T (A Child), Re

In adoption proceedings, serious procedural unfairness cannot be overlooked because the applicant’s case appears hopeless or a retrial would cause delay, expense or anxiety. Where the child has not been made a party, the guardian has consequently not been properly appointed or represented, and the parent has not seen a report relied on decisively against them, the court may be unable to uphold the orders. The proper course is to set aside the orders and remit the matter for retrial before a different judge. Expedition remains important, but must operate consistently with a fair opportunity to participate and challenge the evidence.

The mother appealed against orders made by HHJ Rundell in the Worcester County Court. The judge dismissed her application under section 47 of the Adoption and Children Act 2002 for permission to oppose the adoption of her youngest child and made an adoption order.

A guardian’s report, which was adverse to the mother, had not been served on her before the hearing. The mother was unrepresented. The child had not been made a party, so the guardian was not properly appointed and neither the child nor the guardian was legally represented. The central issue was whether those procedural deficiencies could be disregarded because the mother’s application appeared unlikely to succeed.

1. Appeal allowed and orders set aside. The orders made on 13 July were set aside and the matter was remitted for retrial before a different judge.
2. The local authority and guardian accepted that the child should have been made a party. Because that had not occurred, the guardian was not properly appointed and neither the child nor the guardian was legally represented during the hearing.
3. The mother had not seen or read the guardian’s report of 8 July. The report was relied on against her, yet she had no opportunity to consider it, cross-examine on it or challenge its effect. It contained no privileged third-party information justifying non-disclosure under the guidance in Re D (Minors) (Adoption Reports: Confidentiality) [1995] 3 WLR 483.
4. Those defects were altogether too serious to permit the Court of Appeal to uphold the result below, even though the respondents argued that the mother had no realistic prospect of success and that a retrial would waste time and money and cause the adopters anxiety.
5. The case could not fairly be resolved in the Court of Appeal by inviting submissions on the report, since counsel had only been instructed the previous evening and had not received the court bundle. The further hearing was to be expedited, and the mother was to remain publicly represented.

• Court of Appeal (Civil Division): appeal allowed; the orders made by HHJ Rundell were set aside and the matter was remitted for retrial before a different judge.
• Worcester County Court: the mother’s application for permission to oppose the adoption was dismissed and an adoption order was made. Permission to appeal was refused.