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ADOPTION: X and Y v Warwickshire County Council and B [2009] EWHC 47 (Fam)

Date:5 MAR 2009

(Family Division; McFarlane J; 5 March 2009)

Adoption orders were granted in respect of four children, subject to an order providing for indirect contact between the father and the children. The adopters appealed. The local authority and father conceded that the appeal must succeed because of a procedural error, but a large number of other procedural errors had been identified.

This case provided an example of how not to deal with an adoption application. The family proceedings court had totally failed to meet the mandatory requirement under Adoption and Children Act 2002, s 46(6) to consider the wishes and feelings of the adopters on the issue of contact before making any adoption order. The effect of this failure was compounded by the fact that the court had failed either to appoint a children's guardian or to give reasons why it was not necessary to do so. The result had been that the only two parties before the court, that is the father and the local authority, had agreed a regime for contact without either informing, or obtaining agreement from, the adopters. This was not only contrary to s 46(6), but was also a breach of the adopters' right to a fair trial. There were a number of other errors. The local authority had failed to send a copy of its social work statement to the adopters, so that they could see what was being said about contact. The court had made a number of adjournments to enable the father to consider the social worker's report on contact, but had failed to do the same for the adopters. The father had been treated as requiring leave to apply for contact, whereas before the making of an adoption order the father did not require leave to make either an application for contact during the adoption placement, or an application for post-adoption contact. Including a generally stated grant of 'leave to apply for contact' in the adoption order could have been interpreted as the grant of an open-ended facility to the father to apply for contact in the future, after the adoption order was made. The recital in the order to the effect that the father 'may well issue a further application for leave to apply for direct contact' was also unhelpful and bad practice. Fundamental issues such as contact should not be reopened post-adoption, in the absence of some fundamental change of circumstances; the court should have determined the issue of any future direct contact prior to the making of the adoption order. The court should also have followed the Family Procedure (Adoption) Rules 2005 throughout, but had failed to do so: neither of the natural parents had been given notice of the proceedings or of the first directions hearing; the first listed hearing had failed to consider the list of topics required by r 26(1) of the 2005 Rules; when the case was adjourned because the authority's legal representative had not attended, the court had failed either to consider or to give any directions, in particular there had been no attempt to trace the mother and no directions had been given about prompt disclosure of information and evidence, with the result that the adopters had not even seen the social worker's report on the issue of contact; the father had received notice of the hearing 3 months after issue rather than 4 weeks after issue, resulting in a delay; and when the father applied for contact no consideration had been given to the fact that the children had as a result became respondents, and that a children's guardian must therefore be appointed, unless the court determined that it was unnecessary to do so. The contact order was set aside and a rehearing ordered.