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R (A Child) [2005] EWCA Civ 1128

Leave to apply for post-adoption contact order by half-sibling refused.

R (A Child) [2005] EWCA Civ 1128

Court of Appeal: Wall LJ, Lloyd LJ (18 August 2005)

Leave to apply for post-adoption contact order by half-sibling refused.

This case concerned two half-sisters, K aged 17 and L aged seven. Their mother had failed to care for L with the result that, by the age of four, she was in foster care and, shortly afterwards, she was the subject of an interim care order in favour of the local authority.

While L had been in foster care prior to her current placement, the closeness of her relationship with K had been encouraged, with direct contact every week, and K occasionally stayed overnight and was included in the family's activities. When the final care order in the proceedings was made, the local authority's care plan for L was for permanent placement outside the natural family in adoption, and nobody disagreed with the proposition that L should be adopted by her current prospective adoptive parents, with whom she had been for two years at the time of this latest hearing.

Whilst there was no suggestion that the half-sisters should not remain in contact, what was in issue was the amount and the nature of that contact. In early 2005, the prospective adopters stated that they wished the level of direct contact to be reduced because (1) L did not appear to be settling into her placement, possibly caused by dormant feelings being provoked by contact, and (2) they were concerned that the confidentiality of the placement might be breached by the fact that K appeared to be in contact with her mother.

Accordingly, K applied in June 2005 for leave to make an application for contact with L, but leave was refused by the judge. On appeal, the application for leave was granted, on the basis that K should have the opportunity for her application to be ventilated before a full court, even though it might well be shown that the judge had been right to refuse leave.

The court considered closely the judge's analysis of the wording of section 10(9) of the Children Act 1989, and the case-law applicable to such an application for contact.

Held, dismissing the appeal, that the judge had been entitled to take into account the reluctance of the court to make such an order in the face of 'reasonable opposition' from the prospective adopters, an approach supported by the case of Re T (Minors) (Adopted Children: Contact) [1996] Fam 34. In this case, the principle of contact had not been in dispute: direct contact, albeit infrequent, had been offered, with the prospect of more frequent contact if the placement were secure and L were settled within it; and more frequent indirect contact was also offered. In those circumstances, the position of the prospective adopters, supported by the guardian and the local authority, could not be said to be unreasonable.

The court also emphasised that, although the relationship between the half-sisters was important, the critical and most significant factor in the case was that L's placement should be as secure, stable and happy as possible. That depended principally on the prospective adopters, and the intervention of the court would not assist that process.

Read the full text of the judgment here