Section 24 of the Adoption and Children Act 2002 (“the Act”) provides as follows:

Warwickshire County Council (“Warwickshire”) appeal, with the permission of the judge himself, from an order made by His Honour Judge Bellamy in the Coventry County Court on 24 August 2007. By his order he granted leave to the Respondent (“the mother”) to apply for revocation of placement orders made by the Warwickshire Family Proceedings Court on 21 July 2006 in relation to her two children, namely M, a boy, who was born on 13 June 2002 and is thus aged five, and L, a girl, who was born on 10 December 2003 and is thus aged three.

Following the grant of leave the mother duly issued her applications for revocation; and the judge has given directions in relation to them. One direction has been that he should determine the applications at a three day hearing beginning on 17 December 2007. Another direction has been for appointment of a Children’s Guardian. An application for revocation is included, at (hh), in the list of “specified proceedings” in s.41(6) of the Children Act 1989 (“the Act of 1989”), with the result that the court must appoint a guardian to represent the children unless satisfied that it is unnecessary to do so. Thus the children are parties to the applications for revocation and the judge has appointed a guardian to represent them; indeed Ms Booth, who represented them both in the placement proceedings and in earlier care proceedings, has been assigned to the role. An application for leave to apply for revocation is not included in the list of “specified proceedings”. Thus the children were not parties to the mother’s applications for leave and the guardian took no part in them. Nevertheless, now that she is in post, this court has been happy to accede to her suggestion that, acting by her, the children should in effect intervene in this appeal.

At the hearing of the applications for leave, which took place before the judge on 13 August 2007, rival submissions were made about the meaning of s.24(2) and (3) of the Act, set out at [1] above. The mother submitted that, were she to establish that there had been a change in circumstances since the placement orders were made, the court was required to grant leave. Warwickshire submitted, however, that the establishment of a change in circumstances was only the necessary precursor to the court’s exercise of a discretion whether to grant leave and that in its exercise of such discretion it should take the welfare of the children into account. Each side cited the recent decision of this court in Re P (A Child) (adoption order: leave to oppose making of adoption order) [2007] EWCA Civ 616, [2007] 2 FCR 407, as being in support of its submission.

In a long and careful judgment the judge upheld the mother’s submission. He held:

Warwickshire, supported by the guardian, contend that the judge’s construction of s.24(3) was wrong. The mother defends it.

The mother, who is aged 23 and of dual heritage, currently lives alone. Unfortunately she is HIV-positive but she does not presently require treatment. The children have different fathers, both of whom were of African ethnicity; and the children present as black. M suffers cerebral palsy but presently it is in so mild a form that its effects are scarcely noticeable. L’s father, to whom the mother was married, was diagnosed with paranoid schizophrenia. He was an unsuccessful asylum-seeker and ultimately, in May 2004, after having perpetrated serious acts of violence on the mother and been detained in hospital for a lengthy period, he was removed to Malawi.

In October 2004 Warwickshire accommodated both children at the mother’s request. At that time she was using crack cocaine and accepted that she was thereby disabling herself from caring for them adequately. In November 2004, after a few weeks with the maternal grandparents, the children were placed, on what was intended to be a short-term basis, with the foster carers with whom they continue to live. At the time of the placement M was thus two years old and L was less than a year old; and they have thus lived in the foster home for almost three years.

In September 2005 Warwickshire issued applications for care orders. The substantive hearing of the applications took place in the family proceedings court on 21 June 2006. By then Warwickshire’s care plan, supported by the guardian, was for the children to be placed together for adoption without continuing face-to-face contact with the mother. Warwickshire recognised however that, in the light of the need for the children to remain together, of their ethnicity, of M’s cerebral palsy and of L’s father’s mental illness, the finding of an appropriate placement might prove difficult. In the event the mother, who was represented at the hearing, withdrew her opposition to the making of the care orders. Neither of the fathers played any part in the proceedings. So, after at any rate reading and perhaps also hearing a quantity of evidence, the magistrates made the orders.

In their written reasons, in which they evinced sympathy for the mother in the light of “her obvious love for the children and her wish to care for them”, the magistrates adopted the contents both of Warwickshire’s threshold memorandum and of the guardian’s report. From such documents one therefore collects the basis on which the care orders were made. In summary it was as follows:

The mother had exposed the children to frequent incidents of domestic violence between her and L’s father, during which the police had been called.

