ADOPTION/CONTACT: Re R (Adoption: Contact) [2005] EWCA Civ 1128

18 AUG 2005

(Court of Appeal; Wall LJ, Lloyd LJ; 18 August 2005) [2006] 1 FLR 373

K, a 17 year old girl applied for leave to make an application for contact with L, K's half-sister aged 7, under the Children Act 1989, s 10(9). L was at the time living with prospective adoptive parents. There had been a reduction in the contact proposed between K and L by the local authority from three direct contacts per year to one direct and three indirect contacts yearly. K's application was refused in the Principal Registry and K appealed. The Court of Appeal dismissed the appeal. Although in unusual circumstances it might be appropriate to make a contact order in a case such as this, the court should be reluctant to do so in the face of reasonable opposition by the adopters. Neither s 10(9) nor the cases of Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114 and Re H [2003] EWCA Civ 369 prohibit a broad assessment of the merits of a particular application, but they do prohibit the determination of the application on the no reasonable prospects of success criterion. The position of the prospective adopters in this case, supported as it is, by the guardian and local authority, cannot be said to be unreasonable. Although the judge did not specifically refer to authority or analyse s 10(9)(a) appropriately, if one does apply that section appropriately, it does lead one to the proposition that the nature of the application is unlikely, in the interests of the child, to result in an order, and that an order might well in any event be inappropriate. As to s 10(9)(c) the court should have regard to the disruption posed by the application, not the outcome of the application, when considering whether to grant leave. There is a perceived risk from ongoing litigation and it would be difficult to ignore the extra costs, delay, tension and polarising of attitudes which would be posed by the application. The most critical and most important factor in the case as correctly emphasised by the judge is for L's placement to be as secure, stable and happy as possible and the intervention of the court would not help with this. Per curiam: had the prospective adopters completely resiled from their previous agreement in relation to contact, and had the judge in those circumstances refused permission, the appeal would have been allowed and the application been allowed to proceed.

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