Case No: B4/2010/1338
Neutral Citation Number: [2010] EWCA Civ 1527
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
HIS HONOUR JUDGE TYZACK QC
(LOWER COURT No. EX34/2009)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 4th November 2010

Before:

THE PRESIDENT OF THE FAMILY DIVISION
(SIR NICHOLAS WALL)
LADY JUSTICE ARDEN 
and
LORD JUSTICE WILSON
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In the matter of T (a child)

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Miss Sarah Evans (instructed by Gowmans, Paignton) appeared on behalf of the Appellant, the “grandmother”.

Miss Tina Cook (instructed by Michelmores, Exeter) appeared on behalf of the First and Second Respondents, the adopters.

Mr Dafydd Griffiths (instructed by Tozers, Newton Abbot) appeared on behalf of the Third Respondent, the child, by his guardian ad litem.

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Judgment
Lord Justice Wilson:

1.	A grandmother, or, if I may be forgiven by her for being brutally accurate, a former grandmother, appeals against the dismissal by His Honour Judge Tyzack QC, in the Exeter County Court on 18 May 2010, of her application for an order for contact with her grandson or former grandson.  He is N and was born on 27 April 2008 so he is now aged two.  On 2 February 2010 an adoption order was made in relation to him.  It follows that, although of course still connected to each other biologically, the appellant and N are no longer related in law.  

2.	The appeal illumines a difficult problem which can arise in relation to a child's contact following adoption with a member of his biological family when, for whatever reason, the adopters and that family member have developed a different understanding about whether such contact will or may take place.

3.	It is easy to conclude that it is the responsibility of the local authority which placed the child for adoption to eliminate, so far as possible, misunderstanding between the adopters and the family member in relation to future contact.  If a misunderstanding between them has occurred or may have occurred, the responsibility for it may, of course, lie with one or other of them but it may well lie, instead, with the local authority for having failed to give precisely the same message about it to the adopters on the one hand and to the family member on the other.  The room for misunderstanding is, I fear, substantial because, although in some adoption cases it will be clear to all concerned either that there will not be contact or that, subject of course to any significant change in circumstances, there will be contact, there are many other cases in which the situation has to be left on a more fluid basis, namely that there may be contact.  It is in that situation, which seems to me to approximate to the present, that the ground is fertile for misunderstanding and that the placing local authority must take particular care to try to minimise the risk of it.

4.	On 22 March 2010 HHJ Tyzack QC granted the appellant leave to apply for a contact order under section 10(1)(a)(ii) of the Children Act 1989.  He directed the local authority which had placed N for adoption, namely Devon County Council, to file and serve a short position statement limited to the stance of the adoptive parents in relation to the application.  He also appointed a Cafcass officer to act as N's guardian ad litem in the proceedings pursuant to Rule 9.5 of the Family Proceedings Rules 1991.

5.	The hearing before the judge on 18 May 2010 had been listed as a hearing only for directions.  At that hearing the adopters, while not personally present, were represented by a solicitor.  There was also legal representation for the appellant and for N by his guardian; indeed a solicitor also attended on behalf of the local authority.  It seems that, in the corridor of the court, there was agreement on all sides that the judge should be invited to make further directions, in particular in order to elucidate what, at various stages up to the making of the adoption order on 2 February 2010, the local authority had said to the appellant and to the adopters respectively on the subject of her contact with N following the adoption and, of course, what had been said by them in response.  In the event, however, in the light in particular of oral evidence given to him by the guardian, the judge decided there and then to dismiss the appellant's application. 

6.	Thus today, consonant with the stance taken on her behalf before the judge, the appellant by Miss Evans strenuously contends that it was at the very least premature for him to dismiss her application and that directions should have been given in order to extract material from the files of the local authority which, so Miss Evans contends, would confirm the appellant's account of the nature of the representations made by them to her about future contact and would elucidate the representations made not only by the local authority to the adopters about future contact but also by the adopters in response.  The adopters and N, by his guardian, appear before us in order to oppose the appeal.

7.	It follows that, if and insofar as a misunderstanding arose between the appellant and the adopters about her future contact with N, the evidence, as it stood, did not enable the judge -- and would not enable us -- to make any firm apportionment of blame in relation to it.  We can highlight in general terms the dangers of misunderstandings and briefly suggest what local authorities might do in order to reduce the risk of them.  But our focus is, of course, on whether the judge erred in his discretion in imposing early dismissal upon the appellant's application.

