G and H (Leave to revoke placement order), Re

An application for leave to revoke a placement order is made under Part 18 of the Family Procedure Rules 2010. The child is a party to the application and a children’s guardian must be appointed, although the court may manage the guardian’s involvement proportionately.

A change of mind by a family member is not legally incapable of constituting a change of circumstances under section 24(3) of the Adoption and Children Act 2002. It will usually require something more, but the question concerns the circumstances leading to the placement order, not merely whether the applicant’s personal circumstances have changed.

The paternal grandmother appealed from the Family Court at Derby, which refused her application for leave under section 24(2)(a) of the Adoption and Children Act 2002 to apply to revoke placement orders concerning her two grandchildren. The placement orders had been made after care proceedings concluded in November 2022. The grandmother later sought assessment as a potential kinship carer.

The appeal concerned whether the children should have been parties represented by a guardian at the leave stage, and whether the grandmother’s willingness to put herself forward as a carer could amount to a change of circumstances under section 24(3).

1. The appeal was allowed on both grounds. The order refusing leave was set aside and the application was remitted for rehearing by another judge. The decision did not determine whether leave should ultimately be granted.

2. Under Practice Direction 18A and Part 18 of the Family Procedure Rules 2010, applications for permission must use the Part 18 procedure unless another Part makes specific provision. Part 14 governs the substantive revocation application, not the preliminary application for leave. Under rule 18.3, the child is nevertheless a respondent because the child was a party to the concluded placement proceedings, or would be a party to proceedings issued if leave were granted.

3. Because the child is a party, rule 16.4(1)(b) requires the appointment of a children’s guardian. The court may use its case-management powers under rule 4.1(3)(o) and rule 18.9 to restrict the guardian’s substantive involvement or determine an application without a hearing, but those powers must be exercised cautiously. The contrary obiter observation in M v Warwickshire County Council [2007] EWCA Civ 1084 was not correct.

4. The statutory leave test is two-stage. First, there must be a change in circumstances of a nature and degree sufficient to open the door to consideration of leave. Secondly, the court must decide whether leave should be granted in all the circumstances, including the prospects of success and the child’s interests; welfare is relevant but not paramount. A bare change of mind is not automatically excluded, although it will usually be insufficient without something more.

5. The relevant comparison is with the circumstances which led to the placement order. The grandmother’s active proposal to care for the children was potentially sufficient to pass the first stage. The judge instead asked whether the grandmother’s own circumstances had changed and did not consider the second stage. The application therefore required rehearing, with the children joined and a guardian appointed.

1. Court of Appeal (Civil Division) — Appeal allowed; the refusal of leave was set aside and the application was remitted for rehearing. [2023] EWCA Civ 768
2. Family Court sitting at Derby — HH Judge Williscroft refused leave to apply to revoke the placement orders and dismissed the application for discharge of the care orders. Permission to appeal was later granted only in relation to the placement orders.