Applications for leave to revoke, children as parties, and changes of circumstances

Catherine Ellis considers the issues raised by a recent Court of Appeal case where a grandmother was seeking to appeal refusal of her application for leave to apply to revoke a placement order.

The case of G&H (Leave to revoke placement order) [2023] EWCA Civ 768 was an appeal by a grandmother against a refusal of her application under s24(2)(2) Adoption and Children Act 2002 (“the 2002 Act”) for leave to apply to revoke placement orders in respect of her grandchildren. The application for leave was made six weeks after the care and placement orders had been made.

The grandmother’s case was that she had expected to be assessed in the care proceedings. The local authority (LA) case on that issue was that she had not put herself forward as a carer.

Appointment of a Guardian

The Judge, at case management stage, had directed that it was not necessary for the children to be party to the proceedings, nor for a Cafcass Guardian to be appointed until the application for leave had been determined. That decision was the subject of the first ground of appeal.

After undertaking a detailed and forensic analysis of the various statutory provisions in the 2002 Act, the Children Act 1989 (“1989 CA”), case law underpinning the application of s24 by the court and Parts 1, 4, 14, 16 and 18 of the FPR 2010 (as well as considering the 2005 rules), Baker LJ held that:

1. The Part 18 procedure must be used for all applications for permission (save where specific provision is made elsewhere in the rules);
2. An application for leave to apply to revoke a placement order falls into the category of applications “where the proceedings have concluded” for the purposes of Rule 18.3 FPR;
3. Per Rule 18.3(a)(i), the parties to the concluded proceedings will be automatic respondents to the application for leave therefore the child(ren) will be an automatic respondent;
4. Guardian appointment is then governed by Rule 16.4(1)(b) FPR and the court must appoint a guardian for the child. This means the court does not have the discretion derived from Rule 16.3 FPR to decline to appoint a guardian if “satisfied that it is not necessary to do so to safeguard [the child’s] interests”, which it does have in the substantive application to revoke the placement order;

The court described the situation as leading to an “anomaly” which was an unintended consequence of the changes to the rules in 2010 and proposed referring the matter to the Family Procedure Rule Committee for review.

It is perhaps a surprising decision, which Baker LJ acknowledged “may cause some alarm amongst judges dealing with applications for leave to revoke”. He fell back on the family court’s extensive case management powers under Rule 4.1(3) FPR to find a mechanism to prevent resource exhaustion and stated:

“In my judgment, whilst a judge is obliged to join the child to an application for leave to revoke a placement order and to appoint a guardian, it is entirely permissible to direct that the guardian take no substantive step in connection with the application…”

whilst recognising that these were “powers that should be exercised with caution” and suggesting that they ought to be reserved for those cases where the application has no prospects of success.

It will further come as a surprise to the many judges and practitioners who had been working on the basis that leave applications in respect of applications to revoke a placement order had been governed by the Part 14 FPR scheme. This is perhaps not unreasonable as Part 14 is entitled “Procedure for Applications in Adoption, Placement and Related Proceedings”. Interestingly, were the leave application to be governed by Part 14, the court would have the discretion not to appoint a guardian if satisfied that it was not necessary to do so to safeguard the interests of the child – in substance, a discretion that Baker, LJ strove to protect by highlighting the case management powers the court can invoke.

That said, it is now clear that Part 18 FPR takes precedence and that many of us ought to have paid more attention to the wording of Paragraph 1.1 PD18A that “All applications for the court’s permission should be made under this Part” (save where specific provision is made in other parts of the FPR).

Change of Circumstances

The second issue determined by the appeal court was 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 within the meaning of s24(3) (the court cannot give leave “unless satisfied that there has been a change in circumstances since the order was made”).

Baker, LJ decided that it could, but that this would be unusual. Normally, there will have to be “something more”.

The focus for Judges considering whether there has been a change in circumstances, for the purposes of a s24 leave application should not be on whether the applicant’s circumstances had changed but on “whether there had been a sufficient change in the circumstances which led to the making of the placement order.” This will “open the door” to a consideration of whether leave to apply should be given. This second stage of consideration, at which the child’s welfare is relevant but not paramount, the question for the court is “whether in all the circumstances, including [the applicant]’s prospects of success in securing revocation of the placement order and [the child]’s interests, leave should be given”.

The clarity may not change a great deal in practice. The court will retain a broad discretion as to whether to grant leave in each individual case. As always, it is likely that prompt applicant’s will have better prospects of success than tardy ones. In any event, judges will have “all the circumstances” of the case as evidential resources upon which to base whichever decision they ultimately reach.

The Judgment is a useful read. A helpful list of the principles to be applied by the court considering an application to revoke a placement order is set out at paragraph 14.

Catherine Ellis is a barrister at Pump Court Chambers.