (who gave the leading judgment with which Ferris J agreed) said:

Having then examined the decision of this court and in particular the judgment of Ward LJ in Re M, he concludes with these terms:

In essence therefore, Thorpe LJ, as I understand it, was disapproving the approach of this court in Re M relating to applications for permission to apply for contact to children in care, where Ward LJ had devised a test that the case would not be allowed to proceed if it was frivolous or vexatious or otherwise an abuse of the process or bound to fail, and would not be allowed to proceed if it failed to disclose that there was any eventual real prospect of success.

The applicant on that basis, applying that test, had to satisfy the court that there was a serious issue to try and must present a good arguable case. By analogy, therefore, Mr Bennett argues that what the court has done in this case is to look at the likely outcome of any prospective application for contact within the adoption proceedings, decide, applying Re C, that it is unlikely to succeed, and has used that reasoning process to refuse the application for permission.

Mr Bennett bolstered that argument by reference to the second case, Re H, which again was a case by a grandmother seeking permission to make an application. During the course of his judgment in that case, Thorpe LJ commented:

Accordingly, Mr Bennett argued, that when Judge Hughes applied Lord Ackner's dictum in Re C she was misdirecting herself and applying the wrong test. She was in effect, as I indicated a moment ago, saying that the court would be most unlikely to make a contact order contrary to the wishes of the prospective adopters, therefore the application should not proceed. That, Mr Bennett submitted, was plainly inconsistent with both Re J and Re H and was sufficient to vitiate the judge's discretion.

That is, I think, a powerful submission, but in my judgment there are two answers to it. The first lies in the language of section 10(9)(a) itself "the nature of the proposed application for the section 8 order". The statute of course applies to every type of section 8 orders, of which there are four. It applies to every applicant, of whom there can be an almost infinite variety. In the instant case, the application is for a contact order within adoption proceedings; and an order, moreover, designed to continue in being after the adoption order itself has been made. In these circumstances, it seems to me that the court simply cannot shut its mind to the fact that this is such an application and is, moreover, bound to have regard to the fact that, under the jurisprudence which has developed, contact orders in adoption proceedings are of themselves unusual, and that both the practice of the court and the courts in approaching them have regarded such orders as unusual.

Secondly, it does not seem to me that either section 10(9) or the two cases in this court on which Mr Bennett relies prohibit a broad assessment of the merits of a particular application. What they prohibit is the determination of the application on the "no reasonable prospects of success" criterion.

It is, of course, the case that matters have moved on very substantially since Re C. When Re C was decided, the Children Act was not in force and adoption proceedings were not designated as family proceedings. Accordingly, if there was to be post-adoption contact between siblings or other members of the adopted child's family, the only way that could be enforced was by conditions being written into the adoption order under section 8 of the Act. Equally, back in those days it was much more common, as Lord Ackner himself points out, for there to be no contact between family members and the adopted child after an adoption order had been made; although, of course, he recognises that there were exceptions to that rule.

We were shown section 1 of the new Act, which is due in force later this year, which demonstrates the clear change of thinking there has been since 1976, when the Act was initially enacted, and which demonstrates that the court now will need to take into account and consider the relationship the child had with members of the natural family, and the likelihood of that relationship continuing and the value of the relationship to the child.

So contact is more common, but nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.

So having regard to the nature of the proposed application in section 10(9)(a) in this case inevitably involves, in my view, a consideration of the jurisprudence surrounding the circumstances in which such orders may or may not be made. In my view, the judge was plainly entitled in those circumstances to take into account that the court would be reluctant to make an order in the face of reasonable opposition from the prospective adopters. I use the phrase "reasonable opposition", because it seems to me that one of the ways in which the law has shifted is demonstrated by the decision of this court in the case of in Re T (Minors) (Adopted Children: Contact) [1996] Fam 34. In that case, a half-sister had been assured that when her half-sister was adopted she would be given annual reports as to her progress. No report was provided. When she enquired and complained, she was told that the adopters had changed their minds and that it was not in the children's interests for the report to be provided. Furthermore, confidentiality precluded any explanation of the reasons for that refusal. She applied to the court for leave to make an application for contact. The judge refused it. She appealed to this court, and this court allowed her appeal. This court balanced carefully on the one hand the right of an adoptive family to protection of confidentiality and their right to bring up the adopted child in the way that they thought appropriate, and the inappropriateness of enforcing informal arrangements which might no longer be appropriate and which therefore fell to the prospective adopters to terminate. On the other hand, for the applicant it was argued that if this decision was allowed to stand it meant that adoptive parents could effectively ignore any agreement entered into in the best interests of the child in question, and that that would in fact result in more contests and more difficulties in prospective applications. The court came down firmly in favour of the latter proposition.