8.	It was on 15 May 2009, in the South Devon Family Proceedings Court, that the care and placement orders in relation to N were made.  His biological mother, a heroin addict, was in no position to care for him.  His father played no part in the proceedings.  The appellant, who is the mother's mother, put herself forward as a long-term carer for him.  There was a lengthy assessment of her candidacy; and the professional verdict, which during the substantive hearing she ultimately and courageously accepted, was negative.  She had confronted, and still apparently continues to confront, grave problems in the care of her own children, all now adult or adolescent; she had provided a highly unstable family environment for them; and she had had an alcohol problem.  A psychological report on her, written by a chartered psychologist and a child therapist dated 27 February 2009, concluded that, in the event that he was adopted, it would in principle be in N's interest to have direct contact with the appellant.  They wrote: 

"[The appellant] will need to develop a collaborative and constructive approach to working with any adopters and she will need to affirm their primary role in [N's] life as his psychological parents. This will not only help [N] develop a strong bond with his new carers and promote beneficial contact but will also help [the appellant] move on from her inevitable sense of sadness and loss ... 
In our view, contact between [the appellant] and [N] should be maintained. It is vital that any prospective adopters are prepared for this eventuality and [the appellant] is given the support she needs to enable her to manage and maintain her side of the contact arrangements… 
In our view direct contact post-placement is capable of working successfully if [the appellant] is able to acknowledge her changed role in [N's] life, support the adoptive placement and is given proper ongoing preparation and support."

9.	The care plan placed by the local authority before the magistrates, namely that he should be placed for adoption, proceeded as follows: 

"Consideration will be given to twice yearly direct contact between [N] and his maternal grandmother, if [she] can meet the conditions necessary for this to be a positive and stabilising experience for [N]... In short, [she] will need to demonstrate that she is able to: 
• accept the adopters as new psychological parents 
• affirm the adopters 
• work constructively with the adopters 
• relinquish any perception of herself in a role as parent 
• relate positively to [N] 
• validate the adoptive placement 
• contain potential emotions, e.g. guilt, anger and anxiety. 
... 
[She] will be offered some direct contact with [N] if she can meet the conditions detailed above. This is in recognition of her being the only available custodian of information in respect of [N's] birth family."

10.	In her report to the magistrates in the placement proceedings N's Children's Guardian wrote: 

"If [N] is placed for adoption it is my opinion that direct contact of twice yearly with twice yearly indirect contact (prior to direct occurring) would be in [N's] best interests if his maternal grandmother can demonstrate a willingness to accept the situation and validate the adoptive placement. 
Clearly it will be necessary for the local authority to work with [her] to advise and support her when decisions about future contact are made."

11.	Thus it was that, when on 15 May 2009 the magistrates made the care and placement orders, there was a fairly firm, albeit qualified, intention on the part of the local authority, and of the court, that, following placement and adoption, there should be an element of direct contract between N and the appellant.  We should presume that the local authority thereupon searched for adopters who would express themselves as amenable in principle to such contact provided always that the appellant was to meet the conditions which the local authority had identified.  

12.	N was placed with the adopters in July 2009.  In the event the last contact which has occurred between the appellant and N took place shortly prior to the placement.  More importantly for present purposes, a meeting between the appellant and the adopters, arranged by the local authority, occurred a few days prior to the placement.  In my view the fact that that meeting took place gives us a clear signal that at that time there was a substantial mutual expectation on the part of the adopters, the appellant and the local authority that, provided that the appellant could satisfy the identified conditions and subject of course to any significant change of circumstances, there would indeed be a degree of ongoing direct contact following adoption.  

13.	The judge dismissed the application for contact prior to the filing of any witness statement whether by the appellant or by the adopters.  So he had no first-hand evidence about the success or otherwise of the meeting in July 2009.  It is reasonably clear, however, that, at least from the perspective of the adopters, it was a difficult meeting which led them to become apprehensive, or more apprehensive, about direct contact on the part of N with the appellant.  

