Please don’t confuse your ‘usual practice’ with my actual reading of the actual rules

Alright you slackers, it’s time for some law. Mainly because I have had a bunch of browser windows open with ‘new’ judgments open, ready for me to write them up and I can’t tick them off my to do list until I do. I could just close the browser windows but that would be cheating. So, here is judgment number 1.

In Re T (Adoption Hearing: Involvement of Applicants) [2024] EWCA Civ 189 the Court of Appeal corrected an erroneous practice in Cornwall relating to adoption hearings. The appeal judges thought (and I agree – for what that’s worth) that this was probably not confined to Cornwall, much as other creative interpretations of other procedural requirements have turned out to be widespread in other cases (think the Somerset cases about adoption regulations and medicals a few years ago – very much not confined to Somerset, and in fact there were variations on the theme in a number of counties which were revealed and corrected only when others got wind of the Somerset case).

Here, the issue was around the attendance of adoption applicants (the wannabe adoptive parents) at adoption hearings. 99 times out of 100 they don’t want to come. But they do sometimes want and need to attend, most often in my experience where something has gone awry with the application itself – I’ve been involved in about four in recent years. Anyway, in straightforward adoption applications there is almost never a need to have adopters at court, and they usually don’t want to come, preferring instead to be kept up to date via the local authority and to come to the symbolic celebration once the order has been made final. Given that adopters attending a hearing which parents may also attend brings with it certain logistical and emotional challenges, usually everyone is quite happy for that to be the position, including the judge and court staff. It is of course super important in most adoption cases for the parties not to bump into one another and for the identity of the adopters to be kept strictly confidential. Where adopters do attend, this usually but not always involves screens or video links and pseudonyms.

This case unpicks the problems arising from the ‘what usually happens’ becoming transmogrified into a fixed and rigid practice, which didn’t actually comply with the rules. It came to light when a pesky adopter decided he did want to attend (partly so he could later tell the child he had been there) and was told by court staff that he couldn’t. He persisted and was told again that he couldn’t come – this time by the Designated Family Judge who said ‘The prospective adopters are not permitted to attend the adoption hearing. This is usual practice’, and later that his reason for wishing to attend was no ‘a valid one’, and that was that.

When the hearing was adjourned he wasn’t given notice of the next hearing or sent the order. When he enquired of the local authority legal department what had led to the adjournment, he was told that the local authority had been represented by a solicitor, who was not a member of the authority’s legal department, and who had made no note of the hearing. That is pretty poor – the court of appeal describe it as a ‘serious failure’. The local authority were entitled to expect a note and they should have demanded it from the solicitor they instructed.

As a result of this serious failure, poor old Mr Adopter then had to apply for a transcript. Guess what? Court said no. It sounds as if Mr Adopter gave up trying to attend the hearings, as the adoption did eventually go through in his absence. But he did appeal the refusal of a transcript.

The judgment on appeal makes clear that pretty much everything the adopter was told abut what he was not allowed to do / not entitled to was wrong. He was a party – in fact the applicant. He didn’t have to attend the hearing – as long as the court excused him (Which for reasons explained above the court usually does) – but he was entitled to do so if he wanted, which he did. All of this is set out in FPR 14 (all detailed in the judgment). It was  ‘no surprise [to the Court of Appeal bearing in mind Article 6] that the statute and the court rules do not afford any power to the court to prohibit the applicant in adoption proceedings from attending a hearing of their adoption application.’ The adopter should have had notice and should have been permitted to attend. Appropriate arrangements should have been made for him to do so, for example the court suggested he could have attended remotely with camera and mic off.

Through this appeal the Court of Appeal spotted a glitch in the associated guidance (President’s Guidance: Listing Final Hearings in Adoption Cases, issued by Sir James Munby on 10 April 2018) which will now be corrected:

‘at paragraph 19, that when a ‘need not attend’ direction is made under 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. Insofar 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.’

