Adoption applicant wins appeal after judge refused to allow them to attend hearing

The Court of Appeal has allowed an appeal against a judge’s decision to refuse permission for prospective adopters to attend a final adoption hearing either in person or remotely, and to refuse their request for a transcript of the hearing.

In T (A Child) (Adoption Hearing: Involvement of Applicants), Re [2024] EWCA Civ 189, Sir Andrew McFarlane, the President of the Family Division, concluded: “Where an applicant wishes to attend the hearing of their adoption application, the court must make appropriate arrangements for them to do so. […] Whilst it might be the ‘usual practice’ that adopters do not normally attend, the court does not have any general power to prohibit them from doing so”.

In early 2023, a child then aged 7 years was placed with prospective adopters [‘the As’] by Cornwall Council. In June 2023 the adopters issued an application to adopt the child.

The Family Court in Truro issued an order setting the application down for a hearing on 31 August, which, it was indicated, might be the final hearing.

The order giving notice of the hearing was not sent to the As, who were told of the date by their social worker in an email on 26 July, said the judge.

On behalf of both applicants, Mr A telephoned the court saying that he had not received a copy of the order. He asked if he could attend the hearing and was told that that was a “matter for the judge”.

On 8 August, in an email the court office recorded that the matter had been referred to the Designated Family Judge, HHJ Richards, who had replied: “The prospective adopters are not permitted to attend the adoption hearing. This is usual practice.”

On 31 August, at a hearing before HHJ Richards, the A’s adoption application was adjourned.

The judge noted that Mr and Mrs A received “no communication” from the court following the hearing of their application, and were told nothing of what had taken place until, on 6 September, an email from the social worker reported that the adoption order had not been granted because the judge “had not been satisfied that the parents had been served with the court papers and been given opportunity to oppose”.

On 6 September, Mr A filed a formal request seeking a transcript of the 31 August hearing.

The judge said that on 14 September, the court office responded to the transcript request as follows: “As this matter was held in private it is necessary for the judge to give his permission for the transcript to be released. The file and the application have been referred to HHJ Richards who on this occasion has refused the application but has stated that you may have a copy of the order made on 31 August which should provide all the information needed.”

Mr A did not renew his application to attend court hearings and a final adoption order was made on 29 September 2023 in favour of Mr and Mrs A.

Notice of appeal against the refusal to permit a transcript was filed on 13 October 2023 and permission to appeal was granted by King LJ on 20 December.

The judge said: “King LJ’s order recorded that the judge’s refusal to permit Mr A to attend the hearing of his application, either in person or remotely, would also found a proper ground of appeal and the appellants were invited to amend their grounds of appeal to that effect.”

The three grounds of appeal were submitted as follows:

1. the judge erred in law in holding that his permission was required to provide the transcript to the appellants given that they were parties to the proceedings.
2. alternatively, if the judge did have discretion to refuse permission, he should have allowed the transcript to be released.
3. the judge erred in refusing the appellants permission to attend the final hearing either in person or remotely.

Dealing first with ground 3, Sir Andrew McFarlane said: “The right of an individual who has made an application to a court to a fair trial must, self-evidently, include the right to attend any court hearing held in the court proceedings.

“Whilst a court will retain 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 must be an exceptional course.”

He noted that a “difficulty” arises in a ‘serial number case’, where there is a requirement for the court to maintain confidentiality around the identity of the applicant, and where a parent or another member of the child’s birth family are also due to attend the court hearing.

However, he said: “In such cases practical arrangements should be made to allow the applicant to engage in the court process anonymously. […] Where courts have access to an online system, it will normally be possible for applicants to observe a hearing remotely over a video-link with their microphone and camera switched off.”

Turning to grounds 1 and 2, the judge concluded that the court’s response to the applicant’s application for a transcript of the hearing of 31 August was in “error” in three respects:

1. Firstly, whilst it is correct that the hearing, like the vast majority of family proceedings, was heard in private, that did not reverse the position established under the rules so as to require the applicant to obtain judicial permission for provision of a transcript.
2. Secondly, no reason is recorded for the judicial decision to direct that there should be no transcript.
3. Thirdly, the statement that the court order would provide all the information needed was in error in that the order did not record who had attended the hearing or why the application had been adjourned. Matters were compounded in that the court did not apparently send a copy of the order to the applicants, who did not see a copy of it until January 2024.

The Family President added that where 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”.

He concluded that the court in Truro acted in error by:

1. Failing to give the applicants notice of the 31 August hearing;
2. Stating that the adopters were ‘not permitted’ to attend the hearing. Whilst it might be the ‘usual practice’ that adopters do not normally attend, the court does not have any general power to prohibit them from doing so;
3. Replying to the applicant’s solicitors letter on 21 August on the basis that it was for the applicant to establish a ‘valid reason’ to attend the hearing of their application;
4. Whilst correctly noting that the birth parent(s) may attend the hearing, the court failed to refer in any manner to the applicant’s suggestion that they could join the hearing remotely;
5. Failing to send a copy of the order of 31 August to the applicants;
6. Failing to send the applicants notice of the 29 September hearing;
7. Failing to provide the applicant with a transcript of the hearing of 31 August, without good reason.

The Family President allowed Mr and Mrs A’s appeal on all three grounds.

Finally, Sir Andrew McFarlane remarked: “Given the life-changing nature of the proceedings for all involved, one might ask, rhetorically, why any adopter would not want to attend the hearings of their own application, provided suitable and safe arrangements are made to protect anonymity. I would urge each local adoption centre to review its current practice.”

He added: “As I have observed, paragraph 19 of the current President’s Guidance is in error in assuming that the court has a general power to direct that an applicant should not attend a hearing. That paragraph requires amendment.

“Paragraph 5 also requires amendment to include any applicant in addition to the respondents in the requirement for the court to give them notice of any hearing and informing them of progress. More generally, the court’s ability to accommodate remote online anonymous attendance has developed out of all recognition in the period since the 2018 guidance was promulgated.”

Lord Justice Lewison and Lady Justice King agreed.

Lottie Winson