14.	In the proceedings which resulted in the adoption order dated 2 February 2010 the local authority filed an Annex A report which contained the following important passage: 

"Like many adoptive parents [the applicants] were a little concerned initially about the prospect of direct contact with birth families. Through the assessment process and preparation course, they changed in their viewpoint, to accept the need in certain cases for contact to be direct, and were very supportive of the idea of indirect contact. When it came to specifics for [N], it was clear that direct contact with birth parents would not be possible… However, they did have a meeting with [the] maternal grandmother, which was a very emotive meeting. They have agreed to participate in letter box contact with her [partly because she] is likely to be the only link he may have with his birth family… [They] were also prepared to consider [her] having direct contact with [N] at some point over the coming years -- but obviously this would need to be conditional upon both families' situations at the time, and ensuring that all parties felt the time was right. [They] would want to ensure that it would be a positive meeting for [N], and to ensure that this is the case, an assessment of [her] and her circumstances would need to be made nearer the time. However, they are happy, in the interim to continue with indirect contact …and to let [her] know how he is getting on."

15.	In my view it is a reasonable inference that, following their meeting with the appellant in July 2009, the adopters had become substantially more concerned about the prospect of N's direct contact with her than when his placement with them had first been discussed.  Miss Evans tells us this afternoon that, at court on 18 May 2010, the local authority made it clear that they had had two discussions with the adopters about the prospect of the grandmother's contact with N following adoption, namely in October 2009 and January 2010.  The terms of the Annex A report showed that, while they were not excluding the possibility of direct contact, the adopters wanted the local authority to conduct an assessment before it took place.  In that regard both the adopters, through Miss Cook today, and the local authority, by a letter which they wrote to the appellant's solicitors dated 26 January 2010, jointly add one further piece of information, namely that the local authority had agreed with the adopters that, in about August 2010, i.e. following N's placement with them for one year, they would conduct a review as to whether direct contact would be in N's interests.

16.	It is the appellant's case in these proceedings that at all times she understood that the firmer expectation of contact, as set out in the psychological report, in the care plan and in the guardian's report in the placement proceedings, still obtained.  So a big unanswered question, although in my view not the crucial question, is whether the local authority contend (and, if so, whether they can establish) that, prior to the making of the adoption order, they made clear to the appellant that, in the light of the concerns which the adopters had apparently developed, the expectations about her future contact with N had become more fluid.  I throw open for future expert consideration whether, where the ultimate stance of adopters in relation to future contact is neither a “no” nor a “yes” but a “may be”, the precise terms in which that stance is articulated in the Annex A report should, as a matter of good social work practice and of elementary fairness, at the same time be communicated to the family member whose contact is under address.  Then, if an issue between the adopters and the family member in relation to contact is thereby revealed, it can figure (as Miss Evans this afternoon strongly submits that in this case it should have figured) in the court’s mandatory consideration of contact following adoption under s.46(6) of the Adoption and Children Act 2002 and, if necessary, be the subject of an order, made immediately prior to the adoption order, pursuant to an application by the family member, with leave if necessary, for an order for contact under section 26 of the Act.  

17.	In circumstances in which, in a way understandably, all parties seem to have agreed outside court on 18 May 2010 that a fuller investigation should be made into not only what was currently being said about contact by the adopters but also what had been said about contact between July 2009 and February 2010 between the local authority, on the one hand, and both the adopters and the appellant on the other, what was the basis of the judge's dismissal of the entire application?  Its basis was oral evidence briefly given to him by the guardian on that day.  We have the benefit of a transcript of her evidence.  She said that she had met the adopters during the previous week; that they were extremely anxious about the proceedings; that they felt under threat and almost under siege as a result of them; that they considered that the proceedings were preventing them from being able to enjoy being N's parents; that they had contended to her that they had never committed themselves to direct contact with the appellant and that, on their written application for approval as adopters, they had ticked the box marked "no direct contact" with the biological family; that the local authority's independent reviewing officer had told her that, at some stage which she, the guardian, did not or was not able to identify, the adopters had indicated their view that there should be indirect contact with the appellant and that, if it was then felt to be beneficial to N, direct contact might occur at some point in the future when he was older; that they had told the guardian that, had they been informed that there would definitely be direct contact, they would not have proceeded with N's placement with them; that in the guardian's view they were feeling very fragile; that in her view an order for contact imposed upon them against their wishes would further destabilise N's placement with them; and that her recommendation was that the application be dismissed.