Balcombe LJ (giving the leading judgment) said, at page 41E:

Thus, in the instant case, had the prospective adopters resiled completely from their previous agreement in relation to contact, and had the judge in those circumstances refused permission, I think I would, speaking for myself, have allowed this appeal and allowed K's application to proceed.

However, that is not the adopters' position. The principle of contact is not in dispute. Face-to-face contact indeed is offered, albeit once a year, but with the prospect of more frequent contact if the placement is secure and L is settled within it. More frequent indirect contact is also offered. It seems to me that the position of the prospective adopters, supported, as it is, by the guardian and the local authority, cannot in these circumstances be said to be unreasonable.

Therefore, although the judge did not specifically refer to authority or analyse section 10(9)(a) in the way that might have been preferable, I am nonetheless quite satisfied that, speaking for myself, if one does apply section 10(9)(a) appropriately, it leads one to the proposition that the nature of this application is unlikely in the interests of the child to result in an order, and that an order might well be in any event inappropriate.

Section 10(9)(b) was of course in the judge's mind. As to section 10(9)(c), this of course refers to the risk of disruption posed by the application, not by the outcome of the application. I do not think one has to be particularly far-sighted to perceive a genuine risk to L from ongoing litigation. Proceedings, unfortunately, have the effect of polarising attitudes. There would be delay. There would undoubtedly be tension on the part of the prospective adopters. There would be, as the judge pointed out, additional costs, none of which is in the interests of L and none of which, it seems to me, can be ignored when it comes to the question of the risk of disruption to L posed by the application.

That it seems to me is the heart of the appeal. It is certainly the major point of law in the appeal, in what is otherwise essentially a discretionary exercise. I quite understand K's concern that there has been no evidence as to L's upset or inability to settle. Indeed, indications which have emerged have been somewhat contradictory. Equally, I understand that we do not have statements from the prospective adopters on oath explaining why it is they are anxious about the prospects of breach of confidentiality and so on.

But, speaking for myself, I do not think that formalisation of the issues in this way would advance the matter very much. I would not dream for one moment to try and go behind the obviously detailed careful negotiations there have been. But I am reasonably confident that in this particular case both sides understand the other's position. When one comes to analyse it helpfully with the latest report of the guardian, whose mind itself has swayed both ways on this issue, I am prepared to accept, from what the guardian tells me, that the prospective adopters are genuinely anxious, not only about the outcome of the proceedings but about the issues that they raise, that their attitude to contact is a perfectly reasonable one, and that this is now a case which has to be dealt with by the human beings on the ground and is not one dealt with by legal proceedings. All that, in my judgment, comes within section 10(9)(a).

Therefore, having looked at the matter I hope carefully and I hope as I said at the outset of this judgment with particular sympathy for K, her half-sister and indeed the prospective adopters, I have come to the conclusion that the judge, albeit in a somewhat terse way and without perhaps ticking the boxes and going through the hoops or jumping the hurdles one would have wished her to have done, nonetheless has reached the right conclusion.

In those circumstances, I see no alternative but to the dismissal of the appeal.

May I just conclude by saying this. I appreciate that K is not here, nor are the prospective adopters. Neither needed to be here. All three are deeply wedded to L's welfare. I hope very much that K will be able to appreciate, as I think she does, that L's primary need, as the judge said, is to bed herself down in the household of the prospective adopters. If she is able to do that, I am reasonably confident that she will also be able to maintain her relationship with her half-sister. Although I have no doubt that at K's age time seems to go very slowly, in fact it will not be very long before L is of age and the two of them have a lifetime to maintain their relationship once L is herself of age. But having said that, the critical and most important factor in the case, emphasised by the judge and correctly emphasised by the judge, is that L's placement should be as secure, stable and as happy as possible. That depends principally on the prospective adopters. In those circumstances, I do not myself feel that the intervention of the court will assist that process.

Therefore, for all those reasons, no doubt expressed at some excessive length, I would dismiss this appeal.

LORD JUSTICE LLOYD: I agree.