Contrary to professional advice, she had allowed him to return to the family home although, to her knowledge, he believed that he had heard voices that he should kill L.

Notwithstanding his removal to Africa, she had not excluded the prospect of reconciling with him in the event that he might manage to return to the U.K.

She had recently developed a relationship with another man named Emmanuel, whom she had put forward as a prospective carer of the children jointly with her.

For five years until late in 2005, since when she had been abstinent at any rate from drugs, she had been abusing alcohol and crack cocaine, had therefore been unable properly to look after herself let alone the children and, other than in the short term, had failed to access help in overcoming those problems even for the sake of the children.

The condition of her home had often been squalid.

She had left the children unsupervised or with unsuitable carers.

She had failed to take the children for medical appointments and, following their reception into care, had frequently cancelled contact sessions or arrived late for them.

A clinical psychologist had assessed her as immature, prone to abusive relationships, overwhelmed by the enormity of her problems and unlikely to be able to sustain the changes necessary for the provision of safe parenting to the children within a time-frame acceptable for them.

The children had already spent 19 months in foster care. In the words of the guardian, it was “not in their best interests to wait any longer” and the mother had “left it too late to demonstrate that she [was] able to make the necessary changes to her life”.

Precisely one month after making the care orders the magistrates made the placement orders. The mother withheld her consent to the making of them and indeed, albeit only by the submissions of her advocate, opposed their making. Mr Vater on behalf of Warwickshire complains to us that in their written reasons the magistrates did not fully set out the circumstances by reference to which they concluded that the welfare of the children required her consent to be dispensed with; and thus that they have not made it easy for the court now to discern whether there has been a change in circumstances. But the placement orders followed so clearly and so swiftly in the slipstream of the care orders that I have no difficulty in assuming that the circumstances upon which the magistrates relied in making the care orders upon a plan for the children to be adopted were also those by reference to which they dispensed with the mother’s consent and made the placement orders.

From as early as May 2006 until January 2007 Warwickshire searched throughout England for an adoptive placement for the children but without success. In January 2007 they found the prospective adopters with whom they now wish to place the children. The couple are of appropriate ethnicity, namely a black British-African woman and a white British man, who, following research, wish to adopt M and L notwithstanding his cerebral palsy and her father’s mental illness. Early in June 2007 Warwickshire decided that, subject to approval of the match by their adoption panel on 25 June (which was duly given) and to satisfactory introductions, they would place the children with the couple on 22 July, in time for them to begin at school and play-school in September. So on 7 June 2007 Warwickshire informed the mother that a placement had been found for the children, that her last, farewell occasion of contact with them would take place on 21 June and that they would be placed soon afterwards. They also informed the children that they would soon be moving to their new, permanent home and so would be saying goodbye to the mother on 21 June.

The farewell occasion of contact duly took place on 21 June 2007; and on the same day Warwickshire learnt that on the previous day the applications had been issued on the mother’s behalf for leave to apply for revocation of the placement orders. The mother had signed the applications and her first statement in support of them on 19 June. It seems clear that the issue of the mother’s applications had been precipitated by her learning that Warwickshire were then, at last, about to place the children.

Section 24(5) of the Act provides that, where an application for the revocation of a placement order has been made and has not been disposed of, the child may not be placed for adoption without the court’s leave. Notwithstanding submissions on behalf of the mother to the contrary, the judge held that there was nothing, whether in that subsection or elsewhere, which precluded a placement without leave while an application for leave to apply for revocation was pending. I agree with the judge; and in this court the mother does not argue to the contrary. The judge went on to observe, however, that, were an application for leave to have been issued but not to have been disposed of, it would normally be good practice for a local authority either to agree not to place the child until its disposal or at least to agree to give notice, say of 14 days, to the applicant of any proposed placement. In this regard I also agree with him. Given such notice, the applicant might perhaps be able either to take steps to challenge the lawfulness of the decision to place at that juncture or, probably more easily, to seek an expedited hearing of the application for leave, from which might flow, in the fine, developing tradition of collaboration between local authorities and courts, a short further agreed moratorium on placement until the hearing. In the present case Warwickshire issued a precautionary application for leave to place in order to guard against the possible rejection of their submission that leave was unnecessary; and, very properly, they have continued to refrain from placing the children until the determination of this appeal. Indeed they add that, were it to be dismissed, they would not propose to apply for the leave to place which would then be required but, rather, would await the outcome of the hearing of the applications for revocation, fixed to begin on 17 December 2007. The present stance of the proposed adopters, so Warwickshire tell us, is that, were the mother’s applications for revocation to continue to be allowed to proceed, they would also await the outcome of the hearing in December in the hope that the applications would be dismissed and thus that the children would again become free swiftly to be placed with them.