18.	The guardian also agreed with the judge that the court might need to look more closely at an application for contact following adoption if the adopters had initially agreed to such contact and then changed their minds; and that in such a situation the court might at least wish to scrutinise the basis of their change of minds.

19.	I turn to the short judgment of the judge.  An unfortunate feature of the transcript is that, in 16 places the transcriber found the tape to be inaudible and that, for reasons which I cannot readily understand, the judge, in approving the transcript, appears to have made no effort to draw upon his recollection in order to supply the words inaudible to the transcriber.  Nor did the judge advert, as I would have done had I been in his shoes, to questions to which the guardian's evidence gave rise.  In the light of the local authority's initial proposals, albeit qualified, for contact following adoption and, for example, of the fact of the meeting with the appellant, could the stance of the adopters against contact always have been as firm as they had recently represented to the guardian?  Was there not at any rate some difference of emphasis between their representations to her and the stance in relation to contact ascribed to them in the Annex A report in the adoption proceedings?

20.	In his judgment the judge expressed himself appropriately concerned for the situation of the appellant.  He said: 

"She has just sadly been the victim of a grave mistake, a misunderstanding, a mismanagement of information, it is impossible to conclude exactly what has gone wrong. It may be that the grandmother herself (inaudible) in this situation, all the distress this has caused."

21.	In the end, however, the judge considered that the welfare of N, which of course was his paramount consideration, required the dismissal of the application. Irrespective of any hardening of attitude on the part of the adopters against contact, whether following their meeting with the appellant or following the issue of her application for an order for contact, the central point in his view was that, according to the guardian, the proceedings were having a highly adverse effect on the adoptive parents and thus on N.  

22.	In my view the judge might also briefly have referred to the established principles applicable to a contested claim for contact following adoption by a member of the biological family.  In Re R (Adoption: Contact) [2005] EWCA Civ 1128, [2006] 1 FLR 373, my Lord, then Wall LJ, stated, at [49]: 

"The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual."

In her energetic submissions Miss Evans suggests that that statement may now not in such absolute terms represent the law; and she cites to us the judgment of this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625,  in particular at [147].  The judgment certainly heralds somewhat greater flexibility in the attitude of the court to contact following adoption in certain cases.  But the problem for Miss Evans is that my Lord's statement in Re R was cited with full approval in the very recent decision of this court in Oxfordshire County Council v X, [2010] EWCA Civ 581, [2010] 2 FCR 355, at [8], and still reflects the general approach.  In my view there was no measurable chance that, were the application to have continued, the result would have been the imposition upon unwilling adopters of any actual order for contact.  

23.	In the above circumstances I consider that the judge was not only entitled but correct not to be distracted by unanswered questions about statements made at various stages by the local authority to the appellant and to the adopters respectively and by them in response, including about the basis for the current stance taken by the adopters; but, rather, to keep his eye trained upon the paramount consideration.

24.	I would dismiss the appeal.  I would also express the hope that, following the end of these inevitably confrontational proceedings, the adopters may, with the good offices of the local authority who presumably will now conduct the review which they had in any event planned to conduct last August, develop a stance in relation to the appellant's direct contact with N in the future which caters for its acknowledged desirability in principle but which, most importantly, protects him from destabilisation, whether directly from any such contact or indirectly from any adverse reaction on their part to the prospect or fact of it.

Lady Justice Arden:  

25.	I agree with my Lord's judgment and the reasons which he has given.  I would just like to add by way of supplement my analysis by reference to the rights of the appellant to have a fair trial of her application.  As is well known in the determination of civil rights, everyone is entitled to a fair hearing under Article 6 of the European Convention on Human Rights.  My Lord began his judgment by referring to the appellant.  She is the former grandmother; she is demonstrably very attached to her grandson and understandably wants to investigate every possibility of having direct contact with him now as well as indirect contact.  On the other hand, I must point out that she properly supports the adoption.  Given the history of this case, I proceed on the basis that this is the sort of situation where it would normally be in the child's best interests to have contact with a maternal grandmother who wishes to maintain direct contact and who is demonstrably attached.  Approaching it in that way enables me to see the appellant's case at its highest, but the legal issue which I must examine is whether the order that was made by HHJ Tyzack and which is now under appeal was in breach of her right to a fair trial and whether the order therefore was not one that should have been made.  

