G & H (Leave To Revoke Placement Order)

Factual and Procedural Background

This appeal arises from an order refusing a grandmother's application under section 24(2)(a) of the Adoption and Children Act 2002 ("the 2002 Act") for leave to apply to revoke placement orders concerning two grandchildren, aged 3 and 2. The local authority initiated care proceedings in April 2022 due to concerns including neglect and family conflict. The children were placed in foster care under interim care orders in May 2022. The grandmother was not assessed as a kinship carer during the proceedings, a matter disputed between her and the local authority. Care and placement orders were made in November 2022. Shortly thereafter, the grandmother applied as a litigant in person for discharge of the care orders and leave to apply to revoke the placement orders. The application was refused following a hearing in January 2023. The grandmother appealed, arguing procedural irregularity and error in the refusal of leave.

Legal Issues Presented

1. Whether the children are automatic parties to an application for leave to revoke placement orders under section 24(2)(a) of the 2002 Act.
2. Whether a change of mind by a family member about becoming a potential carer, without more, constitutes a change of circumstances sufficient to satisfy section 24(3) of the 2002 Act.

Arguments of the Parties

Appellant's Arguments

• The hearing was procedurally incorrect because the children's guardian should have been joined as a respondent to the application for leave to revoke the placement orders.
• The children’s voices were not represented, and the judge erred by deciding the application without the guardian’s independent welfare analysis.
• The grandmother contended that the application for leave falls within the definition of specified proceedings and the relevant Family Procedure Rules, requiring the guardian’s involvement at the leave stage.
• Regarding the change of circumstances, the grandmother argued that her availability as a potential carer after the making of the placement order constituted a sufficient change to open the door to leave being granted.

Respondent's Arguments (Local Authority)

• The child is not a party to an application for leave to revoke a placement order, which falls outside specified proceedings and certain procedural rules.
• The judge had discretion at the leave stage whether to appoint a guardian, and given the circumstances, it was appropriate not to do so.
• The grandmother initially did not put herself forward as a carer during proceedings; a mere change of mind after the placement order was insufficient to amount to a change of circumstances.

Guardian's Arguments

• Supported the local authority’s interpretation that children are not automatically parties at the leave stage.
• Emphasized the importance of judicial discretion to manage resources and avoid unnecessary delays and costs by not appointing guardians where not necessary.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the statutory framework and relevant Family Procedure Rules to determine the procedural status of applications for leave to revoke placement orders. It concluded that such applications are governed by Part 18 of the Family Procedure Rules, not Part 14, and that the child is indeed a party to the leave application. Consequently, a children's guardian must be appointed under rule 16.4(1)(b), which mandates guardian appointment where the child is a party, without the discretion to refuse.

The court identified an anomaly in the rules: while the court may exercise discretion not to appoint a guardian at the substantive revocation stage, no such discretion exists at the leave stage. This was considered an unintended consequence of procedural reforms, prompting a recommendation to refer the matter to the Family Procedure Rule Committee for review.

Regarding the change of circumstances, the court rejected a rigid rule that a mere change of mind is never sufficient but acknowledged that such cases are likely to be exceptional. The focus must be on whether there has been a change in the circumstances that led to the placement order. The judge below erred by assessing the grandmother’s personal circumstances rather than the relevant statutory test and by failing to consider the second stage of whether leave should be granted.

The court emphasized the importance of safeguarding the child's welfare while balancing the need to filter out unmeritorious applications to prevent unnecessary delay and resource diversion.

Holding and Implications

The court ALLOWED the appeal on both grounds and set aside the order refusing leave to apply to revoke the placement orders. The application for leave must be reheard by a different judge, with the child joined as a party and a children's guardian appointed. The court noted that the guardian should likely play an active role in the rehearing and suggested consideration of appointing a new guardian for fairness, given the guardian's opposition to the appeal.

The court clarified that no indication was given as to whether leave to revoke the placement orders should ultimately be granted on rehearing. The decision primarily corrects procedural errors and clarifies the proper legal test and procedural requirements.

Additionally, the court recommended referring the procedural anomaly concerning guardian appointment at the leave stage to the Family Procedure Rule Committee for possible rule amendment.