N (Children), Re

In care proceedings, a relative seeking leave to apply for contact under section 34(3) of the Children Act 1989 is not excluded merely because contact has begun or professionals support it. The statutory approach is that in section 10(9), rather than a separate judicially created test. A material dispute about the form of contact, including whether it should be supervised, gives the applicant a legitimate need to be heard. Existing contact does not remove that dispute. An appellate court should interfere with a case-management decision only where it falls outside the reasonable range, but refusal of leave in these circumstances crossed that threshold.

G, the elder brother of S, sought leave to apply within care proceedings for contact with his 16-year-old sister under section 34(3) of the Children Act 1989. His earlier private-law application under section 8 had stalled when the care proceedings began. The Family Court refused permission, considering that monthly supervised contact had already been achieved and that G’s views could be considered by the local authority, guardian and court. G appealed. His separate application to be joined as a party was not pursued. The central issue was whether refusal of permission was a permissible case-management decision where G sought a materially different contact regime.

1. The appeal was allowed and G was granted leave to apply for contact. The refusal was a case-management decision, but it was outside the range of reasonable decisions open to the judge. The Court of Appeal emphasised that appellate courts should not routinely second-guess experienced judges managing care proceedings.
2. The statutory and procedural framework was supplied by section 34(3) and section 10(9) of the Children Act 1989. The approach described in Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737 applied. The fact that some contact had already taken place did not mean that G’s application had been achieved or became unnecessary.
3. There was a real and significant dispute. G sought unsupervised contact, whereas the local authority and guardian contemplated a slower progression from supervised contact. Supervision was not merely a matter of degree. G therefore had a legitimate need to be heard before the court determined the issue. The judge’s proposed process of allowing the court to arbitrate could not adequately determine an issue on which G had a distinct view without hearing from him.
4. The Court accepted the grounds that the judge had failed to give proper consideration to the outstanding contact application and the relevant fair-hearing and family-life interests, and had elevated concern about disruption around S’s examinations into harm without evidence reaching that level. The unsettled long-term care plan and the importance of the sibling relationship reinforced the conclusion.
5. McFarlane LJ further observed that a contact order might ultimately be appropriate even if the parties agreed on the current regime, so that G could be heard if arrangements were later changed. That was forward-looking guidance rather than a necessary basis for the appeal. The formal order was: application granted.

1. Court of Appeal (Civil Division) — On 19 April 2016, the court allowed the appeal and granted G leave to apply for contact.
2. Leicester Family Court — On 22 December 2015, HHJ George refused permission to apply for contact, having regarded existing supervised contact and professional involvement as sufficient. Permission to appeal on G’s separate application for party status had been refused and that issue was not renewed.