G (A Child)

For leave to apply for discharge or variation of a special guardianship order, section 14D(5) of the Children Act 1989 sets a threshold, not the whole decision. A significant change in circumstances is necessary but opens a discretion. The court should then weigh the child's welfare and the prospects of success of the proposed substantive application, keeping those considerations distinct.

The matters in section 10(9) are not formally required, although an individual matter may be relevant. Disruption following a successful application should not be treated as adverse where success would itself promote the child's welfare. The approach in M v Warwickshire County Council [2007] EWCA Civ 1084 should be applied by analogy.

The mother sought permission to appeal against the Bournemouth County Court's refusal, on 15 September 2009, of leave to apply for discharge of a special guardianship order made in favour of the maternal grandmother on 15 August 2006. The grandmother conceded that leave should be granted, relying on material not placed before the lower court.

The Court of Appeal therefore considered, on an interim and non-adversarial basis, the proper approach to applications under sections 14D(3) and 14D(5) of the Children Act 1989, including whether the factors in section 10(9) were formally applicable. The central issue was the threshold for leave and the discretion arising once it was satisfied.

Lord Justice Wilson delivered the judgment, and Lord Justice Ward agreed. The Court granted permission to appeal, allowed the appeal by consent, and substituted a grant of leave to the mother to apply for discharge of the special guardianship order.

1. Statutory threshold. Section 14D(5) of the Children Act 1989 requires the court to be satisfied that there has been a significant change in circumstances since the special guardianship order was made. The court provisionally treated that requirement as necessary but not sufficient. Once established, it gives rise to a discretion.
2. Exercise of discretion. Adopting the approach in M v Warwickshire County Council [2007] EWCA Civ 1084, the court indicated that the child's welfare and the prospects of success of the proposed substantive application should both be weighed. Although linked and often consonant, those considerations should not be subsumed one into the other. Re A; Coventry CC v CC and A [2007] EWCA Civ 1383 was relied on as supporting a similarly simple approach where statutory tests use materially similar language.
3. Section 10(9). The matters specified in section 10(9) for leave to apply for a section 8 order are not formally required on an application under section 14D, although one or more may be relevant in an individual case. In particular, treating disruption caused by a successful discharge application as adverse was misconceived, since success would necessarily mean that discharge served the child's welfare under section 1(1).
4. Application. Even without the additional letters, the court would have been satisfied that the mother's successful parenting of her younger child and sustained counselling, parenting work and domestic-abuse support represented a significant change. The observations were expressly made in the absence of adversarial argument and pending fuller jurisprudence.

1. Court of Appeal (Civil Division). In [2010] EWCA Civ 300 , permission was granted, the appeal was allowed by consent, and leave to apply for discharge of the special guardianship order was substituted for the lower court's refusal.
2. Bournemouth County Court. His Honour Judge Bond refused the mother's application for leave on 15 September 2009.