In summary the mother’s case before the judge that there had been a change in circumstances since the placement orders were made was as follows:

L’s father had died in Zimbabwe on 9 March 2007.

The mother’s relationship with Emmanuel, which had been abusive, had ended in December 2006.

Since then she had not been “romantically involved” with any other man.

Her abstinence from crack cocaine, which had begun late in 2005, had continued to date but until April 2007 she had at times continued to use cannabis. Her abstinence from all prohibited drugs since April 2007 was demonstrated by a trichological report.

Her drinking of alcohol had become negligible, as was demonstrated by the results of a blood test.

She now kept her home clean and tidy, as she sought to demonstrate with photographs.

Between March and June 2007 she had held down a part-time job and, albeit after issue of her applications, had approached an advisory service and secured a written “Career Action Plan”, which she produced.

For the monitoring of her HIV-status she had continued to attend a clinic four times a year and, albeit after issue of her applications, she had registered for counselling with the Terence Higgins Trust.

Albeit after issue of her applications, she had sought counselling with a Domestic Violence Support Service.

The truth of some of the mother’s assertions set out above, including that L’s father had died, was fairly well demonstrated by documents which she attached to her statements and to some of which I have referred. But it was agreed before the judge that, for the purposes of the applications for leave, he should assume that all her assertions were true. Very properly Mr MacDonald on her behalf tells us, however, that unfortunately one of her assertions, namely that at [15](c), was untrue in that since March 2007 she has been conducting a casual non-cohabiting relationship with another man. The untruth of that particular assertion perhaps makes little difference to her case.

The judge concluded that, taken cumulatively, the features upon which the mother relied amounted to a “change in circumstances” for the purpose of s.24(3) of the Act. I think that he was certainly entitled, indeed probably correct, to reach that conclusion. I adopt it. From his view of the law, set out at [5] above, it followed that he was required to grant the applications for leave. At the end of his judgment he did advert to some of the circumstances referable to the children which Mr Vater pressed upon him, namely that they had been prepared for placement and had said farewell to the mother; that the foster parents had said that their placement had become urgent; and that rehabilitation with the mother, even if conceivably appropriate for them, could not be achieved without protracted assessment. No doubt in his mind, albeit not in his words, the judge placed these factors into the time-frame of nearly three years which the children had already spent in the “short-term” foster home. Then, however, consistently with the view of the law which he had earlier articulated, the judge said:

Additional to the question whether it was essentially right or wrong, there is, if I may say so with respect, a further, slight curiosity about the judge’s analysis of s.24(3) of the Act. For, by reference in particular to Re P, to which I will turn in [19] below, the judge held that the change in circumstances required by s.24(3) had to be

In Re P a child had been made the subject both of a care order upon a plan that she should be adopted and of a placement order following dispensation by the court with the consent of her parents. She was thereupon placed for adoption and later the proposed adopters applied for an adoption order. Section 47(1) of the Act provides that an adoption order may not be made unless one of three conditions set out in the section is met. The adopters argued that the second condition was met, namely that the child had been placed with them for adoption under a placement order and that “no parent … opposes the making of the adoption order”. The parents wished to oppose the making of the adoption order and, had they been permitted to do so, the proposed adopters would not have been able to meet the second condition and instead would have had to attempt to meet the first condition. But s.47 goes on to provide as follows:

In Re P the trial judge refused to grant leave to the parents to oppose the making of the adoption order; and this court dismissed the appeal of the father, supported by the mother. First the judge had concluded that the parents had failed to establish a change in circumstances. At [37] of its judgment this court expressed doubt about that conclusion. Secondly, however, the judge had concluded that, even if there had been a change in circumstances, a discretion arose under s.47(5) whether to grant leave and that in its exercise the paramount consideration was the child’s welfare; and he found that it would not be in the interests of the child to grant leave to the parents in that her welfare continued to require her to be adopted. At [38] and [39] this court held that the judge had been correct to conclude both that, if there had been a change in circumstances, a discretion arose and that in its exercise the paramount consideration was the child’s welfare; it also held that he had been entitled to find that it would not be in her interests to grant leave.