Transcripts are dealt with elsewhere in the rules (FPR 27.9) – a party is entitled to a transcript. The court can, if justified, direct that this general rule should be disapplied and refuse a transcript, and the Court of Appeal helpfully summarises why:

‘The difference between the two provisions might be explained by the need for the Family Court to retain some control over the provision of transcripts in part because most of its proceedings are held in private and, in part, regrettably because of the nature of the content of transcripts in some cases involving abuse.’

Here the adopter didn’t need permission to obtain a transcript. No reason was given for the judges’ decision that he shouldn’t be provided with a transcript. Thirdly, the order of the adjourned hearing was no substitute for a transcript because it didn’t make clear why the hearing was adjourned – given the lack of any attendance note a transcript was the only way of finding out. Finally, given that the court had (wrongly) refused to allow the adopter to attend a hearing in his own application the least it could do was facilitate his request for a transcript. That’s my paraphrase – the court’s wording is slightly less pointed:

‘Further, it must a fortiori be the case 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.’

Paragraph 35 sums up the potentially wider cultural context

‘If the professional approach, by local authorities, the judiciary and court staff, has developed to the point where prospective adopters are being actively discouraged from attending hearings in their own adoption application, that is a matter of concern. It is also concerning that, as we were told, some courts, as in this case, treat the local authority as the de facto applicant, with the result that, as this appellant experienced, the court does not seek to engage with the applicant by giving notice of hearings or serving copies of orders. Rare though it may currently be, to my mind, this appellant’s wish to be present (physically or remotely) during the hearings is an entirely understandable one. In terms of ‘life-story’ information, attendance at these court hearings may be the only first-hand experience an adopter will have of the birth parents. Also, the importance that this applicant attached to being able to say to his child in years to come that he had been to the court hearings is easy to understand. 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. In addition, I intend to invite Mrs Justice Judd, as chair of the President’s Public Law Working Group, to conduct a review of the 2018 President’s Guidance.’

Until that guidance is amended, parties / legal reps can refer court staff / judges to paragraph 36 of the judgment in this case for confirmation that the relevant paragraphs of it should not be followed.

Anyway, this judgment is, I think, a useful reminder of the dangers of slipping from ‘usual practice’ into something everyone believes must more or less represent what is in the rules because we’ve always done it this way and someone must have got it from somewhere, right? It is a reminder of why it is important to check the actual rules – and for lawyers / parties to refer both court staff and judges to the applicable provision, in case they have confused what they usually do with the actual rules and requirements. The common feature of these ‘oops, we didn’t actually check – we just always do it this way’ c*ck ups, is how surprisingly far from mandatory requirements and basic fairness they can often be – the judgments make painful reading because it is clear that what should have been obvious has been collectively missed, and that the simple if tedious task of checking the rules / regulations that are designed to keep things orderly, efficient and just would have stopped the error before it was even made. Never ever assume someone else has read the rules. Often they haven’t. Mr adopter – who was an impressive litigant in person, had read the rules. Well done him.

Right, that’s one browser window down, and quite a few to go…

2 thoughts on “Please don’t confuse your ‘usual practice’ with my actual reading of the actual rules

  1. In the same category as “oops – did no-one check”, I had a bit of a run-in with the court regarding whether MIAMs go out of date. My clients were often confidently told (and still are) that a MIAM only lasts for four months. This is not true, but both online Children Act and Financial Remedy online portals prevented an application going further if your MIAM was over 4 months old. Having dug out the actual law, I sent my points into the ether. The Children Act portal was quickly updated but it took some 18 months to get the Financial Remedy application process resolved. I tried the Family Mediation Counsel, but was told it was “common practice” that MIAMs expired and it wasn’t going to change the guidance to its members or it’s website. Brick wall duly met, I now just provide my own clients with the information to challenge mediators when they ask for more £££ for another MIAM certificate because theirs has “expired”.

    • I must admit I had 4 months in my head – where does it come from? And where is the correct rule to be found? (I’ll probably go and look this up later but am publishing your comment just as I am about to hit the sack)

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