Grandmother wins appeal over refusal of leave to apply to revoke placement order

In G & H (Leave To Revoke Placement Order) [2023] EWCA Civ 768, Lord Justice Baker said the appeal raised two issues relating to such applications: (1) whether the children are automatic parties to an application for leave, and (2) whether a change of mind by a family member about putting themselves forward as a potential carer for the children can, without more, amount to a change of circumstances.

Outlining the relevant background, Lord Justice Baker said that in April 2022, the local authority issued care proceedings in respect of the grandchildren of the appellant, G, aged 3, and H, aged 2.

In May, the children moved into foster care under interim care orders.

During the care proceedings, the grandmother was not assessed as a kinship carer for G and H. On this, Lord Justice Baker said: “There is a dispute between the grandmother and the local authority as to why. Two conversations took place between the grandmother and a social worker. The grandmother's case is that after those conversations she was expecting to be assessed as a carer for the girls. The local authority's case is that she did not put herself forward as a carer.”

On 7 November 2022, the care proceedings concluded with the making of care and placement orders.

A few days later, the grandmother asked the local authority whether they were going to assess her. On 17 November, the local authority responded that they were not intending to do so.

On 21 December, the grandmother as a litigant in person filed an application for the discharge of the care orders and for leave to apply to revoke the placement orders.

On 10 January 2023, HH Judge Williscroft made a directions order listing a hearing for the leave application and making directions for the local authority to file a statement in reply to the application. The order included the following paragraph:

"At this time it is not necessary for the children to be party to proceedings or to have a Cafcass Guardian until the application for leave (or permission) has been determined."

At the hearing on 19 January 2023, the judge gave a short ex tempore judgment. In this, HH Judge Williscroft said:

“The court is not in the same position as if we were mid-care proceedings in which a family member comes forward and says, "I need a thorough assessment because I'm in a position to care". We are in a position after care proceedings have ended and a plan for adoption has been supported by the court in which her wishes were not before the court; and, frankly, whatever was said by social workers, whatever was said by her son, she is the adult here who had the responsibility to make that absolutely clear.

“Is the reality not more likely that those concerns that she had right back in May, realistic ones because she had a lot of responsibility that she is obviously exercising very well, meant that there was not clarity until after the Adoption Order was made? I am afraid there is a point at which it is too late because her circumstances have not changed in any way over these last months and her circumstances would have to have changed in order for the court to consider her application.”

The judge concluded by turning down the grandmother’s application for leave to apply to revoke the placement orders. She added: “The court has not formally issued the discharge of the Care Order application but effectively I will now have to dismiss it as a result."

Lord Justice Baker said that on 13 February 2023, the grandmother, at that point acting in person, filed a notice of appeal against the judge's orders.

The two grounds of appeal put forward were:

1. The hearing was procedurally incorrect because the children's guardian ought to have been joined as a respondent and
2. The decision to refuse leave was wrong

On 19 April 2023, Lord Justice Baker granted permission to appeal against the dismissal of the application and for leave to apply to revoke the placement orders but refused permission to appeal against the dismissal of the application for discharge of the care orders.

Outlining submissions from the parties on Ground 1, Lord Justice Baker said: “Under Ground one, it was argued that "the hearing was procedurally incorrect because the children's guardian ought to have been joined as a respondent". […] There was an obvious need for the children's voices to be heard, given the grave consequences of an adoption order, and the judge's decision suffered from the absence of the independent analysis of the children's welfare which the guardian would have provided.”

On behalf of the grandmother, counsel cited the decision of the Court of Appeal in Re JL (A Child) (Leave to Apply to Revoke Placement Order) [2020] EWCA Civ 1253, in which the guardian's analysis had been available, and the earlier decision of this Court in Re T (Children) [2014] EWCA Civ 1369, in which the Court had expressed regret at the fact that the children had not been represented on an appeal against the refusal of an application for leave to revoke a placement order.

On behalf of the local authority, counsel submitted that the child is not a party to an application for leave to revoke a placement order.

He submitted that the judge would have been aware of the gravity of the plan for adoption. At the leave stage it was a matter for the judge's discretion as to whether a guardian should be appointed. Re JL was an example where the welfare considerations were such that an analysis by the guardian was plainly required at the leave stage, counsel said.

