J (A Child), Re

When deciding whether to grant leave under section 10(9) of the Children Act, the court must give proper recognition and weight to Parliament’s statutory checklist. The court is not required independently to assess the applicant’s prospects of ultimately obtaining the proposed order. The good arguable case test developed for applications under section 34(3) should not replace the statutory criteria governing section 10(9) applications. Grandparents’ potential contribution to children, particularly children of disabled parents, should not be rejected without full inquiry, having regard to their Article 6 and Article 8 rights.

The local authority sought a care order in respect of a very young child whose mother was unable presently to provide care. The maternal grandmother applied for party status and leave to issue an application for a residence order, relying on her family connection and experience in caring for children.

The Swansea County Court refused the application, concluding that she had not demonstrated a good arguable case. The grandmother appealed. The central issue was whether the judge had applied the correct approach under section 10(9), or had placed excessive reliance on the test formulated in Re M [1995] 2 FLR 1986.

1. Appeal allowed. The grandmother was accorded party status and given the right to issue an application for a residence order. Counsel were directed to agree consequential directions.
2. Section 10(9) of the Children Act requires particular regard to the nature of the proposed section 8 application, the applicant’s connection with the child, the risk of disruption causing harm, and, where the child is looked after by a local authority, the authority’s plans and the parents’ wishes and feelings.
3. The language of section 10(9) is transparent. It does not require the judge independently to review the applicant’s future prospects. The statutory checklist must not be displaced by a separate threshold inquiry into whether the applicant has a good arguable case.
4. Re M concerned an application under section 34(3), where the court adopted criteria corresponding to those in section 10(9) and required a serious issue to try. Its test was directly related to the section 34 exercise. Although useful in that context, it should not be treated as replacing the statutory exercise under section 10(9).
5. Trial judges should recognise the valuable contribution that grandparents may make, particularly where a parent is disabled, and should exercise caution before dismissing that possible contribution without full inquiry. That approach provides essential protection for grandparents’ Article 6 and Article 8 rights.
6. The decision below was understandable on the evidence and submissions presented. The appeal succeeded because the grandmother’s case had not been presented or analysed with sufficient force under the statutory criteria.

• Court of Appeal (Civil Division): The appeal from the Swansea County Court was allowed. The refusal of party status and leave to issue a residence-order application was reversed.