G (A Child)

On an application for leave to apply to revoke a placement order, the change in circumstances requirement is a gateway to the exercise of discretion. It must be assessed without adding words such as “significant” or treating a recent change as inherently insufficient. The change may concern the parent, the child, or both. The court must identify the true baseline at the time of the placement order and make findings on disputed facts material to the alleged change. Sustainability and the effect on the child’s welfare belong principally to the discretionary stage, although the child’s changed circumstances may be relevant at the gateway stage. The appeal court must not reconstruct disputed facts from an unapproved note or determine fresh factual issues on material unilaterally supplied shortly before the hearing.

The mother appealed from an order of HHJ Levy in Barnet County Court, case BT14C0049, dated 23 September 2014. The judge refused her application under section 24(2)(a) of the Adoption and Children Act 2002 for leave to apply to revoke a placement order made in August 2012 concerning her son, J.

HHJ Levy treated the application as requiring a two-stage inquiry. She concluded that the mother had not shown the necessary change in circumstances and therefore did not consider whether leave should be granted in the exercise of discretion. The appeal concerned the proper threshold, the treatment of disputed factual allegations, and whether J’s circumstances could be considered. The central question was whether the first-stage gateway had been lawfully assessed.

1. Appeal allowed. The Court of Appeal set aside HHJ Levy’s order and directed that the mother’s application be heard afresh by a different court, without reference to HHJ Levy’s judgment.
2. The application involved a two-stage test: first, whether there had been a change in circumstances sufficient to open the gateway to judicial discretion; and secondly, whether leave should be granted. The first stage must be assessed in accordance with Re P (Adoption: Leave Provisions) [2007] 2 FLR 1069. The statute must not be given an additional gloss, such as a requirement that the change be significant.
3. A recent change is not thereby reduced in legal quality. Its sustainability and its impact on the child’s welfare may be considered at the discretionary stage. The first-stage inquiry is not confined to the parent’s circumstances. Depending on the case, changes in the child’s circumstances may also be relevant, although the child’s welfare should not ordinarily be analysed in depth until the second stage.
4. The judge below lacked the materials needed to establish a reliable baseline. Counsel’s unapproved note of the earlier hearing was not a sufficient substitute for the original judgment and agreed threshold criteria. The judge also failed to make findings on disputed facts that were material to the alleged change in circumstances, making the decision difficult to evaluate and legally unsound.
5. The Court of Appeal declined to determine the disputed factual issues or consider a late, uninvited social-worker statement intended to update the court on family finding. Fresh evidence should be admitted only through the ordinary procedure, particularly where the appellant is unrepresented.

• Court of Appeal (Civil Division): Appeal from Barnet County Court allowed on 13 January 2015, with reasons given on 20 February 2015. HHJ Levy’s order was set aside and the application was remitted for a fresh hearing before a different court.
• Barnet County Court: On 23 September 2014, HHJ Levy refused leave to apply to revoke the placement order.
• Earlier proceedings: Care and placement orders were made by DDJ Johns in August 2012. The judgment does not give the citation of that decision.