M (Special Guardianship Order: Leave To Apply To Discharge) (Rev 1)

This appeal is about the test for granting leave to apply to discharge a special guardianship order (‘SGO’). That turns on the construction of section 14D (5) of the Children Act 1989 (‘the 1989 Act’) in the context of an appreciation of the nature and effect of SGOs. The appeal also concerns the circumstances in which an application for a Child Arrangements Order (‘CAO’) can be summarily dismissed.

The proceedings concern C, a boy who is now aged 9. His mother, the Appellant, is in her late 20s. His father has never been on the scene. The mother’s parents divorced during her teenage years and in 2007 she left home. She then experienced serious problems with her mental health and over the years she had hospital admissions and various forms of treatment. In October 2016, following a breakdown in his mother’s health, C (then 4½) moved to live with his maternal grandmother and her partner (‘the grandparents’), who live a seven minute walk from the home the mother shares with her partner, Mr D.

The local authority took care proceedings. Its parenting assessment concluded that the mother could meet most of C’s needs when well, but that her recurrent ill health meant that she was unable to care for him adequately overall. Other family members had stepped in to look after him or to provide support in the home. C had experienced frightening situations, and had become persistently anxious about his mother’s wellbeing. The mother’s relationship with Mr D was fairly new and the local authority identified serious deficits in his parenting. Concern was also felt about the behaviour of his own young son towards C when that child had visited.

The mother was assessed by a consultant psychiatrist, Dr Ratnam, as having an Emotionally Unstable Personality Disorder and as needing long-term therapy. It was suggested that she work with the Complex Needs Service over 12-18 months to assist her in managing her condition. However, at the time of the assessment in May 2017, the mother did not recognise the need for a referral.

The care proceedings ended in July 2017 with the threshold being carefully defined in these terms:

“Mother’s mental health/neglect/emotional harm

1.

The Mother is diagnosed as having an emotionally unstable personality disorder and has a long history of emotional deregulation, self-harm and depression. C is at risk of, neglect and emotional harm due to his mother’s inability to meet his needs when she is unwell. C reports feelings of anxiety about his mother and that she might need to go to hospital again. The mother understands that this was as a result of her previously being admitted to hospital as a result of an asthma attack.

2.

The Mother reports auditory hallucinations telling her to self-harm and to harm her partner and C. She reports complying with the directions to self-harm but not those relating to C or Mr D. The mother has self-harmed including:

(i)

In September 2015 the mother drank three bottles of Calpol and consumed alcohol. C was not in her care at this time and she sought medical support the following day.

(ii)

In May 2016 the mother took 15 Venlafaxine

(antidepressant) and got into bed with C while at the Maternal Grandmother’s home. She sought medical help the following day.

(iii)

On 24^th October 2016, at home, the mother burned herself using a cigarette lighter while C was in her sole care. She sought medical help the following day.

(iv)

On 12^th November 2016 the mother took 32 paracetamol in the lunchbreak at day hospital. She informed staff 1.5 hours after her overdose.

C is at risk of neglect, emotional and physical harm through exposure to such episodes.

3.

At times the mother has engaged well and accepted advice and support. At other times when she has suffered mental ill health she has not been in a position to meet C’s needs fully and has relied on her family members to support her.”

The outcome was that an SGO was made in the grandparents’ favour without opposition. It was accompanied by a written agreement, signed by the grandparents, the mother and Mr D, and approved by the local authority and the court. The agreement, which describes itself as “underpinning” the SGO, spelled out how decisions for C would be taken and how information would be exchanged. It provided for the mother to have contact of up to five hours twice a week, supervised by the grandparents, extending in due course to staying contact at the grandparents’ home once a month. For a “settling in period” of three months, C was not to have contact with Mr D and his son except for monthly Skype contact, but after that the expectation was that they would also have contact. The local authority agreed to fund mediation.

