16 JUL 2015
Re S (Adoption and Contact Applications: Representation of the Child)  EWCA Civ 649
(Court of Appeal,Ryder, Macur, Sharp LJJ, 3 July 2015)
[The judicially approved judgment and accompanying headnote has now been published in Family Law Reports  2 FLR 81]
Adoption – Contact
The full judgment is available below
The 8-year-old boy hadlast seen the father in 2008. In that year the mother married the child’sstep-father. In 2010 the father applied for contact but the proceedings weredelayed due to the need to search for the mother’s address and hernon-attendance at hearings. The Cafcass officer recommended indirect contact.
The step-fatherapplied for an adoption order. At a case management hearing the judge foundthat separate representation of the child was not required in respect of thecontact and adoption proceedings but failed to note that under Part 14 of FPR2010 the child was an automatic party to the adoption application. At asubsequent hearing the error was brought to the judge’s attention and heremoved the child as a party to the proceedings.
The father’sapplication for contact was refused and the adoption order was granted. Thefather appealed.
The appeal was allowedand the case was remitted for hearing outside of the relevant family justicearea.
The Court of Appealfound that the removal of the child as a party to the proceedings had beenwrong with the consequence that the protections afforded to the child byautomatically being a party to the proceedings had been removed despite theproceedings involving a proposal for a fundamental change in the child’sstatus.
Prior to the originaldetermination there were extensive negotiations between the parties which led toproposed consent orders being submitted and retracted. At the final hearing theFamily Court Adviser gave only limited evidence recommending indirect contactonly. By agreement the mother and step-father were not cross-examined. Thejudge relied on the assessment of the local authority report in relation to theproposed adoption. The social worker who prepared the report and gave evidencewas a colleague of the mother prior to and during the assessment. Anindependent social worker assessed the step-father but the mother’s colleagueassessed the father raising the issue of bias.
The Court of Appealfound that the social work report omitted the issue of whether and to whatextent the father had been alienated from the child and whether that was causedby the mother. Furthermore the judge had permitted a procedure that was flawedand irregular to the extent that it was unfair.
The court had been misled about the involvement of thechild and his representation in the adoption application and given the gravityof the issues it was inadvisable to discharge the children’s guardian andtherefore to remove the child’s voice from the process. The limitation in oralevidence, although by agreement, was not right and created a procedure in whichthe father’s case was not put in any sufficient way making the process unfair.The local authority social worker did not deal with the history of the mother’sresponsibility for alienation of the father and as she was a colleague of themother’s it gave rise to an unacceptable perception of bias.
Case No: B4/2015/0659
Neutral Citation Number:  EWCA Civ 649
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Family Court sitting at Reading
His Honour Judge Oliver
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE RYDER
LADY JUSTICE MACUR
LADY JUSTICE SHARP
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In the matter of S (A Child)
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Mr Stephen Bartlet-Jones (instructed by Platt Halpern Solicitors) for the Appellant
Mr Paul Murray (instructed by Barrett and Thomson Solicitors) for the Respondent
Hearing date: 15 May 2015
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Lord Justice Ryder:
 On 17 February 2015 His Honour Judge Oliver sitting in the Family Court at Reading handed down a judgment in which he decided two issues on the cross applications of the parties in private law children and adoption proceedings concerning an 8 year old boy, who I shall call S. The parties were S’s father, his mother and his mother’s second husband (who I shall call his step-father). The local authority adoption agency was Slough Borough Council. The hearing had taken place on 9 and 10 December 2014.
 The applications before the court were the father’s application for direct contact with S and the step-father’s application for an adoption order. There was also an issue about the child’s name but that issue was resolved by agreement.
 It is a matter both of concern and significance that the father’s application for direct contact had been issued as long ago as on 12 February 2010. The judge dealt with the question of why there had been such an extraordinary delay. In essence, no fault was attributed to the father. He and his solicitors had pursued the need for a hearing through three different county courts. The search for mother’s correct address appeared to be one issue with the suggestion that at least one court might have acted administratively in error. Another issue was that mother had not attended four listed hearings before those courts. No decision was made about whether that was because she had not in fact received the relevant notices of hearing or because she had chosen not to attend.
 On 5 March 2013 the first effective hearing of father’s contact application took place at the Kingston County Court. A Cafcass report was ordered which ultimately recommended a period of indirect contact which the parties accepted at a hearing on 6 August 2013. The context is important. The father had not seen his son since S was 11 months old, that is in 2008. As the judge records, in 2010 there had been a recommendation for direct contact. Indirect contact by letters and cards did not begin until August 2013.
 The history of the separation of the parents may be relevant to the question of contact but I emphasise that no one has made any findings of fact about it. The mother has certainly alleged that the father has been emotionally, physically and sexually abusive of her and that she left the father in circumstances which required respite during which she made a complaint of abuse to the police which was not pursued by them to a criminal determination. The issues of fact between the parties have not been decided. Likewise, the reason for the cessation of direct contact and the failure to implement the 2010 recommendation about contact or the progress of indirect to direct contact in the intervening years has been commented upon but not decided by the court.