Analysing ground 1, Lord Justice Baker said: “While many applications for leave to apply to revoke a placement order have no prospect of success, some do. In those circumstances, the guardian will plainly have a role in assisting the court to come to a decision whether to grant leave, particularly when addressing the second stage of the test, if the court finds that there has been a change of circumstances.

“The local authority is likely to have a position on the application, having obtained the placement order. The children's guardian adds essential balance to the picture presented to the court.”

Concluding on ground 1, he said: “I have considerable sympathy for the judge in the present case. The position under the rules was unclear and it has taken a lot of thought and time (which is simply not available to a judge sitting in the family court) to arrive at the interpretation set out above. Given the legal analysis set out above, however, I conclude that the judge was wrong to give a direction that it was ‘not necessary for the children to be party to proceedings or to have a Cafcass Guardian until the application for leave (or permission) has been determined’.

“Under the rules, the child was a party and a children's guardian had to be appointed. It might have been open to the judge to restrict the activities of the guardian until the decision had been taken whether leave should be granted. But the judge did not approach the issue in that way.”

Outlining submissions from the parties on Ground 2, Lord Justice Baker said that it was argued that the judge “erred in concluding that there had not been a change in circumstances since the making of the placement orders.”

He said it was argued that when the court considered the final care plans for the children, [the grandmother] did not feature as a realistic option for analysis. That she was now able to put herself forward to be considered as such “amounted to a change in circumstances sufficient to open the door to leave being granted”.

On behalf of the local authority, counsel submitted that, on the grandmother's case, she had at all times wanted to be assessed and the judge was therefore right to conclude that there had been no change in circumstances.

It was the local authority's case that the grandmother had initially not wanted to be assessed but changed her mind after the placement order was made. Counsel submitted that this was insufficient to amount to a change in circumstances.

Discussing Ground 2, Lord Justice Baker said: “Even if the court is persuaded that a change of mind is a change of circumstances of a nature and degree sufficient to open the door to the exercise of its discretion to grant leave, the court will only grant leave if, at the second stage, it is satisfied that in all the circumstances leave should be granted. Here the child's welfare, although not paramount, is relevant.”

He added: “In my judgment, whether the grandmother is right in saying that she was expecting to be assessed throughout the proceedings or the local authority correct in saying that she changed her mind after the placement order is made, the fact that she is now actively putting herself forward as a potential carer for the child is potentially a change in circumstances sufficient to open the door to the grant of leave, if the second stage of the test is satisfied.

“Whether it is will depend on an assessment of the circumstances which led to the placement order being made. The judge, however, did not address the issue in this way. Her reason for refusing leave was expressed in these terms:

"there is a point at which it is too late because her circumstances have not changed in any way over these last months and her circumstances would have to have changed in order for the court to consider her application."

Lord Justice Baker noted: “With respect to the judge, this was not the right approach. The question was not whether the grandmother's circumstances had changed but whether there had been a sufficient change in the circumstances which led to the making of the placement order.”

Concluding on Ground 2, Lord Justice Baker said: “In some cases when giving judgment refusing applications for leave to apply to revoke a placement order, the judge having concluded that there has not been a change of circumstances will go on to consider whether the second stage would have been satisfied if a change of circumstances had been found. In this case, however, the judge did not consider the second stage at all.”

He allowed the appeal on both grounds and set aside the order refusing leave.

Lord Justice Baker directed that the grandmother's application for leave to revoke the placement order be reheard by another judge, to be allocated by the Family Division Liaison Judge. Further, that the child must be joined and a guardian appointed.

The Court of Appeal judge said: “Although it will be a matter for the judge to whom the case is re-allocated to give directions, I would anticipate that in this case it will be appropriate for a guardian to play an active role in the application. As the guardian has opposed this appeal, consideration should be given whether, in the interests of fairness, a new guardian should be appointed for the rehearing.”

Lord Justice Lewis and Lady Justice King agreed, adding that they also agree it is “appropriate to invite the Family Procedure Rule Committee to consider whether it wishes to make amendments to rule 16.4(1) of the Family Procedure Rules” [Rule 16.4(1); "Appointment of a children's guardian in proceedings not being specified proceedings or proceedings to which Part 14 applies"].

Lottie Winson