P (A Child)

When deciding whether to grant a close family member leave to seek a residence order, the court must have particular regard to the statutory criteria in section 10(9) of the Children Act 1989. Those criteria should not be displaced by an excessively critical or premature assessment of the applicant’s prospects on the papers. Where the issue is whether the child can be cared for within the family, and a final hearing with oral evidence is already fixed, the court should ordinarily allow the judge to assess the proposed carer directly at trial. A previous test concerning the merits of an application for leave remains relevant, but must be applied with proper regard to the statutory criteria and Convention rights.

Care proceedings concerned a four-year-old child. The maternal grandmother had previously cared for the child, but had stood aside while the child lived with the paternal grandmother. After that placement ended, the child moved to foster carers.

The maternal grandmother applied to re-enter the proceedings, obtain party status and seek a residence order. The Family Division judge refused the applications and refused permission to appeal. The grandmother obtained permission from the Court of Appeal shortly before the listed final hearing. The central issue was whether the judge had lawfully exercised the discretion to grant leave under section 10(9) of the Children Act 1989.

1. Appeal allowed. The judge had been plainly wrong to give greater weight to the three-part approach stated in Re M (Care: Contact: Grandmother's Application for Leave) [1999] 2 FLR 86 than to the statutory criteria in section 10(9) of the Children Act 1989.
2. The statutory factors required particular regard to the nature of the proposed residence application, the grandmother’s close connection with the child, the risk of disruption, the local authority’s plans and the parents’ wishes and feelings. The grandmother’s connection was exceptionally close. Her explanation for standing aside was plausible. The parents supported her, and allowing the application would not jeopardise the fixture.
3. The court must avoid conducting a premature mini-trial on the papers where the applicant’s case requires assessment through oral evidence. The fact that the grandmother sought to resume an earlier position, rather than enter the proceedings unexpectedly, was highly relevant. The final decision whether she could provide adequate care had to depend on the trial judge’s direct assessment, particularly in the witness box.
4. Lady Justice Arden agreed that summary disposal could be lawful in an appropriate case and would not necessarily violate the Convention right of access to court. This was not such a case because the judge had assessed criticisms of the grandmother without hearing her evidence.
5. Application allowed. Costs were to be assessed in accordance with the Community Legal Service Regulations.

• Court of Appeal (Civil Division): Permission to appeal granted and appeal allowed. The judge’s refusal of leave to re-enter the care proceedings and apply for a residence order was set aside.
• Family Division: His Honour Judge Tyrer, sitting as a High Court Judge, refused the maternal grandmother’s applications and subsequently refused permission to appeal.