K (A Minor), Re

When a relative seeks late permission to apply for a special guardianship order, the court must consider the statutory leave criteria together with the 26-week timetable. Delay is not an automatic bar, but it is a significant welfare consideration, particularly for a young child. The court may refuse permission without directing a detailed assessment where the proposed application has no real prospect of success or presents a significant risk of disrupting the child’s life and causing harm. The decision must remain welfare-based and founded on an evaluation of the evidence, rather than on the timetable alone.

The case concerned an infant subject to care proceedings. The child’s paternal grandparents initially considered applying for a special guardianship order but withdrew, citing health concerns and their assessment of the child’s welfare. After learning more about the legal position concerning parental applications, they sought late permission to apply.

The grandparents relied on their family relationship, successful contact and the benefits of a family placement. The mother opposed the application and argued that the child’s future should be decided without further delay. The central issue was whether permission should be granted for a special guardianship application requiring further assessment shortly before the expiry of the 26-week period.

1. Application refused. The grandparents’ application for leave to apply for a special guardianship order was dismissed.
2. Under Children Act 1989, section 14A(12), an application for leave to apply for a special guardianship order is treated in the same manner as an application for leave to make a section 8 application. The court therefore had to consider the nature of the proposed application, the applicants’ connection with the child, and any risk that the application would disrupt the child’s life to such an extent that he would be harmed. Where the child is looked after by a local authority, the court must also consider the authority’s plans and the parents’ wishes and feelings.
3. The principles in Re M [1995] 2 FLR 86 were applicable. A frivolous, vexatious or abusive application should fail. Permission should also be refused where there is no real prospect of success, or where the prospect is so remote that the application is unsustainable. The applicant must show a serious issue to try and a good arguable case.
4. The leave criteria had to be considered with the 26-week requirement. The 26-week period was not an absolute guillotine, but delay beyond it was presumed to be harmful, particularly for a young baby, and the period was to be treated as an outside limit applicable in all but exceptional cases.
5. The judge heard focused evidence because the grandparents’ change of position required evaluation. She found that the application was well meant but emotional, unconsidered, unrealistic and insufficiently child-focused. The grandparents’ unresolved health concerns and their awareness of the potential for future disruption by the parents created a significant risk of harm. Their application had no real prospect of success.
6. The refusal was therefore welfare-based and founded on the evidence, not merely on the impending expiry of the statutory timetable. The court added that late applications by relatives may generally be determined without detailed assessment where appropriate, with any oral evidence kept short and focused.