It is important not only to collect from Re P that, at any rate under s.47(5) of the Act, a discretion whether to grant leave arises upon the establishment of a change in circumstances pursuant to s.47(7) but also to understand why in the exercise of the discretion under s.47(5) the welfare of the child is paramount. The explanation lies in s.1 of the Act, which provides as follows:

It is as clear that s.1 of the Act does not apply to an application for leave to apply to revoke a placement order under s.24(2) as it is that it does apply to an application for leave to oppose the making of an adoption order under s.47(5). In the end such was agreed between both sides before the judge in the present case; and he accepted it. The reason lies, of course, in the wording of s.1(7). To determine an application for leave to apply under s.24(2) is to come to a decision about granting leave for the “initiation” of proceedings by an individual under the Act; and so it does not fall within s.1(7)(b). Nor does it fall within s.1(7)(a) because, as was also held in Re P, at [22], the determination of an application for leave is not a decision whether to make the substantive order which the applicant aspires ultimately to secure or to prevent. So the determination of an application for leave under s.24(2) is not ‘included’ in either limb of s.1(7). But the matter is put beyond doubt by the final 15 words of s.1(7) which, importantly, are not part of the second limb, at (b), but qualify the whole subsection. Their effect is not only that the determination of an application under s.24(3) for leave to initiate revocation proceedings is not specifically included under s.1 (7)(a) or (b) in the phrase “coming to a decision relating to the adoption of a child” but also that it is positively excluded from it. In Re P, at [23], this court suggested that the final words of s.1(7) might refer to applications for leave under different statutes, such as an application for leave to apply for a special guardianship order under s.14A(3)(b) of the Act 1989. To the charge that such may be far-fetched, the court’s response might be that, had the requirement for leave to apply for revocation under s.24(2)(a) been brought to its attention, it might have identified that more obvious example of a situation to which the words apply.

It may now be seen how each side came to cite Re P to the judge as being in support of its submission. Warwickshire submitted that common to both s.24(3) and s.47(5) were the crucial words “cannot give leave … unless satisfied that there has been a change in circumstances since the … order was made”; and that, since Re P demonstrated that, when found in the latter subsection, the words gave rise to a discretion upon establishment of a change in circumstances, the same words, when found in the former subsection, also gave rise to a discretion. The mother, by contrast, submitted that the crucial difference lay in the paramountcy of the child’s welfare in a determination under the latter and in its lack of paramountcy in a determination under the former; that the court’s decision in Re P that a discretion arose under s.47(5) was inextricably linked to its conclusion that s.1 applied so as to make the child’s welfare paramount; that the applicability of s.1 to s.47(5) drove a conclusion that a discretion existed in which the welfare of the child could be afforded its due paramountcy; and that in the case of s.24(3) there was no such driver.

I am of the clear view that, with respect to him, the judge was seduced into accepting the wrong submission. From the fact that in the exercise of any discretion under s.24(3) the welfare of the child would not be paramount it did not follow that there was no discretion thereunder at all. The mother’s submission that such did follow was to the effect that the baby should be thrown out with the bath-water. It is well established elsewhere in the law that a determination whether to grant leave to apply for an order relating to a child may require the court to exercise a discretion in which his welfare, although relevant, is not paramount. The most obvious example is an application under s.10(9) of the Act of 1989 for leave to make an application under s.8 of it: see Re A and W (Minors) (Residence Order: Leave to Apply) [1992] 2 FLR 154. In the present case the judge held that:

