R (A Child), Re

When deciding whether to permit a non-parent to seek a section 8 order, the court must apply the criteria in section 10(9) of the Children Act 1989. It must not replace them with a test based solely on whether the proposed claim has reasonable prospects of success.

The nature of the proposed application may nevertheless require a broad assessment of its merits. An application for post-adoption contact must be considered in light of the exceptional nature of imposing contact against reasonable opposition from prospective adopters. The risk of disruption under section 10(9)(c) concerns disruption caused by the proceedings themselves, including delay, tension, cost and the polarisation of attitudes, rather than merely the consequences of the order sought.

A 17-year-old half-sister sought leave under section 10(9) of the Children Act 1989 to apply for contact with a seven-year-old child who had been placed with prospective adopters. The sisters had a close relationship. The proposed frequency of direct contact had, however, been reduced from three times yearly to once yearly because of concerns about the child's security and adjustment within the placement.

Her Honour Judge Hughes QC, sitting as a deputy High Court judge in the Family Division, refused leave. The half-sister appealed. The principal issue was whether the judge had improperly determined the application by reference to its prospects of success, rather than applying the statutory criteria, and whether the prospective proceedings themselves posed a relevant risk of disruption.

1. Appeal dismissed. The judge had reached the correct conclusion, despite addressing the statutory criteria tersely. Lloyd LJ agreed with Wall LJ.

2. Section 10(9) of the Children Act 1989 supplies the governing criteria. Re J [2003] 1 FLR 114 and Re H [2003] EWCA Civ 369 prohibit substituting a general test based on whether the applicant has a good arguable case or reasonable prospects of success. They do not prevent a broad assessment of the merits when the nature of the proposed application is considered under section 10(9)(a).

3. The proposed order was for contact within adoption proceedings and was intended to continue after adoption. Its nature therefore required consideration of the established approach to post-adoption contact. Although attitudes to contact had developed since Re C [1988] 2 FLR 159, imposing contact against the wishes of prospective adopters remained extremely unusual. The relevant opposition was reasonable opposition.

4. Where adopters withdraw entirely from an earlier contact arrangement, they should provide reasons capable of consideration by the other party and, if necessary, the court. Re T [1996] Fam 34 illustrated that unexplained withdrawal may justify granting leave. Here, however, the prospective adopters continued to offer annual direct contact, indirect contact and the possibility of increased contact if the placement became secure. Their position, supported by the local authority and guardian, was reasonable.

5. Section 10(9)(c) concerns disruption caused by the proposed proceedings, rather than disruption caused by the eventual order. Continuing litigation presented a genuine risk through delay, expense, tension for the adopters and the polarisation of attitudes. Those consequences could properly be considered alongside the child's need for a secure and stable placement.

1. Court of Appeal (Civil Division): The appeal was dismissed. The refusal of leave under section 10(9) of the Children Act 1989 was upheld: [2005] EWCA Civ 1128.

2. High Court, Family Division: Her Honour Judge Hughes QC, sitting as a deputy High Court judge, refused the half-sister leave to apply for a contact order.