SZ v DG & Ors

Permission under section 91(14) of the Children Act 1989 requires an arguable case with some chance of success and a need for renewed judicial investigation. In assessing that question, the court may consider changes since the original order, the risk that renewed proceedings may destabilise the child’s placement, the views of the carers, and the child’s welfare, although welfare is not the paramount consideration.

Parliamentary criteria governing applications to vary a special guardianship order or seek post-adoption contact do not apply directly to a different section 91(14) application. However, the matters identified in those provisions may properly be given due weight.

The father applied for permission to seek an order for indirect contact with his seven-year-old son. A final order in 2015 had placed the child with special guardians, prohibited direct contact, and imposed a section 91(14) leave requirement for applications concerning contact until the child’s fourteenth birthday.

The father relied on changes in his circumstances, including the return to his care in the Czech Republic of three younger children. He also relied on the loss of the child’s contact with his mother and consequent loss of a connection with his Czech-Roma heritage. The special guardians opposed permission because of the risk of disruption and concerns about the father’s motives.

The issue was whether the father had shown an arguable case justifying renewed judicial investigation.

1. The application for permission was refused. The father had not demonstrated a sufficiently arguable case to justify intervention by the court.

2. Under section 91(14) of the Children Act 1989, the court applied the approach stated in Re S (Permission to Seek Relief) [2006] EWCA Civ 1190; [2007] 1 FLR 482. The two questions are complementary: whether the application presents an arguable case with some chance of success and whether it demonstrates a need for renewed judicial investigation.

3. In applying that test, the court considered changes since the original order, the risk of destabilising the child’s placement, the special guardians’ views, and the child’s welfare. Welfare was relevant but was not the paramount consideration. The court placed particular weight on the risk of disruption and the special guardians’ evidence.

4. Section 14D(5) of the Children Act 1989, concerning leave to apply to vary a special guardianship order, and section 51A(5) of the Adoption and Children Act 2002, concerning leave to seek post-adoption contact, did not apply literally because the application fell under section 91(14). Nevertheless, the statutory matters concerning significant change, disruption, connection with the child and representations could properly be taken fully into account. Section 51A(4)(c) provided a relevant analogy concerning post-adoption contact.

5. The father’s recent circumstances and the Czech court’s decision to return his younger children to his care did not outweigh the adverse material in the psychiatric and psychological report, his continuing lack of recognition of the earlier findings, the recent history of criminal misconduct, and the risk to the child’s settled placement. The application was therefore refused.

This was a first-instance application under section 91(14) of the Children Act 1989. The judgment recorded that final care and placement orders, including the leave requirement, had been made in the same proceedings on 14 January 2015.