I cannot explain why Parliament should have provided that, in the discretionary exercise which arises under s.47(5), the child’s welfare should be paramount but that, in the discretionary exercise which arises under s.24(3), it should not be paramount. I can think of no situation other than under s.47(5) in which the facility to participate in proceedings relating to a child is governed by the paramountcy of a child’s welfare; and, in making that remark, it follows that I prefer the approach to a child’s application for leave under s.10(8) of the Act of 1989 favoured by Booth J. in Re SC (A Minor) (Leave to Seek Residence Order) [1994] 1 FLR 96 to that favoured by Johnson J. two days earlier in Re C (A Minor) (Leave to Seek Section 8 Orders) [1994] 1 FLR 26. I confess that the thought has crossed my mind that, in choosing its words in s.1(7) of the Act of 2002, Parliament might momentarily have forgotten that in s.47(5) it was including a requirement to obtain leave to oppose the making of an adoption order and that, had such been in its mind, it might have used the word “participation” rather than “initiation” in s.1(7)(b). Mr Pressdee submits, however, that there may be a respectable justification for the difference, namely that, by the stage at which an application for an adoption order is issued, the child is further down the line towards adoption: for he has been placed with the prospective adopters, probably pursuant to a placement order, and the local authority have thus implemented their care plan. In such circumstances, so Mr Pressdee submits, it is reasonable for the child’s welfare to be determinative of an application under s.47(5) for leave to oppose. I confess, however, that I do not understand why the welfare of a child thus placed should be ascribed any degree of materiality different from that of a child who remains unplaced.

Whenever it is invested with a discretion whether to grant leave for proceedings to be issued, a court will have regard to the applicant’s prospect of success in the proposed proceedings. From the sphere of proceedings relating to children I offer five examples:

If a child is a ward of court, an application for an order for his adoption cannot be issued without leave of the court in wardship. In deciding whether to grant leave, the court will consider whether the application “reasonably might succeed”: F v. S (Adoption: Ward) [1973] Fam. 203.

A child’s application under s.10(8) of the Act of 1989 for leave to apply for an order under s.8 of that Act referable to himself requires the court to consider “the likelihood of success”: Re SC (A Minor) (Leave to Seek Residence Order) cited above.

An application under s.10(9) of the Act of 1989 for leave to apply for an order under s.8 requires the court to consider – in addition to other specified factors – “whether there is an arguable case”: G v. F (Contact and Shared Residence: Applications for Leave) [1998] 2 FLR 799.

An application under s.34(3) of the Act of 1989 for leave to apply for an order for contact with a child in care requires the court to consider whether “there is any eventual real prospect of success” and “a good arguable case”: Re M (Care: Contact: Grandmother’s Application for Leave) [1995] 2 FLR 86.

An application under s.91(14) of the Act of 1989 for leave to make an application by a person who by order thereunder has been barred from doing so without leave requires the court to ask “does this application demonstrate that there is any need for renewed judicial investigation?”: Re A (Application for Leave) [1998] 1 FLR 1.

It is perhaps unfortunate that in different situations the courts have used different terms by which to describe the recommended analysis of the applicant’s prospect of substantive success in applications for leave. But the underlying differences may be slight. I suggest that, in conducting the discretionary exercise under s.24(3) of the Act, courts might usefully borrow the language of the test generally applicable to permission to appeal in civil proceedings, set out in C.P.R. 52.3(6), and ask whether the applicant would have “a real prospect of success”. The words are simple; the test is in regular use; it seems to work well; and, in relation to an application for leave to revoke a placement order, it seems – broadly – to be pitched at the right height. But I should stress that, whereas under C.P.R. 52(3)(6) every applicant is required to establish a real prospect of success (or some other compelling reason for the proposed appeal), the purpose of my present discussion is only to identify factors relevant to the exercise of a discretion. So it cannot be written in stone that the prospect of success has to be real. I commend it only as a reasonable working assumption, likely to be apt to the vast majority of applications.

It may be seen therefore that the qualification which the judge articulated but failed to apply, set out in [18] above, closely matches the enquiry which, in a different context, namely as part of the exercise of the discretion which he held did not arise, I myself commend. If there is a real prospect of success, no doubt in practice it will be the change in circumstances which will have given rise to it. But, perhaps as a matter only of form, I would avoid linking the change to the prospect as definitively as did the judge in stating that the former had to be “of a nature and degree” such as to give rise to the latter.