 The mother and the step-father married in April 2008. S has lived with his mother throughout his life and is able to identify his father and his step-father as having different qualities of importance in his life. Over time, as the local authority reporter described, that has developed into the identification of his step-father as his psychological parent and the near exclusion of his birth father as a person of any significance. S has not seen his birth father for so long that he has not and cannot have a memory of him. He has a life story book which this court is told gives his father an appropriate prominence.
 S himself has moved from cooperation with indirect contact to something not far short of antagonism towards the process. He neither wants to receive nor reply to his father’s letters. He has been seen by a Cafcass family court advisor (FCA) and a local authority social worker on more than one occasion.
 There was and remains an important issue in the proceedings about whether S has been alienated from his father by his mother. There are undecided issues about contact, non-engagement with the court by S's mother and, just to take one example of a specific allegation, at some stage during the history, S’s mother unilaterally changed his name. Although she says that was done in the circumstance that she did not know of the father’s whereabouts, no determination has ever been made about that question.
 During case management prior to the final hearing of the cross applications, two important questions were addressed. The first is that the advocates correctly identified that the court would need to resolve issues of fact between the parents relating to some or all of the matters I have set out. This was acknowledged by the judge at a case management hearing on 8 August 2014 when it was identified, rather curiously, as one of the reasons why a children’s guardian was not necessary to represent S. The fact that the parents were going to give evidence about the matters in dispute was apparently a factor in the court’s decision not to permit the representation of S.
 The second question was that of representation itself. The advocates who were before the judge at the case management hearing on 8 August 2014, who are not those instructed before this court today, mistakenly believed that the rules relating to the joinder of the child and that child’s representation by a children’s guardian were the same as respects an application relating to a child arrangements order (or contact) and as respects the free standing adoption application made by the step-father.
 On 8 August 2014, Judge Oliver made a decision not to join S as a party to his father’s contact application. That was a decision to which Part 16 of the Family Procedure Rules 2010 [FPR 2010] applied. There is no appeal against that decision. What was not appreciated at that hearing was the fact that S was an automatic party to the adoption application under Part 14 FPR 2010. The solicitors for the father realising the error that had been made sent an impressively clear and detailed letter to the court and the other parties on 18 August 2014. The letter identified the correct procedural provisions that were engaged and the reasons why a children’s guardian should be appointed for S who was a party to the adoption application.
 On 20 August 2014 Judge Oliver considered that letter and directed that the two applications be listed for a further case management hearing. He omitted to direct that the order notifying the parties of the hearing be served on the child’s representatives or Cafcass with the consequence that an existing party to the adoption application, namely the child, was removed as a party at the subsequent case management hearing on 1 September 2014 without anyone on behalf of the child being able to consider and make representations about whether that was appropriate. That was wrong. It deprived the child of the participation in the proceedings that is provided for in the rules.
 The judge’s reasoning for removing the child as a party to the adoption application elided two separate questions. The first related to the discretionary joinder of the child to his birth father's application which can be summarised as follows: was it in the best interests of S to be joined as a party to the contact proceedings under rule 16.2 FPR 2010 and, if so, was the court satisfied that it was not necessary to appoint a children's guardian for the child under rule 16.4 FPR 2010. That question had already been decided albeit without the proper context of the concurrent adoption application being considered. The second question involved consideration of rule 14.3(1) FPR 2010 which provides that the child is a respondent to the adoption application of his step-father. That engaged rules 16.3(1)(b)(ii) and 16.4(1)(b) FPR 2010 which together require the appointment of a children' guardian unless the court it is satisfied that it is not necessary to do so to safeguard the interests of the child.
 The Judge expressed the test that he applied to the latter question to be “I do not see a reason to keep [the child] as a party to the proceedings…I am entirely satisfied that that there is no need to appoint a professional for an opinion”. That was wrong with the consequence that the protections afforded to the child by being a party to adoption proceedings were removed despite the proceedings involving a proposal for a fundamental change in the child’s status i.e. the removal of the father's parental responsibility by adoption. No one thought to appeal that decision although the judge appears to have considered permission to appeal which he refused.
 There was a further ancillary issue which was relied upon by the judge in relation to whether S should be represented by a children’s guardian and that was whether to do so would cause a delay. Delay was not a particular issue in relation to the adoption application but it was in relation to the application for contact. That said, nothing turned on it on the facts of this case. S had not had direct contact with his father since 2008. The local authority adoption agency report writer had had a mishap and had broken her wrist so that in any event the proceedings were delayed until December 2014.
 When the final hearing came to begin on 10 December 2014, the judge and the parties were deflected from their designed purpose. It is not a criticism but a statement of fact bound up in the reality of life that some people can only get to the resolution of their issues at the court door despite intensive pro-active case management by a judge and collaboration by the parties. That is what happened in this case.
