A child had been placed with prospective adopters by the local authority pursuant to section 22 of the Adoption and Children Act 2002. The prospective adopters subsequently issued their application to adopt under section 49 of the 2002 Act. The local Family Court issued an order setting down the application for a hearing and indicating that it could be used as the final hearing. The prospective adopters were not served with a copy of that order, which the court staff informed them was usual practice, and on requesting confirmation that they were permitted to attend the hearing they were informed that “prospective adopters [were] not permitted to attend the adoption hearing” and that that, again, was usual practice. The prospective adopters’ repeated request to attend the hearing, advanced through solicitors and providing reasons, was also denied. At the hearing the adoption application was adjourned and no copy of the order made was provided to the prospective adopters. The prospective adopters’ formal request for a transcript of the hearing was then also refused. Although a final adoption order was made at a subsequent hearing, the prospective adopters proceeded with their appeal against the decisions of the judge to refuse to permit them to attend the earlier hearing of their application and to provide a transcript.
On the appeal—
Held, appeal allowed. The right to a fair trial of an individual who had made an application to a court self-evidently included the right to attend any court hearing held in the court proceedings and, while a court retained a degree of discretion and control over its own processes, for the court to prohibit an applicant from attending, or otherwise observing or engaging in, a hearing of his own application was an exceptional course. In the present context, the Adoption and Children Act 2002 and the rules under Part 14 of the Family Procedure Rules 2010 did not afford any power to the court to prohibit an applicant in adoption proceedings from attending a hearing of their adoption application and it was concerning that (i) the professional approach by local authorities, the judiciary and court staff had developed to the point where prospective adopters were being actively discouraged from attending hearings in their own adoption application and (ii) some courts, as in the present case, treated the local authority as the de facto applicant with the result that the court did not seek to engage with the true applicant by giving notice of hearings or serving copies of orders. Where an applicant wished to attend the hearing of their adoption application the court was obliged to make appropriate arrangements for them to do so. A review of the current guidance was to be conducted and each local adoption centre was urged to review its current practice. Further, although within family proceedings the court retained a discretion to “order otherwise” when a party requested a transcript of a hearing, that discretion was to be exercised judicially and on reasonable grounds. Where the court had prevented a party from attending a hearing and that party requested a transcript of the hearing, that request ought to be granted unless there were clear and specific reasons for refusal. It followed that the approach of the Family Court in the present case was erroneous in numerous ways (paras 25, 27, 28, 30, 32, 35, 37).
Consideration of rules and guidance applicable to attendance at an adoption hearing (paras 14–17, 26–27).
Summary of specific steps to be taken by the court on receipt of a serial number adoption application with respect to communicating and engaging with the applicant (para 36).
Per curiam. The statement made in the President’s Guidance: Listing Final Hearings in Adoption Cases (2018), at paragraph 19, indicating that when a “need not attend” direction is made under FPR r 14.16(7) “any notice of hearing issued by the court must state clearly that the applicant or the child, as the case may be, should not attend”, is not supported by any statutory provision and requires amendment. In so far as the guidance suggests that the court has a general power to prohibit an adoption applicant from attending the hearing of their adoption application, it is in error and made without authority (paras 26, 36).
The prospective adopters in person.
Sally Daulton (instructed by Cornwall Council Legal Service) for the local authority.
The first and second respondents did not appear and were not represented.