G (A Child)

Factual and Procedural Background

The proposed appeal concerns a boy, referred to as D, born on 9 September 2005, who currently resides with his maternal grandmother under a special guardianship order made on 15 August 2006. The mother of D sought permission to appeal against the refusal by His Honour Judge Bond at Bournemouth County Court to grant leave to apply for the discharge of this order. The grandmother subsequently conceded that leave to apply for discharge should be granted, based on material not previously presented to the judge. The mother and grandmother maintain a good relationship, and the mother has agreed contact arrangements with D. The mother had previously left an abusive relationship with D's father, who is now imprisoned abroad, and has since ended a subsequent concerning relationship. The local authority no longer expresses concerns about the mother’s current care of her younger child. The procedural history culminated in the refusal of leave to apply for discharge by the circuit judge, whose decision is now under appeal.

Legal Issues Presented

1. Whether there has been a "significant change in circumstances" since the making of the special guardianship order, as required by section 14D(5) of the Children Act 1989, to justify granting leave to apply for discharge of the order.
2. What is the correct legal test and statutory framework to apply when considering an application for leave to apply for the discharge of a special guardianship order under sections 14D(3) and (5) of the Children Act 1989.
3. Whether the matters specified in section 10(9) of the Children Act 1989 are applicable to the assessment of leave to apply for discharge of a special guardianship order.
4. How the approach to applications for leave under section 14D(5) compares to that under section 24(3) of the Adoption and Children Act 2002 regarding revocation of placement orders, particularly in relation to the interpretation of "significant change" versus "change" in circumstances.

Arguments of the Parties

Appellant's Arguments

• The mother argued that there has been a significant change in circumstances since the special guardianship order was made, including her successful parenting of her younger child and her engagement with counselling and support programmes.
• She contended that the judge erred in not considering fresh evidence demonstrating her progress and that discretion should be exercised in her favour to grant leave to apply for discharge.
• The mother’s counsel submitted that the judge should consider the matters in section 10(9) of the Children Act 1989 when deciding on leave.

Appellee's Arguments

• The grandmother initially opposed the application but later conceded that leave to apply for discharge should be granted based on evidence of the mother’s progress not before the judge.
• She had submitted to the judge that although there was a change in the mother's circumstances, it was not "significant" under the statutory test.
• Both parties’ counsel agreed that the judge should have regard to section 10(9) of the Children Act 1989 in his decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court noted the absence of adversarial argument due to the grandmother’s concession, but proceeded to clarify the legal framework for applications for leave to apply for discharge of special guardianship orders. The court emphasized that the threshold statutory condition under section 14D(5) requires satisfaction that there has been a "significant change" in circumstances since the making of the order. The judge had found that although there was a change, it was not significant, partly due to lack of evidence about the mother’s progress. However, fresh evidence, not before the judge, demonstrated the mother’s engagement with counselling and parenting programmes, persuading the grandmother to concede.

The court expressed concern about the judge’s consideration of section 10(9) of the Children Act 1989, which relates to leave to apply for a section 8 order by persons other than the child. The court reasoned that this provision is not formally applicable to leave to apply for discharge of special guardianship orders, though some factors may be relevant in discretion.

Drawing on statutory interpretation principles and comparative analysis with the Adoption and Children Act 2002, the court concluded that the statutory language in section 14D(5) and section 24(3) of the 2002 Act should be treated as effectively equivalent. The court adopted the approach from the Warwickshire case, which holds that establishing a significant change in circumstances is necessary but not sufficient; the court must then exercise discretion balancing the welfare of the child and the prospects of success of the substantive application.

Applying this approach, the court found that there had been a significant change in circumstances and that discretion should be exercised in favour of granting leave to apply for discharge.

Holding and Implications

The court GRANTED PERMISSION TO APPEAL, ALLOWED THE APPEAL, and SUBSTITUTED A GRANT OF LEAVE for the mother to apply for discharge of the special guardianship order previously made in favour of the grandmother.

The decision directly affects the parties by allowing the mother to proceed with her application to discharge the special guardianship order. No new precedent was established beyond clarifying the proper statutory approach and emphasizing the applicability of the test articulated in the Warwickshire case to such applications.