T (Children)

An application for permission to revoke a placement order under section 24 of the Adoption and Children Act 2002 has two stages. The court must first identify a relevant change in circumstances since the order. The change must be of a nature and degree sufficient to open the door to judicial evaluation, but the test must not be set artificially high or confined to changes in the parent. The court must assess the whole case against the circumstances and threshold underpinning the original order. Changes in the children, including distress or unsettled behaviour linked to separation, may qualify. If the first stage is met, the court must then consider permission, including the prospects of the application and the children’s welfare. The rights and relationships of all siblings require proportionate consideration.

The father appealed against the Family Court’s refusal of permission to apply to revoke placement orders made in respect of his two youngest sons. The placement orders had been made on 23 September 2013 following public-law proceedings concerning four brothers.

By the time of the application, the father had divorced the children’s mother and entered a new relationship. The two younger children had also become unsettled and distressed, while the older siblings were concerned about the ending of contact. The central issue was whether these matters amounted to a relevant change in circumstances under section 24 of the Adoption and Children Act 2002.

Appeal allowed. Russell J delivered the judgment, with Sir Maurice Kay and Sir Colin Rimer agreeing.

1. Section 24 of the Adoption and Children Act 2002 creates a two-stage process. The court must first decide whether there has been a change in circumstances since the placement order. If so, it must then decide whether permission should be granted. The second stage involves a wider judicial discretion, including consideration of the prospects of success and the children’s welfare.
2. The change must be relevant to the grant of permission and sufficient, in nature and degree, to open the door to judicial evaluation. Its relevance is fact-sensitive and must be assessed against the case as a whole, including the threshold and factual circumstances on which the original order was made. The test must not be set too high. It is not confined to changes in the parent’s circumstances. The Court applied the approach in Re P (Adoption: Leave Provisions) [2007] EWCA 616 and Re B-S (Children) [2013] EWCA Civ 1146.
3. The father’s new relationship was a relevant change when assessed against the original concern about the parents’ continuing relationship, although its short duration meant that it might not have been sufficient by itself. The judge had wrongly given primacy to the father’s circumstances and to questions of his honesty.
4. The children’s circumstances also had to be considered. Their increased unsettled and disturbed behaviour, anxiety and distress were potentially relevant changes. The judge was wrong to treat the behaviour as ordinary uncertainty without an evidence-based assessment of its cause, particularly in light of evidence concerning the children’s close sibling relationships and the likely harm caused by separation.
5. The Article 8 rights of all four children were engaged. Sibling relationships and the rights of older siblings to family life survive the making of placement orders. The long-term effects of separation and the importance of inter-sibling contact require proportionate consideration alongside the interests of a prospective adoptive placement.
6. The judge’s conclusion that there had been no relevant change was wrong. The father’s change of circumstances and the younger children’s increased unsettled behaviour were collectively sufficient to permit the application to proceed to the second stage. The Court did not determine the merits of revocation. The two younger children were to be represented in any future proceedings, with a new guardian appointed if necessary.

1. Court of Appeal (Civil Division) — Allowed the father’s appeal, holding that the Family Court had wrongly concluded that there had been no relevant change in circumstances.
2. Family Court (Swansea) — On 2 May 2014, supplemented on 16 May 2014, refused the father permission to apply to revoke the placement orders.
3. Family Proceedings Court, Neath Port Talbot — On 23 September 2013, made care orders concerning three of the children and placement orders concerning the two youngest children.