Reasons must be given for denial of contact

LAW REPORT 23 August 1995
Re T (minors: contact after adoption); Court of Appeal (Lord Justice Balcombe, Lord Justice Peter Gibson and Lord Justice Hutchison) 28 July 1995

Where adoptive parents wished to resile from an informal arrangement allowing contact to another party, they should give clear reasons for doing so. The bald assertion that it was not in the adopted child's best interests was insufficient.

The Court of Appeal allowed an appeal by the applicant, Miss T, against the refusal of Judge Fisher, sitting in Nottingham County Court on 10 May 1995, to grant her leave to commence contact proceedings in respect of her two half-brothers and one half-sister. The applicant, now aged 20, had lived with her half- siblings, aged 15, 12 and 10, until 1986 when they were taken into care following allegations of sexual abuse within the family, and had had no further contact with them since 1990, when they were adopted.

Both Nottingham County Council, the adoption agency, and the half-siblings' guardian ad litem had then resisted her application for contact with the other children on the ground that it was not in their best interests. But there was an informal agreement that the adoptive parents, Mr and Mrs H, would provide annual progress reports on the children. However, when the first such report was due, none was forthcoming. The council told the applicant without further explanation that this was because it was not considered in the children's best interests. The applicant then began the present proceedings for leave to make an application for a contact order.

Mark Rogers (Truman Close Kendall & Appleby, Nottingham) for the applicant; Ian Karsten QC (C.P. McKay, West Bridgford) for Nottingham County Council.

Lord Justice Balcombe said the judge, in refusing leave to make the application, made two errors. First, the failure of Mr and Mrs H to provide a progress report was clearly a change of circumstances such as to justify reopening the question of contact. Secondly, there was no evidence before the judge that the proposed application might disrupt the children's lives to such an extent that they might be harmed by it, nor was there any material entitling the judge to infer such a risk.

While it was important for adopters to have an unfettered right to bring up their adopted children without constraints (other than those imposed equally on natural parents) and that the adoptive family be shielded from risks to its security and stability, it was also of the highest importance that adoption proceedings be conducted in a spirit of co- operation between the adopters and the natural family whenever possible, and that adopters should not resile from informal agreements without giving reasons and without the court being in a position to inquire into the matter.

If adopters did not feel able to cope even with indirect contact, they should say so at the time. If they later wished to change their mind, they should give clear reasons. Both parties had invited the court to give guidance on the appropriate procedures for applications for leave to apply for direct or indirect contact after adoption.

His Lordship referred to Re C (adopted child: contact) [1993] Fam 210 and Re T (contact after adoption) [1995] 2 FCR 537. In his Lordship's judgment, the procedure should be designed to ensure that adoptive parents were not unnecessarily disturbed by such applications, and that the judge hearing the application had as much relevant information as possible.

It would normally be appropriate for the court to direct that the adoption agency be given notice of the application for leave, but not for them to be a party to the application, with the same right of appeal as the applicant.

The object of such applications was to ensure that adopters were not unnecessarily worried but that at the same time the court had before it such information as it needed. In some cases it might be necessary to transfer the application to the High Court and bring in the Official Solicitor but there was no reason for that to be the general rule. In the present case, the appeal should be allowed and the judge's order discharged. Mr and Mrs H should have an opportunity to reconsider their refusal to give reasons for failing to provide the promised report. If within a reasonable time they gave such reasons, Miss T's application should be reconsidered in the light of those reasons. If not, the application should be granted.

Lord Justice Peter Gibson and Lord Justice Hutchison concurred.

Paul Magrath, Barrister