Warwickshire County Council v M & Ors

After a parent establishes a change of circumstances under section 24 of the Adoption and Children Act 2002, the court retains a discretion whether to grant leave to seek revocation of a placement order. The statutory change is a necessary threshold, not an automatic entitlement to leave.

In exercising that discretion, the child’s welfare is relevant but is not paramount. The court should also weigh the applicant’s prospects of success in the proposed revocation proceedings. A real prospect of success is a useful working assumption, although it is not an inflexible condition. The welfare assessment will usually substantially overlap with that assessment of prospects.

The local authority appealed from an order of His Honour Judge Bellamy in the Coventry County Court granting the mother leave to apply for revocation of placement orders concerning her two children.

The mother relied on improvements in her circumstances, including abstinence from drugs, reduced alcohol use, the end of abusive relationships and better management of her home. The judge found a change in circumstances and held that section 24 of the Adoption and Children Act 2002 then required leave to be granted.

The children had spent almost three years in foster care and prospective adopters had been identified. The central issue was whether proof of a change in circumstances made leave mandatory, or instead opened a discretion in which welfare and the prospects of revocation were relevant.

1. Appeal allowed. The Court set aside the grant of leave and substituted refusal of the mother’s applications.

2. Per Wilson LJ, with whom Dyson and Thorpe LJJ agreed, section 24(3) of the Adoption and Children Act 2002 imposes a threshold: the court cannot grant leave unless satisfied that circumstances have changed since the placement order. Once that threshold is met, however, a discretion arises. The language does not convert satisfaction of the threshold into a duty to grant leave.

3. The welfare principle in section 1 did not apply to leave under section 24(2), because such leave concerns initiation of proceedings. Welfare was therefore not paramount. It nevertheless remained a relevant consideration, as did the applicant’s prospect of success. The Court approved the distinction drawn in Re P (A Child) [2007] EWCA Civ 616 between leave to oppose an adoption order and leave to initiate revocation proceedings.

4. A court should ordinarily ask whether the proposed revocation application has a real prospect of success. That is a useful, but not rigid, working assumption. The assessment will almost always require consideration of whether revocation could realistically promote the child’s welfare, though welfare may exceptionally require separate consideration.

5. On the assumed facts, revocation had no real prospect of success. It would likely require further assessments and substantial delay, despite the children’s long period in foster care, their farewell to the mother, and the availability of well-matched prospective adopters. Granting leave would not serve their welfare.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal, set aside the grant of leave, and refused the mother leave to apply for revocation of the placement orders.

• Coventry County Court: On 24 August 2007, His Honour Judge Bellamy granted the mother leave to apply under section 24 of the Adoption and Children Act 2002.

• Warwickshire Family Proceedings Court: Made care orders on 21 June 2006 and placement orders on 21 July 2006.