M (Special Guardianship Order: Leave To Apply To Discharge) (Rev 1)

On an application for leave to discharge a special guardianship order under section 14D(5) of the Children Act 1989, the court applies a two-stage test. First, the applicant must provide credible evidence of a significant change of circumstances: one that is considerable, noteworthy or important, but not necessarily exceptional. Secondly, the court makes a realistic evaluation of the applicant’s real prospects of success and of the welfare effect of the application being heard or not heard. Welfare is important but not paramount at that stage.

A parent may apply for contact notwithstanding a special guardianship order. Such an application may be managed or summarily dismissed if abusive, but it cannot be rejected without a fair basis for deciding it.

C had lived with his maternal grandparents since 2016. In July 2017, following care proceedings concerning the mother’s mental health and its effect on C, a special guardianship order was made in the grandparents’ favour. A written agreement provided for substantial contact between C and his mother.

In 2020, the mother sought leave to apply to discharge the order, relying on sustained improvements in her mental health and circumstances. She also applied for a child arrangements order concerning contact. Her applications were refused and dismissed summarily by Her Honour Judge Vincent at the Oxford Combined Court Centre.

The mother appealed. The central issues were the correct test for leave under section 14D(5) of the Children Act 1989, and whether her contact application could properly be dismissed without investigation.

1. Appeal allowed. The judge’s orders were set aside. The mother was granted leave to apply to discharge the special guardianship order, her contact application was restored, and both applications were remitted for directions and determination by another Circuit Judge.

2. The court adopted the two-stage structure identified in Re G [2010] EWCA Civ 300 and M v Warwickshire County Council [2007] EWCA Civ 1084. At the first stage, the applicant must show by credible evidence a significant change of circumstances. The word “significant” has independent force in section 14D(5): it means considerable, noteworthy or important. It does not require an exceptional change or a guarantee that every risk associated with the original order has disappeared. The court declined to follow the provisional view in Re G that there was no relevant difference between “a change” and “a significant change”.

3. If the threshold is met, the court must assess whether there is a real prospect of success and evaluate the welfare effect of allowing the discharge application to be heard or not heard. The child’s welfare is important but not paramount at this leave stage. The judge erred by treating it as paramount, by making no real assessment of prospects, and by focusing on unsupported worst-case consequences of proceedings. She also failed to consider whether investigation could resolve the child’s present insecurity and family conflict in the medium to long term.

4. The judge set the first-stage threshold too high by requiring assurance that the mother would remain free from relapse throughout C’s minority. The independent evidence of her considerable and sustained improvement was capable only of satisfying the significant-change requirement. At a leave hearing, the court evaluates usually incomplete material fairly and realistically; it does not make findings of fact or resolve competing factual accounts without a reliable basis.

5. Section 10(9) of the Children Act 1989 does not apply to an application under section 14D(5). A parent also retains the right to apply for contact while an SGO is in force. Section 14C permits a contact order to coexist with an SGO. The contact application was neither abusive nor a disguised attempt to evade the leave requirement. Its summary dismissal, without investigation of the disputed operation of the contact agreement, was unjustified.

• Court of Appeal (Civil Division) — allowed the mother’s appeal, granted leave to apply to discharge the special guardianship order, restored the contact application, and remitted both applications: [2021] EWCA Civ 442.
• High Court (Judd J) — on 12 November 2020, granted permission to appeal and transferred the appeal to the Court of Appeal.
• Oxford Combined Court Centre (Her Honour Judge Vincent) — on 24 August 2020, refused leave to apply to discharge the special guardianship order and dismissed the mother’s contact application.
• Care proceedings — in July 2017, a special guardianship order was made in favour of the maternal grandparents. The court is not stated in the judgment.