In February 2020, the mother applied for leave to make an application to discharge the SGO with a view to C returning to her care. In July 2020 she also applied for a child arrangements order for C to spend time with her while the proceedings continued, or in the longer term.

The parties filed statements. The mother stated that since 2017, her mental health had greatly improved and that her mood has been stable, without relapses or further episodes of self-harm. By the end of the care proceedings she had signed up to the Complex Needs Service and described it as life-transforming. She had also completed a course in Mentalisation-Based Therapy and attends another support group. She takes her medication regularly and maintains supportive contact with her GP. Since September 2017 she has had responsible employment as a team coordinator for an autism service. Mediation has not been successful and the grandparents have hindered contact, which the mother describes as rigid, inflexible and minimal. C is unhappy and should be returned to her care. Her relationship with Mr D continues and they plan to marry.

The grandparents acknowledged the improvements in the mother’s mental health but believe that they are insufficient to enable her to care for C. They stated that it would not be in his interests to have a change of care and it would be traumatic for him to return to the home from which he was removed. Mr D is not a good parenting model. C is settled, happy and broadly doing well, but it has not been easy. The impact of his early life experiences is still very significant and it does not help that his mother has not accepted this should be his permanent placement, and that she gives him mixed messages and causes him to feel unsettled. In addition, some family members have taken the mother’s side. Contact may have to be further reduced for C’s sake.

A report was commissioned from the local authority and provided in June 2020. This describes the position in impartial terms, referring to the degree of involvement that the grandparents and the mother have had with local authority and other services, and their different perspectives. The difficulties include the fact that it has not been possible to complete Life Story work with C because of the distress that it causes him. He is on the SEND register. He finds school difficult and was referred to CAMHS. The social worker concluded that C is struggling with managing his emotions. Life Story work should be completed. C needs to be reassured about his long-term living arrangements and they need to be supported by the family members. In conclusion, it was stated that:

“A Special Guardianship Order was made for C as the courts identified the care he was receiving was not adequate and was neglectful. There were concerns for [the mother]’s mental health and treatment history showed clear periods of being very unwell, getting better, being discharged, self-harming, hospital admissions, renewed engagement with services, getting better and then a decline in her health. These cycles created instability for C. Therefore, to ensure C had permanency and stability he was placed in the long-term care of his Grandmother. Careful consideration and a thorough assessment would need to be completed to consider [the mother]’s application to revoke the Special Guardianship Order and whether this would be in C’s best interests.

I am unable to make recommendations about how C is doing in his current placement… or recommendations in respect of the Special Guardianship Order or contact arrangements as there has not been a recent assessment to inform my view.”

The mother’s applications came before Her Honour Judge Vincent (‘the Judge’) on 24 August 2020. The mother appeared in person with a McKenzie Friend, Ms Crystal Lowe, and the grandparents (whose legal costs are met by the local authority) were represented by counsel, Ms Jennifer Kotilaine. Having heard submissions and considered the evidence from the 2017 proceedings and the present proceedings, the Judge delivered a written judgment later the same day. She refused leave to the mother to apply for the discharge of the SGO and she dismissed the application for contact.

Then mother promptly sought permission to appeal, which was granted by Judd J on 12 November 2020, when she transferred the appeal to this court under rule 30.13 of the Family Procedure Rules 2010. We heard the appeal on 4 March 2021 and reserved our decision.

I shall first consider the law as it concerns applications to discharge SGOs and the summary disposal of applications for CAOs. I will then describe the Judge’s reasoning and state my conclusion in relation to the appeal.

Special guardianship was created in 2005 as an alternative legal status that offered greater security for children than long-term fostering, but without the absolute legal severance from the birth family that stems from adoption. According to figures published by the Ministry of Justice, some 67,000 children were made subject to SGOs in the ten years since 2011, of whom three-quarters had been the subject of care proceedings. (In the same period, some 54,000 children were adopted.) Special guardianship has been much more popular than custodianship, its predecessor under the Children Act 1975, which was described by the Law Commission in 1988 (Law Com. No. 172) as little used.

