G & H [2023] EWCA Civ 768: Establishing the Necessity of Children's Representation in Leave to Revoke Placement Order Applications

Introduction

The case of G & H (Leave To Revoke Placement Order) ([2023] EWCA Civ 768) presents a significant development in family law, particularly concerning the procedural requirements for applications to revoke placement orders under the Adoption and Children Act 2002. The appellant, a grandmother, sought to revoke placement orders placed on her two grandchildren, alleging a change in circumstances that warranted the court's reconsideration. The core issues revolved around whether the children should be automatic parties to such applications and whether a mere change of mind by a family member sufficed as a change in circumstances under the relevant statute.

Summary of the Judgment

The Court of Appeal dismissed the initial refusal to grant leave to revoke the placement orders. The key findings were:

The children are indeed automatic parties to applications for leave to revoke placement orders.
A change of mind by a potential carer does not inherently constitute a sufficient change in circumstances unless accompanied by other substantial factors.
The original judge erred procedurally by not joining the children and appointing a guardian in the leave application process.

The appellate court ordered that the application be reheard with the necessary parties and guardians duly appointed, emphasizing the importance of safeguarding the children's interests throughout the process.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that shaped the court's reasoning:

Re D (Leave to Apply to Revoke Placement Orders) [2022] EWCA 299: Established a two-stage process for evaluating applications to revoke placement orders, focusing on changes in circumstances and the child's welfare.
Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616: Affirmed that changes in circumstances need not be significant but sufficient to open the door to judicial consideration.
M v Warwickshire County Council [2007] EWCA Civ 1084: Highlighted the relevance of the child's welfare in the court's deliberations, though not deemed paramount.
YC v United Kingdom (2012) 55 EHRR 967: Emphasized that family ties should only be severed in exceptional circumstances, underscoring the judiciary's role in preserving familial relationships.
Re JL (A Child) (Leave to Apply to Revoke Placement Order) [2020] EWCA Civ 1253 and Re T (Children) [2014] EWCA Civ 1369: Demonstrated the necessity of appointing a guardian to represent children's interests in leave applications.

These precedents collectively reinforced the court’s position on the procedural and substantive requirements for such applications, ensuring the child’s interests remain central.

Legal Reasoning

The court's reasoning unfolded in two major parts corresponding to the appellant's grounds of appeal:

1. Procedural Correctness and Child Representation

The primary contention was whether the children's guardian should have been automatically joined as a respondent. The initial judge had deemed it unnecessary until the leave application was determined. However, upon review, the appellate court found this interpretation flawed. By analyzing the Family Procedure Rules (FPR), especially Rule 18.3, it became evident that the children are indeed parties to the leave application. Consequently, a guardian must be appointed to represent their interests from the outset.

2. Change in Circumstances

The second issue revolved around whether the grandmother's change of mind constituted a sufficient change in circumstances to warrant revoking the placement orders. The court clarified that while a mere change of mind does not automatically qualify, it could be considered sufficient if accompanied by other substantial changes. The initial judgment failed to assess whether the underlying circumstances that led to the placement orders had altered, thereby improperly concluding that no significant change had occurred.

Impact

This judgment sets a critical precedent in family law by clearly delineating the procedural requirements for kinship carers seeking to revoke placement orders. Key impacts include:

Mandatory Child Participation: Ensures that children are automatically parties to leave applications, thereby safeguarding their interests.
Guardian Appointment: Establishes the necessity of appointing a children's guardian in such applications, aligning procedural practices with the child's welfare needs.
Clarification of "Change of Circumstances": Provides clarity on what constitutes a significant change, preventing frivolous applications based solely on shifts in the carer's intentions.
Family Procedure Rules Review: Highlights discrepancies in the FPR, prompting potential legislative revisions to address procedural anomalies.

Future cases will refer to this judgment to ensure compliance with procedural standards, emphasizing the courts' commitment to child-centric decision-making.

Complex Concepts Simplified

Placement Order

A legal order that authorizes a local authority to place a child for adoption with prospective adopters selected by the authority.

Leave to Apply

A procedural step where a party must seek the court’s permission before initiating certain legal actions, ensuring that only merit-worthy cases proceed.

Change of Circumstances

Refers to significant alterations in the conditions that originally justified legal decisions, such as placement orders, warranting their reconsideration.

Children’s Guardian (Cafcass)

An appointed official whose role is to represent the best interests of a child in family court proceedings, ensuring the child's voice is heard.

Family Procedure Rules (FPR)

A comprehensive set of rules governing the procedures and processes within family courts, aiming to ensure just and efficient handling of cases.

Conclusion

The G & H [2023] EWCA Civ 768 judgment underscores the judiciary's unwavering focus on the welfare of children in family law proceedings. By mandating the inclusion of children as parties and the appointment of guardians in leave applications, the court fortifies protections around adoption processes. Additionally, the clarification on what constitutes a change in circumstances serves to balance the need for genuine reevaluations against the prevention of baseless legal challenges. This case not only rectifies procedural oversights but also prompts a necessary review of the Family Procedure Rules to eliminate existing ambiguities, ensuring that the legal framework consistently prioritizes the best interests of the child.