H (A Child)

When deciding whether to grant leave to apply for a residence order, the court must apply the criteria in section 10(9) of the Children Act 1989 to the particular circumstances. A proposed application may have sufficient merit to favour leave, but granting leave does not predict the result of the substantive application. A close legal connection through a half-sibling, the principle that siblings should be brought up together where possible, a recent positive assessment, and the applicant’s ability to provide care may outweigh disruption and delay. Where the circumstances require a judicial determination, the local authority should not determine the child’s future without the proposed application being heard.

Mr and Mrs A, who had adopted MH’s half-brother, sought leave under section 10 of the Children Act 1989 to apply for a residence order concerning MH. MH had been subject to a care order and then freed for adoption. He remained with foster carers, who later wished to adopt him. The local authority had preferred another couple, but that couple withdrew after the application was made.

The county court refused leave, treating the As’ connection with MH as indirect and considering that their application would cause further disruption and delay. The appeal concerned whether the judge had properly exercised the discretion required by section 10(9), and whether a residence-order application could be pursued in relation to a child freed for adoption.

1. Appeal allowed. The refusal of leave was set aside, and Mr and Mrs A were given leave to apply for a residence order.
2. The county court judge’s discretion was vitiated by insufficient weight being given to the unusual features of the case. The As were the legal parents of MH’s half-brother. It was right in principle for half-siblings to be brought up together wherever possible. The evidence showed that the As were wholly capable of caring for MH, and their recent positive assessment meant that the substantive application could proceed without further assessment-related delay.
3. Those factors, together with the local authority’s change of plan, substantially weakened the disruption consideration. The judge had therefore got the balancing exercise wrong. The court did not need to determine whether there had also been a misdirection concerning Re J (Leave to issue application for residence order) [2003] 1 FLR 114.
4. A residence-order application could properly be made in relation to a child freed for adoption. M v C and Calderdale Metropolitan Borough Council [1993] 1 FLR 505 was binding authority that the court had jurisdiction to make an order under section 8 of the Children Act 1989 in such circumstances. Re C (Minor) (Adoption: Freeing Order) [1999] 1 FLR 348 concerned an adoptive limbo and the discharge of a freeing order, and did not apply to the present case.
5. The nature of the proposed residence application itself required it to be heard. There was a substantial difference between granting leave and determining the substantive application. Granting leave did not predict the outcome.
6. Wilson LJ agreed that the merits of the proposed application fell for broad consideration. Buxton LJ agreed and stressed the need for urgent progress and for the residence and adoption applications to be heard together, preferably before a different judge.

• Court of Appeal (Civil Division): The appeal from the Liverpool County Court was allowed. The refusal of leave was set aside, leave was granted to apply for a residence order, and directions were given for the residence and adoption applications to be progressed together.