The maternal grandmother sought permission to intervene in care proceedings to put herself forward as the carer of her young grandchild. The local authority and the guardian objected to the intervention. The judge had refused it. The grandmother appealed.
Held: The appeal was allowed. When considering such an application for leave to make an application for a residence order, the statutory checklist must be given its proper respect. It was not appropriate to substitute the test ‘has the applicant satisfied the court that he or she has a good arguable case’ for the test set out by Parliament in s. 10(9) of the 1989 Act. Thorpe LJ: ‘The statutory language is transparent. Nowhere does it import any obligation on the judge to carry out independently a review of future prospects.’ and ‘I would observe that all that is said directly in relation to the discharge of the judicial task under s. 34(3) and not directly in relation to the discharge of the judicial task under s. 10(9). In my experience, trial judges have interpreted the decision in Re M (Care: Contact: Grandmother’s Application for Leave) as requiring them, in the determination of applications under s. 10(9) to apply the three-fold test formulated by Ward LJ which has the laudable purpose of excluding from the litigation exercise applications which are plainly hopeless.
I am particularly anxious at the development of a practice that seems to substitute the test, ‘has the applicant satisfied the court that he or she has a good arguable case’ for the test that Parliament applied in s. 10(9). That anxiety is heightened in modern times where applicants under s. 10(9) manifestly enjoy Art 6 rights to a fair trial and, in the nature of things, are also likely to enjoy Art 8 rights.’
and ‘The whole purpose of the decision in Re J was to draw the attention of trial judges to the need to adopt a careful review of the section 10(9) criteria and not to replace those tests simply with a broad evaluation of the applicant’s future prospects of success.’
Judges:
Thorpe LJ, Ferris J
Citations:
[2003] EWCA Civ 369
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – In re R (a Child) (Adoption: Contact) CA 18-Aug-2005
The child was placed for adoption. In the period before adoption, contact with her family continued. The prospective adopters said that this was unsettling.
Held: It would be unusual to make an order for contact against the wishes of the . .
Cited – In re R (A Child) CA 18-Aug-2005
An application was made for continued contact after a proposed adoption. The mother was young and had herself lost her family and taken into care when very young.
Held: Her request for permission to appeal failed. Wall LJ ‘I am reasonably . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights
Updated: 11 June 2022; Ref: scu.230064