Applications to discharge special guardianship orders

Fran Massarella examines a Court of Appeal case which concerned the test for granting leave to apply to discharge a special guardianship order and the construction of s.14D(5) of the Children Act 1989.

The proceedings in Re M (Special Guardianship Order: Leave to Apply to Discharge) [2021] EWCA Civ 442 (Lord Justice Peter Jackson, Lord Justice Baker & Lady Justice Elisabeth Laing) concerned C, a boy aged 9. The father was never present, and the mother had serious mental health problems which resulted in C moving to live with his maternal grandmother and her partner (“the grandparents”) when he was aged 4 ½. The local authority concluded that the mother could meet C’s needs when she was well, but not when she was ill. A special guardianship order (“SGO”) was subsequently made in favour of the grandparents without opposition. Directions were given detailing contact arrangements between C and the mother.

In February 2020, the mother applied for leave to make an application to discharge the SGO. She made a further application for a child-arrangements order in July 2020 for C to spend time with her while the proceedings continued. The mother submitted that her mental health had greatly improved. However, the grandparents argued that it would not be in C’s interests to have a change of care. The local authority expressed concerns over the special guardianship order being revoked in that it could impact upon C’s stability.

The previous Judge concluded that even though there had been changes in the mother’s circumstances, it was not in C’s welfare interests to reopen proceedings. Further, due to multiple concerns about the mother’s ability to care for C and the risk of C’s life becoming unstable, the Judge considered that it would be very difficult for the mother’s application to succeed. Therefore, the application for leave to apply to discharge the SGO was dismissed, with the Judge citing her paramount consideration in this decision being C’s welfare. In relation to the contact application, the Judge also concluded that it was not in C’s welfare interests to have a contact order as it could cause more harm and tension between the adults and for C to become confused. Therefore, this application was dismissed.

At [14], the Court outlined that the legal status of special guardianship was created to offer ‘greater security for children than long-term fostering but without the absolute legal severance from the birth family that stems from adoption.’

Section 14D of the Children Act 1989 concerns the manner in which SGOs can be varied or discharged. A parent seeking to discharge an SGO requires leave of the court which can only be given if the court is satisfied that there has been a significant change in circumstances. In regards to what a ‘significant change of circumstances’ meant, the Court cited the case of Re G (Special Guardianship Order) [2010] EWCA Civ 300, in which it was held that the two-stage test developed in the case of M v Warwickshire County Council [2007] EWCA Civ 1084 applied, despite that test concerning applications for leave to revoke a placement order.

The first limb is that there must have been a significant change in circumstances. At [28] the Court considered that significant simply means ‘considerable, noteworthy or important’. The second limb is that there must be a real prospect of success. It was concluded that the degree of the change of circumstances is interlinked with this limb and the greater the prospects of success, the ‘more cogent the welfare arguments must be if leave is refused.’ However, the welfare of the child is not the paramount consideration of the second limb, as it is considered later, in deciding whether to allow the application.

In relation to the mother’s application for parental contact, the Court outlined that when an SGO is in effect, a parent does not need leave to apply for such an order. The case of Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54 was cited, where it was submitted by the foster mother seeking an adoption order, that one of her reasons for preferring adoption was because it gave protection from applications being made by the child’s mother. The present Court concluded at [38] that ‘there is nothing objectionable in principle about a contact application issued in respect of a child subject to an SGO.’

It was submitted by the mother, within 9 grounds of appeal, that the bar for special guardianship orders to be revoked was set too high as it made it a near impossible. In particular, she argued that the Judge erred in treating C’s welfare as paramount, the Judge had no basis for saying that if permission was given there would be another set of care proceedings and a risk of C being put in foster care. She further argued that the Judge set the bar far too high, and that the Judge was wrong to dismiss the application for contact without taking into account that contact had not taken place in accordance with the working agreement.

On behalf of the grandparents, it was submitted that the Judge was entitled to refuse leave and her decision was not one which the court should interfere with. Further, it was argued that the mother’s progress had not been substantial enough.

The Court concluded that the appeal should succeed for the following reasons:

1. The Judge’s test for change in circumstances was too high as she held that a guarantee was required that all the issues leading to the SGO had been resolved;
2. The Judge’s conclusion flowed directly from the test she had set;
3. The Judge was not in a position to reach the conclusion she did about the mother’s mental health, because a deeper assessment was required;
4. The judge did not make any real assessment of the mother’s prospects of success;
5. The comments regarding the risk of foster care were inappropriate;
6. The Judge favoured the grandparents’ view of how the working agreement of contact was working without having enough evidence to make this conclusion;
7. The Judge did not look at welfare correctly, as the SGO is not currently providing C with the necessary sense of security, stability and belonging required; and
8. There was no good reason for the summary dismissal of the mother’s application.

The appeal was accordingly allowed, and the previous orders set aside. The mother was granted leave to apply to discharge the SGO and restore her application for contact.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.