T (A Child) (Adoption Hearing: Involvement of Applicants), Re

The degree to which applicants for an adoption order should be involved in court hearings to determine whether or not their application should be granted is complicated by the need for the subject child’s birth parents to be engaged in the court process, whilst, at the same time, maintaining strict confidentiality around the identity of the prospective adopters. Down the years, guidance from the President of the Family Division has been given on the topic, the most recent being issued on 10 April 2018 [‘the President’s Guidance’]. It is understood that adopters are normally advised that they do not need to attend court hearings, and that, when so advised, they do not seek to do so. The present appeal has arisen because an adoption applicant did want to attend the hearing of his application, or at least be given a detailed account of what had taken place during it. In the event, the court failed to give him notice of the court hearing, refused his request to be able to attend, either in person or over a remote and anonymous link, and then refused his application for a transcript of the hearing.

In early 2023, a child then aged 7 years, was placed with prospective adopters [‘the As’] by Cornwall Council [‘the local authority’] under a placement for adoption order [Adoption and Children Act 2002, s 22] made the previous year. In June 2023 the adopters issued an application under ACA 2002, s 49 to adopt the child.

On 26 June 2023, the Family Court in Truro [‘the court’] issued an order setting the application down for a hearing on 31 August, which, it was indicated, might be the final hearing. That order giving notice of the hearing was not sent to the As, who were told of the date by their social worker in an email on 26 July.

On behalf of both applicants, on 7 August, Mr A first telephoned the court saying that he had not received a copy of the order. Mr A says that the court staff told him that that was correct because ‘we never serve adoption applicants.’ He then asked if he could attend the hearing and was told that that was a matter for the judge. Mr A, therefore, then sent an email to the court stating that he understood that the rules permitted him to attend should he choose to do so, but asking for confirmation that he would be permitted to attend the hearing on 31 August.

On 8 August, in an email the court office recorded that the matter had been referred to the Designated Family Judge, HHJ Richards, who had replied:

On 17 August, solicitors instructed by the applicants wrote to the court repeating Mr As request to attend the hearing and explaining that Mr A felt an obligation to attend so that in time to come he may tell the child that he had done so in the event that an adoption order were made. It was made plain that, if required, Mr A could attend remotely so as to maintain anonymity.

On 24 August the court office replied to Mr A direct by email setting out the judge’s response:

On 31 August, at a hearing before HHJ Richards, the As adoption application was adjourned. The court order issued with respect to that hearing states:

The order does not record the attendance of any party or legal representative, but its terms suggest that both parents attended the hearing and that the court had been told that they were applying for permission to oppose the adoption on the basis that there had been a ‘change of circumstances’ within the terms of ACA 2002, s 47. In the event, Mr and Mrs A, who did not see the order of 31 August until January 2024, were unaware of its terms. They received no communication from the court following the 31 August hearing of their application and were told nothing of what had taken place until, on 6 September, an email from the social worker reported that the adoption order had not been granted because the judge had not been satisfied that the parents had been served with the court papers and been given opportunity to oppose. They were told that the next hearing date was 29 September.

Pausing there, this court was told by Ms Daulton, on behalf of the local authority, that, on 31 August, the local authority had been represented by a solicitor, who was not a member of the authority’s legal department, and who had made no note of the hearing. It is not therefore clear what source of information the social worker had for her account of what had taken place on 31 August as she had been away on annual leave on that date. Be that as it may, for the solicitor not to prepare a note or memorandum of the hearing was a serious failure. In Hertsmere Borough Council v Harty [2001] EWCA Civ 1238, Sedley LJ set out the position in clear terms:

On 6 September, Mr A filed a formal request on Form EX107 seeking a transcript of the 31 August hearing. In the box setting out the reason for requesting a transcript, Mr A said: ‘To understand what happened at the hearing of a case to which I am a party.’ On the 14 September, the court office responded to the transcript request as follows:

Mr A did not renew his application to attend court hearings and a final adoption order was made on 29 September 2023 in favour of Mr and Mrs A. They were told of the outcome on 6 October by the social worker.

Notice of appeal against the refusal to permit a transcript was filed on 13 October 2023 and permission to appeal was granted by King LJ on 20 December. King LJ’s order recorded that the judge’s refusal to permit Mr A to attend the hearing of his application, either in person or remotely, would also found a proper ground of appeal and the appellants were invited to amend their grounds of appeal to that effect.

