Grandmother wins appeal over whether change of circumstances meant she could apply for revocation of placement order

In JL (Leave to Apply to Revoke Placement Order) [2020] EWCA Civ 1253 the grandson, J, was the youngest of four children of Mrs B’s daughter, M.

The local authority had been involved with M and her children since 2012 as a result of concerns about domestic abuse between her and her partners.

In August 2018 when M was five months' pregnant with J, the local authority started care proceedings in respect of the three older children who, in the course of the proceedings were made subject of interim care orders.

Following J's birth in December 2018 he too was made the subject of an interim care order and placed with foster carers with whom he remains.

Thereafter a number of assessments were carried out on family members and friends to establish whether any of them could care for the children. In June 2019, the eldest child was placed with his paternal grandfather under a special guardianship order (SGO).

Mrs B put herself forward as a carer for the two middle children. An assessment by the local authority recommended that the children be placed in her care and in August 2019 final care orders were made in respect of those two boys on the basis of a care plan that they should live with Mrs B. They remain with her today.

Several people were assessed as possible carers for J, including both of his parents, an aunt, another aunt and uncle and a family friend. All assessments were negative.

At that stage Mrs B had not put herself forward as a potential carer for J. It was her case that she did not do so because her accommodation was only a two-bedroom flat and she did not have the facilities to accommodate J in addition to his two older brothers.

At the final hearing of the care proceedings Recorder Bradbury dismissed an application by a family friend for an SGO and made care and placement orders in accordance with the local authority’s care plan.

On 30 April 2020 Mrs B filed an application for leave to apply to revoke the placement order. In her application she stated that she wanted to look after J, adding that she had hoped that J could live with his mother or another person put forward by the mother (meaning presumably Ms S) but that had not been approved by the court.

In her statement in support of her application, Mrs B described how she had now moved from her previous accommodation, which she described as a small two-bedroom flat, to another property, a rented three-bedroom semi-detached house with a garden, directly opposite the older boys' school. Mrs B described the property as much larger so that the children had a lot more room to play and study.

Mrs B’s applications were listed for hearing on 6 July 2020. They were opposed by the local authority but supported by the children’s guardian. In her report the guardian said that it was evident that Mrs B's circumstances had changed considerably as a result of the change of accommodation.

Although she had supported adoption at the time of the care proceedings, the guardian was clear that she no longer favoured that course. She concluded that the grandmother had demonstrated significant changes and should be considered as a carer for J.

However, His Honour Judge Bromilow dismissed Mrs B’s applications. He observed that Mrs B had been "caring admirably" for the two boys and described them as "thriving" in her care. He concluded, however, that there had been no change in circumstances since the making of the placement order. He added that, if he was wrong in that conclusion, he was "entirely satisfied that any exercise of discretion must lead to the application for permission being refused because of delay, lack of prospects of success and holistic welfare considerations".

HHJ Bromilow also said no details of prospective assessments of Mrs B’s capacity to care for J had been produced, should she be granted leave to apply for an SGO. He also concluded that given the likely delays in obtaining an assessment, exacerbated by the pandemic, any revocation hearing would not be determined until the early months of 2021.

Allowing Mrs B’s appeal, Lord Justice Baker, with whom Lord Justice Arnold and Lord Justice Underhill agreed, said: “With respect to the judge whose great experience in children cases is well-known, I have reached the clear conclusion that the decision was wrong and that the appeal must be allowed. In my judgment, this is a clear example of a case where a change in circumstances has occurred of a degree sufficient to open the door to an application to revoke the placement order.”

The Court of Appeal judge said Mrs B’s move to significantly larger and better accommodation meant she was now able to offer J a home.

“That opens up the prospect of J being brought up within his family and in particular with his brothers. It is likely that his current relationship with them and with Mrs B is not close, particularly given the restrictions on contact that have occurred in the pandemic. Looking ahead however, there is the potential for J to be brought up in a close relationship with his siblings and with his grandmother and indeed in a relationship with his mother and other family members,” he said.

Lord Justice Baker added: “The law requires children where possible to be brought up in their natural families. Adoption is a measure of last resort. Mrs B is by all accounts caring for the two boys very well, notwithstanding their difficulties in respect of which she has understandably sought support from the local authority. In those circumstances, it must be in J's interests at least to explore the possibility of being placed in her care.”

The Court of Appeal judge said the local authority and HHJ Bromilow had been right to be concerned about the impact of further delay. However, he said the disadvantages of delay in this case were "manifestly outweighed" by the potential advantage of securing for J a placement within his family and the prospect of a close and lifelong relationship with his brothers.

Lord Justice Baker said the content of the guardian’s report had addressed the key issues and HHJ Bromilow was wrong to disregard it.

He therefore allowed the appeal and granted Mrs B leave to apply to revoke the placement order and to apply for an SGO.

The Court of Appeal was also addressed about the scope of a possible further assessment. Lord Justice Baker said he did not think it was for the Court of Appeal to decide that matter, “although for my part I would consider that a comprehensive assessment is unlikely to be necessary, given the very full assessments of Mrs B that have been carried out prior to the placement of the two boys in her care and subsequently her approval as a kinship foster carer.

“What is probably needed here is a short further assessment focused on the question identified by the guardian, namely whether Mrs B can care for J alongside the other two boys, but I am content to leave details of an appropriate assessment to be determined by the judge conducting the case management hearing.”