 This court is told that on three occasions the parties believed they had reached agreement on the cross applications and on two of these occasions a draft order had been drawn and handed to the judge. On each occasion, the father indicated that an agreement had not been reached when the parties returned to court. On two of the occasions the witness who had been the Cafcass FCA was sent away so that the detail of any oral evidence or cross examination that there might have been from him was no longer available to the court. The time that was taken for the extensive and ultimately unsuccessful negotiations between the parties led to a rushed and fragmented hearing. On the first day, evidence did not begin until 3pm and on the second day, not until after lunchtime. It is apparent from the judgment that the judge was at least irritated by the father's negotiating stance. That was not appropriate. There was no logical connection between a decision based on the best interests of S and the father's conduct of the proceedings on the facts of this case.
 The content of the evidence that was heard and its provenance raises the most significant areas of concern. Whether because the Cafcass FCA had been sent away on two occasions or otherwise, it was decided that further oral evidence need not be heard from that officer. Despite that decision, which at least implied that the FCA's advice was uncontentious, the judge did not follow it and instead made no order for contact while indirect contact had been recommended. Although the judge comments in judgment that he had a Cafcass report in respect of the adoption application, none of the Cafcass materials this court has seen commented directly on the merits of adoption in a way that was necessary from the child's perspective. That is not a criticism of the Cafcass officer. He was not reporting on the adoption application because the child's representation through a children's guardian had been removed.
 The oral evidence given by the social worker employed by the local authority adoption agency was significant. It clearly impressed the judge. As an assessment, it was undoubtedly a quality piece of work but there was a major omission in its content, namely whether and to what extent the history of the case demonstrated that the father had been alienated from S and, if so, was that by the alleged conduct of the mother. Furthermore, the social worker was a colleague of the mother in the same children’s services department of the local authority at the time prior to and at the time the assessment was undertaken. Given the weight which was placed upon this witness’s evidence in these proceedings and which a court will ordinarily place on specialist evidence which is not contradicted, a real issue arose about the perception of bias. The local authority at least by implication acknowledged that perception in its decision to instruct an independent social worker to assess the step-father’s adoption application. Critically, it was not thought necessary to deal with the father’s perception of bias in the assessment of him. That task was necessary and the perception of bias pervaded this appeal.
 It appears that the parties may have agreed that the only evidence that the court would hear in the time that it had available would be the evidence of the local authority adoption agency social worker and such evidence from the Cafcass FCA as he had been able to give before he was sent away in the expectation the applications were agreed. That is regrettable for reasons I shall expand on in due course. It was open to the judge to override any agreement come to by the lawyers so as to ensure that any challenge which a birth parent might properly make to the care of his child by an adoptive applicant was permitted, in particular where his own contact with that child was to be restricted in the manner finally determined.
 The court unwittingly entered into a process constrained by time and the parties’ agreement which did not permit the father to present his case in an adequate way including by cross examination of the step-father and the mother. I find it difficult to accept that a father who actively opposes a private adoption application should not at least have the opportunity to put his case by asking questions of the mother and her new husband. If one then adds to that, the fact that the local authority witness was a colleague of the mother who did not deal with the history of the case and the alleged conduct of the mother (i.e. the father’s case) in circumstances where father harbours a legitimate perception of bias, the hearing on such an important question as adoption and the severance of contact was procedurally irregular and accordingly unfair.
 In summary, the process was unfair because a) the court was misled about the involvement of the child and his representation in the adoption application and, given the issues in question namely adoption with no contact, it was inadvisable at the very least to discharge the child’s guardian and remove the child as a party: it removed the child's voice from the process; b) the limitation in the oral evidence that was heard, albeit caused by an agreement between the parties that cannot have been right, created a procedure within which the father’s case was not put in any sufficient way, if at all, so that the process was unfair; c) the evidence of the local authority social worker while apparently coherent and professional, did not deal with the issues of history relating to the mother and was compiled by a professional colleague of the mother so as to give rise to an unacceptable perception of bias; and d) the court did not deal with the significant issues of fact that had arisen about why contact had not occurred in the past and why the child' mother had not engaged with the previous proceedings.
 For all these reasons I have come to the conclusion with some regret that the judge permitted a procedure which with the benefit of hindsight is sufficiently flawed as to amount to an irregularity because it was unfair.
 The court concluded at the end of the hearing that the appeal should be allowed and that the adoption and contact orders should be set aside. These are my reasons for concurring in that decision. The matter was remitted for urgent case management directions before the Family Division Liaison Judge for the South Eastern Circuit with a view to a re-hearing being conducted before a different judge outside the family justice area concerned.
Lady Justice Sharp:
 I agreed that this appeal should be allowed for the reasons given by my Lord,Lord Justice Ryder and with the consequential directions made.
Lady Justice Macur:
 For the reasons given by my Lord, Ryder LJ, I agreed that this appeal should be allowed and with the consequential directions made.