The procedural rules providing for adoption proceedings are contained in Family Procedure Rules 2010, Part 14 [‘FPR 2010’]. In particular, r 14.3 provides that ‘the prospective adopters’ are to be the applicants in proceedings for an adoption order and that they are parties to the proceedings.

By r 14.15 the court is required to give notice of any hearing of the adoption application to ‘the parties’, and therefore to the adoption applicants:

Attendance at the final hearing of an adoption application is provided for by r 14.16:

The current guidance, ‘President’s Guidance: Listing Final Hearings in Adoption Cases’ [‘PG’], was issued by Sir James Munby on 10 April 2018. It makes extensive provision for the conduct of final adoption hearings. In the context of the present appeal, the following passages are of particular note (with my emphasis):

Separate provision is made in the Presidents Guidance in paragraphs 25 to 29 for an ‘adoption visit’ to take place following the making of a final adoption order at which the applicants and child may attend court for a ‘celebratory occasion’.

FPR 2010, r 27.9 makes provision for the recording and transcription of proceedings. By r 27.9(1) any hearing in family proceedings will be tape or digitally recorded unless the court directs otherwise. So far as transcripts are concerned r 27.9(3) provides that:

In passing, and in contrast to the position under the FPR, it is of note that the companion provision in the Civil Procedure Rules 1998, r 39.9(3), does not provide for the court to ‘direct otherwise’ in the case of a request by a party for a transcript:

The standard procedure, which was followed by the applicant in the present case, is for the application for a transcript to be made using Form EX107.

The grounds of appeal, including ground 3 for which we granted an extension of time and permission at the start of the hearing, are:

Mr A, who has acted in person throughout, plainly has a sound grasp of procedural matters. He prepared a very clear and succinct skeleton argument and assisted the court with similarly well-constructed oral submissions at the hearing. The local authority, which appeared on appeal through counsel, Ms Daulton, supported Mr As submissions in full and assisted the court with an account of the normal process applied in adoption cases at the Family Court in Truro.

As the court is essentially in agreement with the submissions made by both parties, I will move directly to an analysis of the issues and my conclusions.

Chronologically, it is sensible to take ground 3, dealing with attendance at the hearing, first before dealing with issues relating to the transcript. The right of an individual who has made an application to a court to a fair trial must, self-evidently, include the right to attend any court hearing held in the court proceedings. Whilst a court will retain a degree of discretion and control over its own processes, for the court to prohibit an applicant from attending, or otherwise observing or engaging in, a hearing of his own application must be an exceptional course. Even where the safety of the other parties, court staff or the judge may be at risk, and the court may prohibit an applicant from physical attendance at a hearing, arrangements will normally be made for attendance over a video-link or other remote connection. It is, therefore, no surprise that the statute and the court rules do not afford any power to the court to prohibit the applicant in adoption proceedings from attending a hearing of their adoption application.

Where an adoption application has been issued, the applicants will be parties [FPR 2010, r 14.3] and the court must give them notice of any hearing, although the default position is that they are not required to attend unless the court otherwise directs [r 14.15]. The applicants may attend the final hearing and be heard on the question of whether an order should be made [r 14.16(1)]. Further, the court cannot make an adoption order unless the applicant(s) and the child personally attend the final hearing, unless the court has directed that they ‘need not’ do so [r 14.16(6)+(7)]. The careful wording of r 14.16(7) gives permission to the applicants and child not to attend, but does not afford jurisdiction to the court to prohibit them from doing so; the choice is left up to the applicants. The statement made in the President’s Guidance at paragraph 19, that when a ‘need not attend’ direction is made under r 14.16(7) ‘any notice of hearing issued by the court must state clearly that the applicant or the child, as the case may be, should not attend’, is not supported by any statutory provision. Insofar as the guidance suggests that the court has a general power to prohibit an adoption applicant from attending the hearing of their adoption application, it is in error and made without authority.

Where an applicant wishes to attend the hearing of their adoption application, the court must make appropriate arrangements for them to do so. A difficulty, of course, arises in a serial number case, where there is a requirement for the court to maintain confidentiality around the identity of the applicant, and where a parent or another member of the child’s birth family are also due to attend the court hearing. In such cases practical arrangements should be made to allow the applicant to engage in the court process anonymously. In years gone by, in London, the applicants would normally simply listen to the proceedings over the court recording equipment by sitting in the ‘mechanical recording room’. In modern times, where courts have access to an online system, it will normally be possible for applicants to observe a hearing remotely over a video-link with their microphone and camera switched off.

