P (A Child), Re

On an application by a person other than a local authority for leave to apply to revoke a placement order, any change in circumstances must be assessed against the basis and reasons for the original order. The court must then weigh the child’s welfare against the applicant’s real prospect of success. Welfare is highly important at this preliminary stage, but it is not the paramount consideration. An appellate court should not disturb a refusal of leave where the judge applied the correct approach and no sufficient reason for interference is shown.

The mother applied for permission to appeal the refusal by HHJ Mitchell in Nottingham County Court on 7 August 2008 of her application under section 24 of the Adoption and Children Act 2002 for leave to apply to revoke a placement order concerning her daughter, K.

Care and placement orders had been made in August 2007 after findings that the mother could not provide K’s long-term care. An earlier Court of Appeal decision upheld those orders. The mother relied on changes including independent living, improved health and attachment, and a support network. The capacity issue was bypassed as unnecessary for determining leave. The central issue was whether the asserted changes justified reopening the placement order and whether the refusal involved procedural unfairness or an Article 6 breach.

1. The Court of Appeal refused the application for permission to appeal. Sir Mark Potter delivered the principal judgment and Lord Justice Wall agreed.

2. Under section 24(3) of the Adoption and Children Act 2002, a person other than a local authority must establish a change in circumstances before the court has jurisdiction to entertain an application for leave to apply to revoke a placement order. The sufficiency of the change must be assessed by reference to the basis and reasons for the original decision, since the order has the character of a final disposition. The statute does not prescribe the precise quality or degree of change required. [2007] EWCA Civ 1084 was treated as identifying the relevant considerations.

3. Where a material change is established, or assumed, the court exercises its discretion by weighing the child’s welfare and the applicant’s real prospect or likelihood of success if leave is granted. The judge was entitled to conclude that the asserted changes either had already been considered, were insufficiently connected with the original concerns, or did not demonstrate an ability to meet K’s long-term and full-time needs. The improvement in K’s health and the developing relationship with her mother did not, in the overall context, justify reopening the order.

4. The judge’s description of the child’s welfare as paramount was legally erroneous. On a leave application of this kind, welfare is a very important consideration but is not paramount. The judge corrected the emphasis immediately, and the error did not affect the outcome. The Court of Appeal also found no substance in the allegations that the procedure infringed Article 6.

5. The absence of updated medical or social-work evidence before the judge was unfortunate. Nevertheless, the material available entitled him to refuse leave, and the later medical evidence was considered likely to confirm rather than undermine the original concerns. There was no sufficient reason for the Court of Appeal to interfere with the exercise of discretion. Application refused.

1. Court of Appeal (Civil Division): On 22 October 2008, the application for permission to appeal was refused. [2008] EWCA Civ 1607

2. Nottingham County Court: On 7 August 2008, HHJ Mitchell refused the mother’s application under section 24 of the Adoption and Children Act 2002 for leave to apply to revoke the placement order.