In relation to an application for leave under s.24(3) of the Act I therefore hold that, on establishment of a change in circumstances, a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted. But I hesitate to suggest that analysis of welfare will always be satisfactorily subsumed within an analysis of prospect. Take a child who has proved extraordinarily difficult to place; and assume that apparently ideal adopters have at last been found for him but that they demonstrate a wish for him to be placed with them only if such can occur within days of the hearing of the application for leave and, otherwise, a preference to receive another child instead. Might the court not then consider that, although the proposed application for revocation, likely to be heard at a time when, as before, no specific adoptive home was in prospect, had a real prospect of success, nevertheless the child’s welfare would not be served by grant of leave? Other, probably better, examples may crop up as exercise of the jurisdiction under s.24(3) develops.

In that the judge wrongly held that, on establishment of the change in circumstances, he was obliged to grant leave to the mother under s.24(3) of the Act, the resultant discretion was never exercised. It seems preferable that, as indeed all parties agree, this court should exercise it rather than remit to the judge the task of doing so.

I suggest that the discretion should be exercised by the following process of reasoning:

Were leave granted, the applications for revocation would be heard swiftly, namely on dates beginning on 17 December 2007, which is less than two months from today.

The proposed adopters are prepared to keep open until the conclusion of that hearing their offer to the children of a placement with them, subject to satisfactory introductions.

So the mother argues that the grant of leave would give rise to negligible further delay, with no risk that the proposed adopters might be lost in the interim.

But what chance is there that the court would revoke the placement orders at the conclusion of the hearing in December 2007?

Revocation would amount to the wholesale reversal of the programme for the children which the court felt driven to endorse when making the care and then the placement orders about 16 months ago.

The court then endorsed the programme for the children to be adopted, in effect without opposition by the mother, because they had suffered significant harm in her care and because there was then no prospect that, within a time-frame apt to the children’s needs, she could develop a capacity to care adequately for them.

In such circumstances, even were she to establish all the alleged features of the change in circumstances which we assume to exist for present purposes, the mother would face a stiff task in persuading the court that she had the capacity to provide the adequate care which she lacked 16 months ago.

Surely the only arguably realistic aspiration of the mother at the hearing in December would be to achieve an adjournment of her applications for revocation pending full professional assessment of her parenting capacity. But, even were such assessment to be found at a subsequent hearing to be sufficiently positive to justify a reintroduction of the children to her, initially through contact, the court would need a further, positive, assessment of her together with them before being able to give definitive consideration to revocation of the placement orders and, presumably, unless the local authority were to change their care plan, also of the care orders.

So at the hearing in December the mother’s only real hope would be to persuade the court to adopt a forensic programme inherent in which would be protracted further delay for the children.

One could not rely on the present proposed adopters, who appear to be particularly well matched to the children, to feel able to tolerate such further delay.

The children have already been in what was intended to be “short term” foster care for three years, namely for well over half their lives.

No less than sixteen months ago the court accepted the guardian’s view that it was not in the interests of the children to wait further and that the mother had left it too late to demonstrate necessary change.

Thereafter, as predicted, the children proved difficult to place. Were at any stage the programme likely to be advocated on behalf of the mother in December to break down, they would, by reason alone of increased age, be even more difficult to place.

Four months ago the children said farewell to the mother and they have not seen her since then. At that time it was represented to them that the end of their contact with her was part of an arrangement under which, at last, they were about to move to their new, permanent home. The children might well face serious emotional difficulties in coming to terms with any reversal of such representations.

In December the court would have to weigh the above factors in determining whether to accede to the mother’s likely request for her applications for revocation to be adjourned.

The overwhelming likelihood is that in December the court would find it contrary to the welfare of the children for the applications for revocation to be adjourned (still less to be granted there and then) and therefore that instead it would dismiss the applications.

So the applications for revocation have no real prospect of success.

Nor would it serve the welfare of the children for the applications for leave to be granted.

In the above circumstances, in its discretion, the court should refuse the mother’s applications for leave.

So, notwithstanding my admiration for the improvements in her life which the mother appears to have achieved, I would allow the appeal, set aside the grant to her of leave and substitute for it a refusal of her applications.

I agree.

I also agree.