The White Paper published in 2000, Adoption: a new approach Cm. 5017, stated that special guardianship would:

The legal framework for special guardianship was created through amendments to the 1989 Act brought about by the Adoption and Children Act 2002 (‘the 2002 Act’). Section 115(1) of the 2002 Act inserted new sections 14A-F into the 1989 Act. The new sections provide for:

Under section 14C, the effect of an SGO is that the special guardian will have parental responsibility for the child. Subject to any later order, they may exercise parental responsibility to the exclusion of all others with parental responsibility.

The purpose of special guardianship is therefore to achieve permanence for the child.

Special guardianship is therefore one way of ensuring that a child grows up in a loving family with a sense of security, continuity and belonging. A much fuller early account of its origins and nature and of the legislative scheme can be found in the judgment of Wall LJ in Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54; [2007] 1 FLR 819.

More recently, no doubt due its prevalence, a great deal of attention has been paid to special guardianship. In 2015 the Government carried out a review. Its consultation response in December 2015 (DFE-00309-2015) identified a significant minority of cases where there were difficulties involving poor quality assessments of prospective special guardians, potentially risky placements being made alongside a supervision order, and inadequate support for special guardians. Amendments to primary and secondary legislation have followed, but there is a perception that the problems have not yet been resolved: see the report of the Public Law Working Group in June 2020.

After this brief overview, I turn to the discharge of SGOs and to parental contact.

Section 14D of the 1989 Act concerns the manner in which SGOs, unlike adoption orders, can be varied or discharged:

“14D Special guardianship orders: variation and discharge

(1)

The court may vary or discharge a special guardianship order on the application of—

(a)

the special guardian (or any of them, if there are more than one);

(b)

any parent or guardian of the child concerned;

(c)

any individual who is named in a child arrangements order as a person with whom the child is to live;

(d)

any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;

(e)

the child himself; or

(f)

a local authority designated in a care order with respect to the child.

(2)

In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).

(3)

The following must obtain the leave of the court before making an application under subsection (1)—

(a)

the child;

(b)

any parent or guardian of his;

(c)

any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;

(d)

any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.

(4)

Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).

(5)

The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.”

Accordingly, a parent seeking to discharge an SGO requires the leave of the court under ss. (3) (b), which can only be given if the court is satisfied under ss. (5) that there has been a significant change in circumstances since the making of the order. Ss. (2) also allows the court hearing family proceedings about a child to vary or discharge an SGO on its own initiative.

The condition in s. 14D (5) (introduced into the 1989 Act by the 2002 Act) calls to mind the somewhat analogous leave provisions in the later Act in relation to applications to revoke a placement order (s. 24 (3)) or to oppose the making of an adoption order (s. 47 (5)), both of which require “a change in circumstances”. In Re G (Special Guardianship Order) [2010] EWCA Civ 300; [2010] 2 FLR 696 at [13]), it was said that, when considering an application for leave to apply to discharge an SGO, the court should follow the two-stage approach applicable to applications for leave to revoke a placement order set out in M v Warwickshire County Council [2007] EWCA Civ 1084; [2008] 1 FLR 1093 at [29]. That case established that a change in circumstances is necessary but not sufficient for leave to be granted and that, if there has been a change in circumstances, the court has to make an evaluation in which the welfare of the child and the prospects of success should both be weighed.

A question arises as to correct interpretation of s 14D (5), which provides that leave may not be granted to a parent unless there has been a significant change of circumstances since the making of the SGO. That was considered by Ward LJ and Wilson LJ in Re G (above) in a somewhat unusual situation. A judge had refused to grant leave to apply to discharge a SGO. He accepted that there had been change, but not that it had been significant change, and he applied the checklist of factors in s. 10 (9) of the 1989 Act, which ostensibly relates only to an application for leave to apply for a s. 8 order. Before the appeal was heard, the parties agreed that leave should be granted and the appeal was allowed by consent. Because of the legal issues, Wilson LJ gave a judgment, with which Ward LJ agreed. It was prefaced in this way:

“1.

