In the leading judgment of Sir Andrew McFarlane P (sitting with Lewison and King LLJ), Re T (Adoption Hearing: Involvement of Applicants) [2024] EWCA Civ 189 sets out the involvement prospective adopters are entitled to have as applicants to adoption proceedings.
Background
The adopters (hereafter Mr and Mrs A) issued an application in June 2023 under s49 ACA 2009 to adopt a child, then aged 7, who had been placed with them as prospective adopters in early 2023 by the local authority pursuant to a placement order.
The order setting down the hearing in the adoption application was not sent to the adopters, who were given the date by their social worker. Mr A was told by court staff this was because ‘we never serve adoption applicants’. On emailing the court for confirmation he would be permitted to attend the hearing, the DFJ, HHJ Richards responded ‘prospective adopters are not permitted to attend adoption hearings. This is usual practice’.
A further request by Mr A made through solicitors to attend the hearing (remotely if necessary) for the purposes of being able to tell his adopted child he had been present at the making of the order was further rejected by HHJ Richards on the basis that ‘the court does not consider that the reason for the request to attend the court hearing is a valid one’.
At the hearing on 31.08.2023, HHJ Richards adjourned the adoption application to allow birth parents to file statements. The adopters were not provided with the order or any update from the court but were informed by the social worker in September that the judge had adjourned the application as he was not satisfied the parents had been served and given the opportunity to oppose. No note of the hearing was provided, and the order did not record who attended the hearing.
In passing, the court noted the failure of the LA solicitor on 31.08.23 to take a full note or memorandum of the hearing was serious; a reminder to all to take as full a note as possible even in the shortest of hearings.
Mr A then filed a request for a transcript of the August hearing. The court office referred the application to HHJ Richards who refused the application, but permitted a copy of the August order to be sent to Mr A. It was the judge’s decision to refuse the transcript request that was subject to appeal.
Mr A did not renew his application to attend court hearings and a final adoption order was made on 29.09.2023. The adopters were told of the outcome by the social worker on 06.10.2023.
Adopters’ Attendance at Hearings
The judgment sets out in some detail the procedural rules for adoption proceedings as set out in Part 14 of the Family Procedure Rules 2010.
Under r14.3, the prospective adopters are the applicants to proceedings for an adoption order and are parties to proceedings. Under r14.15, the court is required to give notice of any hearing in an adoption application to ‘the parties’, thus including the adoption applicants.
Under r14.15, the notice that must be given is:
- Of the date and place where the application will be heard; and
- Of the fact that, unless the person wishes or the court requires, the person need not attend.
The wording of r14.15 is permissive as opposed to prohibitive; it gives the party the opportunity to attend if they wish, but does not provide the court with the power to prevent them from doing so.
Under r14.16, ‘any person who has been given notice in accordance with rule 14.15 may attend the final hearing and, subject to paragraph (2), be heard on the question of whether an order should be made’. [1]
The default position under r14.16 (6) is in fact that the court cannot make an order unless the applicant and child personally attend the final hearing; that is subject to r14.16 (7) which provides the court may direct that the applicant or the child need not attend. Again, this is a permissive rather than restrictive and provides no power for the court to prohibit an applicant attending the hearing of their application.
The court refers to the clear summary of the rules as set out in the President’s Guidance: Listing Final Hearings in Adoption Cases from April 2018.[2]
Application for Transcript
Under r27.9 FPR (1), any hearing in family proceedings will be taped or digitally recorded unless otherwise directed. Under r29.9 (3), ‘unless the court directs otherwise, a person to whom paragraph (4) applies may require a transcript of the recording of the hearing in proceedings to be supplied to them’. Paragraph (4) applies to a party to proceedings.
The Appeal
Mr A’s appeal was on three grounds:
(1) the judge erred in law in holding his permission was required to provide a transcript to the appellants (who were parties to proceedings);
(2) if he did have discretion to refuse permission, he should have allowed release of the transcript, and
(3) the judge erred in refusing permission for the adopters to attend the final hearing either in person or remotely.
In respect of Ground (3), the court emphasised neither statute nor court rules afford the court the power to prohibit the applicants in adoption proceedings from attending a hearing of their own application. If they seek to do attend, the court must make appropriate arrangements. In cases where anonymity is to be preserved, this could include remote attendance with the adopter’s microphone and camera switched off.
In respect of Grounds (1) and (2), the court held the discretion of the court in respect of the direction for a transcript must be exercised judicially and on reasonable grounds. In this case, the court had erroneously sought to reverse the position established under the rules so as to require Mr A to obtain permission for a transcript. No reason was provided for the decision to direct no transcript and the court incorrectly asserted that the order from 31.08.23 provided Mr A with all the information he needed.
The court noted it must be the case that, when the court has prevented a party from attending a hearing and that party requests a transcript of the hearing, the request should be granted unless there are clear and specific reasons for refusal.
Mr A’s appeal therefore succeeded on all three grounds.
Comments
The court concludes by reflecting that it is a matter of concern if the professional approach by local authorities, the judiciary and court staff has developed to a point where prospective adopters are actively discouraged from attending hearings in their own cases. The court also expresses concern about (as in this case) the LA being treated as the de facto applicant in such applications resulting in the actual applicants receiving no notice of hearings or orders (this is to say nothing about the potential conflict of interest between adopters and the LA in such applications…!).
Going forward, adoption centres have been invited to review their current practices. For court centres, this may involve ensuring compliance with requirements for serving notice and that secure and confidential arrangements can be made for adopters to attend hearings remotely. For LA’s, this may involve re-visiting what advice is given to prospective adoption applicants so as not to unintentionally discourage attendance at court.
A helpful list of specific practical steps the court should take on receipt of a serial number adoption application is set out at paragraph [36] and should be considered carefully by those working in the court service.
The court also intends to invite a review of the President’s 2018 Guidance by the Public Law Working Group.
The message at this stage however is clear for all professionals: adopters are entitled to play an active role in respect of their applications, including participation in court hearings, and measures must be put in place by courts to allow this to occur (including measures to protect confidentiality).
[1] Paragraph 2 relates to persons whose application for permission to oppose an adoption order has been refused.
[2] https://www.judiciary.uk/wp-content/uploads/2018/04/pfd-guidance-doption.pdf