26.	As I see it, at the end of the day there was only one issue before the judge and that was whether the adopters were objecting to direct contact, as was reported to him.  They did not themselves give evidence.  The judge considered in effect that no further evidence on this point would help because the guardian, Ms Jeffrey, was present in court and she had spoken to them.  I can see that, in normal circumstances, the person against whom an important issue of fact is being determined should have the right to test that issue in the way that person chooses, if necessary by cross-examination of witnesses who give oral evidence.  The judge decided, in effect, that there could be a fair trial of the application without this, and the reason he did that was because he had the guardian in court and was able to put questions to her. He also allowed the appellant's counsel to put questions to the guardian.  As I see it, the appellant has no right in law to have the adopters called as witnesses to give evidence in person provided the judge is satisfied that there was a fair trial of the application.  In all the circumstances of this case, with the standing of the guardian and the opportunities given to put questions, and the fact that she had so recently seen the adopters, he was entitled to decide that the evidence put before him enabled there to be a fair trial of the application and the contrary has not really been suggested.

27.	The judge came to the conclusion as follows in paragraph 10 of his judgment: 

“…what I have understood from both Miss Priddis [for the appellant] and Miss Jeffrey is that because of this application and because of this litigation these adoptive parents cannot find it within themselves to commit themselves fully and emotionally to [N]s’ parentage. That means that every day that goes by that this litigation continues that [N] does not have carers who can fully enable themselves to engage and bond with [N]. Therefore this situation is so utterly tragic for [N] that I thought it right to deal with this matter today. I quite understand that Mrs T did not come to Court today expecting a final decision.”

28.	The fact of the matter was, in this case, that there was at the outset very considerable support for the appellant to have direct as well as indirect contact with N, but in May 2010 when the judge was looking at it the position was not the same; the position had changed because by that time the adoption order had been made, and it is clear from the guardian's evidence that the adopters were not willing at that stage to have direct contact and, more importantly, that the prospect of that happening was having an effect on their relationship with N and their ability to take on the very substantial role of being his parents.  The judge was, in my judgment, entitled to take the view that he did that it would serve no purpose and that further evidence would not overcome the difficulty in the way of the appellant's case succeeding, namely that the emotional upset to the adopters as a result of the application would feed through to N and have a real adverse effect on him.

29.	Nothing has been said on this appeal to change that basis on which the judge proceeded.  The result is undoubtedly very hard; it was clearly the right result for N on the basis of the information before the judge; his interests had to be paramount, and it was a result in which the judge was entitled to come.

30.	For these additional reasons, I agree with my Lord, Wilson LJ, in the very full judgment that he has given, in particular with his final expression of hope.

Sir Nicholas Wall P:  

31.	I also agree that this appeal should be dismissed.  I have very great sympathy with the parties in the case.  Despite this, it seems to me that the case focuses on two very specific questions, namely 1) was the judge entitled to take the shortcut which he took on 18 May 2010; and, secondly, if the answer to the first question is yes, was the judge's exercise of his discretion to dismiss the applicant's application then and there the right decision?  The answer to the first question seems to me clear, and indeed is effectively conceded by Miss Evans on the grandmother's behalf.  Provided he acted fairly the judge was plainly entitled to take the course that he did. Any doubt on the point seems to me to be dispelled by the judgment of Butler-Sloss LJ, as she then was, in Re B (Application for Contact) [1991] 2 FLR at page 1.  The judge heard the guardian, cross-examination of the guardian and full argument from the grandmother’s counsel; the hearing before him, for the reasons Arden LJ has given, cannot in any sense be said to be unfair.  As to the second question, Wilson LJ has covered the ground very fully, and I agree with him for all the reasons he has advanced that the judge was entitled to act as he did.   Like Wilson LJ and my Lady, I hope that, with the proceedings now out of the way, the adopters may feel sufficiently relaxed and reassured to their status to revisit the contact issue and, in the best interests of the child, to enter into a dialogue with the grandmother so at the very least misunderstandings can be eliminated.

32.	The appeal therefore will be dismissed. 

Order:  Appeal dismissed