Turning to grounds 1 and 2 with respect to the provision of a transcript of a hearing, r 27.9(3)+(4) establishes that a party to the proceedings may ‘require’ a transcript to be supplied to them ‘unless the court otherwise directs’, subject to payment of any charges. Whilst the court has a discretion to direct otherwise, that discretion should be exercised judicially and on reasonable grounds.

The court’s response to the applicant’s application for a transcript of the hearing of 31 August was in error in three respects. Firstly, whilst it is correct that the hearing, like the vast majority of family proceedings, was heard in private, that did not reverse the position established under the rules so as to require the applicant to obtain judicial permission for provision of a transcript. Secondly, no reason is recorded for the judicial decision to direct that there should be no transcript. Thirdly, the statement that the court order would provide all the information needed was in error in that the order did not record who had attended the hearing or why the application had been adjourned. Matters were compounded in that the court did not apparently send a copy of the order to the applicants, who did not see a copy of it until January 2024.

Further, it must a fortiori be the case that, where the court has prevented a party from attending a hearing and that party requests a transcript of the hearing, the request should be granted unless there are clear and specific reasons for refusal.

Drawing matters together, in the present case the court in Truro acted in error by:

The applicant’s appeal therefore succeeds on all three grounds and must be allowed. As the final adoption order has been made, and the focus of the appeal has been upon preliminary process and case management, no further orders, save for that allowing the appeal, are required.

Before leaving this case, however, I will set out the steps that should have been followed in the present case to avoid the errors that occurred. In doing so, I am conscious that, whilst the court in Truro has been in focus in this particular case, the culture and practice demonstrated in that court’s approach to adoption applicants is likely to be replicated, in one form or another, in many other courts in England and Wales. We were told that, to the recollection of the long-experienced adoption team in Cornwall, this is the first occasion that an applicant has asked to attend court hearings. It was conceded that this may, in part, be due to the advice that is regularly given by social workers to the effect that it is not necessary for adopters to attend. Ms Daulton told the court that, on reflection, the local authority acknowledged that this advice could be perceived by adopters as an indication that they should not attend. The local authority is to review its future practice in this respect.

Over many years, a laudable practice has developed of offering adopters and children an occasion on which they may attend court for what has become known as a ‘celebratory visit’. Such a visit is fixed for a time after the adoption order has been made, and after the time for any potential appeal against the final order has passed. In the light of this practice, in most cases there will be no need for prospective adopters to attend the formal hearings in their application, and any possible risk of encountering the birth family at a court hearing is thereby avoided. In part, the 2018 President’s Guidance, and its predecessors, was intended to describe the approach to be taken to underpin this practice. Nothing in this judgment is intended to change arrangements for celebratory visits, but the welcome development of this sensible practice cannot be at the expense of adherence to proper process within the adoption application itself.

If the professional approach, by local authorities, the judiciary and court staff, has developed to the point where prospective adopters are being actively discouraged from attending hearings in their own adoption application, that is a matter of concern. It is also concerning that, as we were told, some courts, as in this case, treat the local authority as the de facto applicant, with the result that, as this appellant experienced, the court does not seek to engage with the applicant by giving notice of hearings or serving copies of orders. Rare though it may currently be, to my mind, this appellant’s wish to be present (physically or remotely) during the hearings is an entirely understandable one. In terms of ‘life-story’ information, attendance at these court hearings may be the only first-hand experience an adopter will have of the birth parents. Also, the importance that this applicant attached to being able to say to his child in years to come that he had been to the court hearings is easy to understand. Given the life-changing nature of the proceedings for all involved, one might ask, rhetorically, why any adopter would not want to attend the hearings of their own application, provided suitable and safe arrangements are made to protect anonymity. I would urge each local adoption centre to review its current practice. In addition, I intend to invite Mrs Justice Judd, as chair of the President’s Public Law Working Group, to conduct a review of the 2018 President’s Guidance.

Turning then to the specific steps that should have been taken in this case, on receipt of a serial number adoption application that court should, in addition to such other steps which are not relevant to the substance of this appeal:

I agree.

I also agree.