Warwickshire County Council v M & Ors

Factual and Procedural Background

This appeal concerns the interpretation and application of section 24 of the Adoption and Children Act 2002, specifically the criteria for granting leave to apply for the revocation of a placement order. The placement order in question authorised a local authority to place two children for adoption.

The local authority, Company A, appealed with permission against an order made by Judge Bellamy in the County Court on 24 August 2007, which granted leave to the Respondent ("the mother") to apply for revocation of placement orders made on 21 July 2006 regarding her two children, a boy aged five and a girl aged three.

Following the grant of leave, the mother issued applications for revocation, and directions were given for a three-day hearing and the appointment of a Children's Guardian to represent the children. The children, through their guardian, were permitted to intervene in this appeal. The hearing for leave involved competing submissions about the meaning of section 24(2) and (3) of the Act, with the mother arguing that establishing a change in circumstances required the court to grant leave, while Company A contended that the court retained a discretion to grant leave, taking the children's welfare into account.

Judge Bellamy upheld the mother's interpretation, finding a change in circumstances and granting leave. Company A, supported by the guardian, challenged this construction, while the mother defended it.

The factual background includes the mother's history of drug abuse, domestic violence, and the children's time in foster care. Care orders were made in June 2006 with a plan for adoption without ongoing contact with the mother. Placement orders followed a month later, despite the mother's opposition. The local authority searched for adoptive placements and eventually found suitable adopters in January 2007. The mother applied for leave to revoke the placement orders shortly before the planned placement.

Legal Issues Presented

1. What criteria should a judge apply in deciding whether to grant leave under section 24(2)(a) of the Adoption and Children Act 2002 to apply for revocation of a placement order?
2. Whether the establishment of a change in circumstances mandates the granting of leave or whether the court retains a discretion in the exercise of which the welfare of the child must be considered.
3. How the court should assess the applicant's prospects of success in the proposed revocation proceedings when exercising discretion to grant leave.
4. Whether the paramountcy of the child's welfare applies to applications for leave to apply for revocation of placement orders under section 24(2) of the Act.

Arguments of the Parties

Appellant's Arguments (Company A)

• The establishment of a change in circumstances under section 24(3) is a necessary precursor to the court's discretion but does not compel the court to grant leave.
• The court's discretion should include consideration of the welfare of the children.
• Section 1 of the Act, which makes the child's welfare paramount, applies to decisions under section 47(5) but not to applications for leave under section 24(2).
• The judge's interpretation that leave must be granted if a change in circumstances is established is incorrect.
• The applications for revocation have no real prospect of success and granting leave would not serve the children's welfare.

Respondent's Arguments (The Mother)

• Once a change in circumstances since the placement order was made is established, the court must grant leave to apply for revocation under section 24(3).
• The welfare of the children is not a relevant consideration in the exercise of discretion to grant leave under section 24(2).
• The case law supports a mandatory grant of leave upon proof of a change in circumstances.
• The mother submitted that the judge's interpretation in this respect was correct and defended the grant of leave.

Guardian's Position

• Supported the appellant's submission that the judge's construction of section 24(3) was wrong and that the court retains a discretion which includes consideration of the children's welfare.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework under section 24 of the Adoption and Children Act 2002, focusing on the requirement that leave to apply for revocation of a placement order may only be granted if there has been a change in circumstances since the order was made. The court considered the competing interpretations of whether this requirement mandates the granting of leave or merely triggers a discretion.

The judge below had held that once satisfied that there was a change in circumstances, leave must be granted, excluding consideration of the child's welfare at this stage. The appellate court disagreed, concluding that the judge had erred in construing the statutory language "cannot give leave unless satisfied" as a mandatory obligation to grant leave.

The court distinguished between applications under section 24(2) for leave to apply for revocation and applications under section 47(5) for leave to oppose an adoption order. It held that section 1 of the Act, which makes the child's welfare paramount in adoption decisions, applies to the latter but not the former. Nevertheless, the court found that a discretion arises upon establishment of a change in circumstances under section 24(3), in which both the welfare of the child and the applicant's prospects of success in the proposed revocation proceedings must be weighed.

The court emphasized that the welfare of the child, while not paramount in the leave stage under section 24, remains a relevant factor. The applicant's prospects of success should be assessed using a practical test akin to the "real prospect of success" standard commonly applied in civil appeals. This assessment inherently involves consideration of the child's welfare because a real prospect of success in revocation necessarily implies that revocation would better serve the child's interests.

Applying this framework to the facts, the court noted that the mother had demonstrated some improvement in her circumstances, but the welfare of the children and the history of the case suggested that revocation was unlikely to succeed. The children had been in foster care for three years, with a carefully endorsed plan for adoption. The proposed adopters were well matched and prepared to proceed swiftly. The court reasoned that granting leave would likely result in delay and emotional harm to the children, with little realistic prospect of revocation.

Accordingly, the court exercised its discretion to refuse leave, concluding that the applications lacked a real prospect of success and that granting leave would not serve the children's welfare.

Holding and Implications

The court ALLOWED THE APPEAL, set aside the order granting leave to apply for revocation of the placement orders, and substituted a refusal of leave.

The direct effect is that the mother’s applications for leave to apply for revocation of the placement orders are dismissed, and the children remain free to be placed for adoption without further delay. The decision clarifies that under section 24(3) of the Adoption and Children Act 2002, the establishment of a change in circumstances triggers a discretion rather than an absolute right to leave, and that discretion must weigh both the welfare of the child and the applicant’s prospects of success.

No new precedent was established beyond this clarification of the statutory interpretation and discretionary framework. The ruling emphasizes the court's role in balancing the competing interests of the child’s welfare and procedural fairness in applications to revoke placement orders.