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

Start your day with The Independent, sign up for daily news emails
Life and Style
A monstrous idea? Body transplants might no longer be science fiction
Science An Italian neurosurgeon believes so - and it's not quite as implausible as it sounds, says Steve Connor
Sport
Demba Ba (right) celebrates after Besiktas win on penalties
footballThere was no happy return to the Ataturk Stadium, where the Reds famously won Champions League
Arts and Entertainment
Natural beauty: Aidan Turner stars in the new series of Poldark
arts + ents
News
Mia Freedman, editorial director of the Mamamia website, reads out a tweet she was sent.
arts + ents
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
News
people
Arts and Entertainment
The write stuff: masters of story-telling James Joyce, left, and Thomas Hardy
arts + ents...begging to differ, John Walsh can't even begin to number the ways
News
Image from a flyer at the CPAC event where Nigel Farage will be speaking
news
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Bookkeeper

£23000 - £26000 per annum: Recruitment Genius: This small, friendly, proactive...

Recruitment Genius: Photographic Event Crew

£14500 - £22800 per annum: Recruitment Genius: This is a fantastic opportunity...

Recruitment Genius: Software Developers - .NET / ASP.NET / WebAPI / JavaScript

Negotiable: Recruitment Genius: A Software Developer is required to join a lea...

Austen Lloyd: Corporate Tax Solicitor - City

Excellent Salary: Austen Lloyd: A first rate opportunity to join a top ranking...

Day In a Page

HIV pill: Scientists hail discovery of 'game-changer' that cuts the risk of infection among gay men by 86%

Scientists hail daily pill that protects against HIV infection

Breakthrough in battle against global scourge – but will the NHS pay for it?
How we must adjust our lifestyles to nature: Welcome to the 'Anthropocene', the human epoch

Time to play God

Welcome to the 'Anthropocene', the human epoch where we may need to redefine nature itself
MacGyver returns, but with a difference: Handyman hero of classic 1980s TV series to be recast as a woman

MacGyver returns, but with a difference

Handyman hero of classic 1980s TV series to be recast as a woman
Tunnel renaissance: Why cities are hiding roads down in the ground

Tunnel renaissance

Why cities are hiding roads underground
'Backstreet Boys - Show 'Em What You're Made Of': An affectionate look at five middle-aged men

Boys to men

The Backstreet Boys might be middle-aged, married and have dodgy knees, but a heartfelt documentary reveals they’re not going gently into pop’s good night
Crufts 2015: Should foreign dogs be allowed to compete?

Crufts 2015

Should foreign dogs be allowed to compete?
10 best projectors

How to make your home cinema more cinematic: 10 best projectors

Want to recreate the big-screen experience in your sitting room? IndyBest sizes up gadgets to form your film-watching
Manchester City 1 Barcelona 2 player ratings: Luis Suarez? Lionel Messi? Joe Hart? Who was the star man?

Manchester City vs Barcelona player ratings

Luis Suarez? Lionel Messi? Joe Hart? Who was the star man at the Etihad?
Arsenal vs Monaco: Monaco - the making of Gunners' manager Arsene Wenger

Monaco: the making of Wenger

Jack Pitt-Brooke speaks to former players and learns the Frenchman’s man-management has always been one of his best skills
Cricket World Cup 2015: Chris Gayle - the West Indies' enigma lives up to his reputation

Chris Gayle: The West Indies' enigma

Some said the game's eternal rebel was washed up. As ever, he proved he writes the scripts by producing a blistering World Cup innings
In Ukraine a dark world of hybrid warfare and murky loyalties prevails

In Ukraine a dark world of hybrid warfare

This war in the shadows has been going on since the fall of Mr Yanukovych
'Birdman' and 'Bullets Over Broadway': Homage or plagiarism?

Homage or plagiarism?

'Birdman' shares much DNA with Woody Allen's 'Bullets Over Broadway'
Broadchurch ends as damp squib not even David Tennant can revive

A damp squib not even David Tennant can revive

Broadchurch, Series 2 finale, review
A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower: inside the mansion of Germany's 'Bishop of Bling'

Inside the mansion of Germany's 'Bishop of Bling'

A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower