The half sister of an adopted child applied for leave to apply for a care order, on the basis that once a year was not enough

The facts
A 6-year-old female child was made the subject of a care order. She was placed first with foster carers, and then with prospective adopters. With the approval of the local authority, her 17-year-old half sister (the girls shared a mother) had contact with her three times a year while she was with the foster carers, and contact with her three times during her first year with the prospective adopters.

The local authority then told the half sister that contact was having a detrimental effect on the child’s stability and that, on the basis that the prospective adopters were willing in principle for contact to continue, it proposed to reduce contact from three times a year to once a year. The half sister, on the basis that once a year was not enough, applied for leave to apply for a contact order, to continue after the making of the adoption order. The judge refused leave to apply, on the ground that the court would be unlikely to make a contact order against the prospective adopters’ wishes, and that, if an application for contact were made, it was unlikely to succeed. The half sister appealed.

By s. 10(9) of the Children act 1989 a half sister requires leave of the court before she can apply for contact and, in considering the application, the court must have have particular regard to the nature of the proposed application, to her connection with the child, to any risk that there may be of the proposed application disrupting the child’s life to such an extent that she would be harmed by it and, where the child is being looked after by a local authority, to the authority’s plans for the child’s future.

The Court of Appeal considered that the judge should have made more explicit reference to s. 10(9) and, in particular to the effect upon the child of the making of the application for contact, rather than simply finding that the actual application for contact was unlikely to succeed, but the Court of Appeal was not prepared to say that the judge was wrong. The appeal was dismissed.

Lord Justice Wall referred to a letter from the local authority, telling the half sister that the child had not settled easily with the prospective adopters. ‘Whilst it is accepted that following contact with birth family members, some degree of emotional and behavioural problems will be expected, there are significant concerns. The workers are of the view that contact has shifted the foundations of the stability of the placement. The concern is that if contact is at too high a level, then there will not be enough time for the child to “bed” into her placement. Whilst she does exhibit difficult behaviour following contact, she will then settle down, and there will be a short period of stability but, with contact presently happening on three occasions each year, her progress and stability is again lost following a further contact’.

Lord Justice Wall pointed out that the court had to conduct a balancing exercise. On the one hand, there was a close bond between the half sister and the child; on the other hand, the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely unusual. But, as in all children’s cases, the welfare of the child is paramount. If leave were given, there would be delay, there would be tension on the part of the prospective adopters, and there would be additional costs, none of which could be ignored when it came to the question of the risk of disruption to the child by the making of the application.

Lord Justice Wall concluded that the prospective adopters were genuinely anxious about the effect of the proceedings, and that their attitude to contact was a perfectly reasonable one. He concluded: ‘I hope very much that the half sister will be able to appreciate that the child’s primary need is to bed herself down in the household of the prospective adopters. If she is able to do that, I am reasonably confident that she will also be able to maintain her relationship with the child. Although I have no doubt that at the half sister’s age time seems to go very slowly, it will not be very long before the child is of age, and the two of them have a lifetime to maintain their relationship once the child herself is of age.’

There are two points to note about this case. First, it is most unusual for there to be direct contact between an adopted child and a family member, and the proposed adopters in this case must have been confident that, in principle, such contact would not damage their relationship with the child.

Second, the fact that, as required by s. 10(9) of the Children Act 1989, what the court conducted was a screening operation, deciding not whether the half sister should have contact, but whether she should even be allowed to apply. Lord Justice Wall included the element of costs but, in most cases relating to children, costs are relatively unimportant. He did emphasise the polarisation of attitudes caused by proceedings, as well as the delay and tension, and these are characteristic features of almost all litigation. Children invariably know or sense that there is litigation, and suffer accordingly. If the half sister had been given leave to apply, there would have been a delay of some months, a contested hearing, oral evidence (including that of the prospective adopters), a CAFCASS report and, possibly, exert evidence, all of which might have had a detrimental effect on the adoption.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented in the Legal Case Notes column aim to help the reader understand better the nature of and the types of decision-making within the court system.