S (A Child), Re

In private children and step-parent adoption proceedings, the child’s procedural status and participation must be determined under the distinct rules governing each application. A child who is a respondent to an adoption application cannot be removed without proper consideration of the applicable safeguards, including representation by a children’s guardian unless the court is satisfied that this is unnecessary to safeguard the child’s interests. Time pressure and procedural agreements cannot deprive a parent opposing adoption of a fair opportunity to present material evidence and cross-examine witnesses. Where central evidence is materially incomplete and carries a legitimate perception of bias, the court must address that issue. Serious failures may make the hearing unfair and require the orders to be set aside and the case reheard.

The father applied for direct contact with his eight-year-old son. The mother’s husband applied for an adoption order. The Family Court sitting at Reading, in a judgment handed down on 17 February 2015, made an adoption order and made no order for contact. The father appealed.

The child had not seen his father since infancy. The proceedings also involved unresolved allegations concerning abuse, alienation, the failure of contact to progress and the mother’s non-engagement with earlier proceedings. The appeal concerned the child’s party status and representation, the restriction of oral evidence, the perceived bias and incompleteness of specialist evidence, and whether the resulting hearing was fair.

Lord Justice Ryder gave the reasons for the court’s unanimous decision. Lady Justice Sharp and Lady Justice Macur agreed with those reasons and the consequential directions.

1. Party status and representation. The father’s contact application engaged the discretionary joinder provisions in Part 16 of the Family Procedure Rules 2010. The step-father’s adoption application engaged Part 14. Under rule 14.3(1), the child was a respondent and therefore an automatic party to the adoption application. The judge wrongly elided the discretionary contact question with the separate adoption question.
2. Children’s guardian. Rules 16.3(1)(b)(ii) and 16.4(1)(b) required a children’s guardian to be appointed unless the court was satisfied that this was unnecessary to safeguard the child’s interests. The judge applied the wrong approach by asking whether there was a reason to retain the child as a party or appoint a professional. The child was removed as a party without proper notice to the child’s representatives or Cafcass, and without an opportunity for representations. That wrongly removed the child’s participation in proceedings involving the fundamental change of adoption.
3. Fair hearing. The parties’ agreement and the limited time available did not justify preventing the father from presenting his case adequately. A birth parent actively opposing a private adoption should ordinarily have the opportunity to question the other parent and the proposed adopter, particularly where material factual issues remain unresolved. The court could override any agreement between advocates to secure a fair hearing.
4. Evidence and perception of bias. The local authority social worker’s assessment was coherent and professional but omitted the history relevant to the father’s allegation of alienation. The witness was also the mother’s professional colleague. Given the weight placed on the evidence, this created a legitimate perception of bias which had not been addressed. The court also failed to resolve significant issues concerning the history of contact and the mother’s non-engagement.
5. Disposition. The cumulative procedural defects amounted to an unfair irregularity. The adoption and contact orders were set aside. The matter was remitted for urgent case management before the Family Division Liaison Judge for the South Eastern Circuit, with a rehearing before a different judge outside the family justice area concerned.

• Court of Appeal (Civil Division) — [2015] EWCA Civ 649: allowed the appeal unanimously, set aside the adoption and contact orders, and remitted the matter for urgent case management and rehearing before a different judge.
• Family Court sitting at Reading — His Honour Judge Oliver’s judgment of 17 February 2015: determined the father’s direct-contact application and the step-father’s adoption application, making an adoption order and no order for contact.