… The remarks which I will make in this short judgment must be considered in the light of the absence of adversarial argument; but possibly they will be of some use to family judges and practitioners on an interim basis pending a more satisfactory examination, at whatever level of court, of the issues raised.”

and later:

“14.

I suggest that, until the emergence of more robust jurisprudence in relation to the proper approach to the determination of applications for leave to apply for the discharge (or variation) of special guardianship orders, the approach should be that commended in the Warwickshire case.”

I agree that the two-stage approach taken in Warwickshire is the appropriate structure for a decision about granting leave under s. 14D (5).

In relation to the first stage, there has been some debate about the exact nature of the change in circumstances required by s. 14D (5). Wilson LJ considered this in Re G at [12]:

“… In the absence of full argument I am perplexed as to why, in relation to an application for leave to apply for revocation of a placement order, Parliament should there have required that the court should be satisfied of ‘a change’ in circumstances, whereas, in relation to an application for leave to apply for discharge of a special guardianship order, Parliament, by s 14D(5) of the Act of 1989, has required the court to be satisfied that there has been ‘a significant change’ in circumstances. Important though it is to ascribe a value to every word favoured by Parliament, I cannot think that, by s 24(3) of the Act of 2002, it was requiring proof only of an insignificant change in circumstances, whereas, in its insertion, by s 115 of the same Act, of s 14D(5) into the Act of 1989, it was requiring something different. On a more appropriate occasion we may have to consider whether there is indeed any significance in the absence of the word ‘significant’ in s 24(3) or whether the difference in the language is immaterial and possibly even the product of poor drafting under pressure. For the time being I proceed upon the basis that there is no relevant difference between the reference in s 24(3) to ‘a change’ in circumstances and the reference in s 14D(5) to ‘a significant change’ in circumstances. If, then, we have for practical purposes identical language, my view is that we should adopt an identical approach; and thus that, to the extent that in M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 WLR 991, [2008] 1 FLR 1093, this court gave guidance as to the approach to an application for leave to apply for revocation of a placement order, it should apply similarly to an application for leave to apply for the discharge of a special guardianship order. Indeed in Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959, this court – again in an attempt to keep things as simple as possible – suggested, at [10], that the factors relevant to the exercise of the discretion under s 24(3) of the Act of 2002, as identified in the Warwickshire case, were identical to those relevant to the exercise of the discretion whether to grant leave to apply for an adoption order under s 42(6) of the Act of 2002.”

In this case we have had the benefit of full and thoughtful argument from Ms Ruth Cabeza for the mother and from Ms Kotilaine on the question of whether the qualifier

I therefore conclude that the requirement under s. 14D (5) for a change in circumstances to be significant means what it says and, to this extent only, I would not follow the provisional reasoning in Re G. If more is needed, ‘significant’ in the context of the s. 31 threshold condition means ‘considerable, noteworthy or important’, according to the dictionary definition cited in the Guidance when the 1989 Act first came into force (The Children Act 1989: Guidance and Regulations (Volume 1, Court Orders) (HMSO 1991)), as approved by Baroness Hale in Re B (Care Proceedings: Appeal) [2013] UKSC 33; [2013] 2 FLR 1075 at [185]. As Ms Cabeza says, it does not mean trivial or unimportant, and neither does it mean exceptional, immense, or insurmountable.

Turning to the second stage, what has to be shown in a case under s. 24 (3) is broadly “a real prospect” of success: see Warwickshire at [29]. In my view, the same approach should be taken in a case under s. 14D (5). Likewise, echoing relevant elements of the guidance given in the adoption context in Re B-S (Adoption: Application of s. 47(5)) [2013] EWCA Civ 1146; [2014] 1 FLR 1035 at [74], the degree of any change in circumstances is likely to be intertwined with the prospects of success, and the greater the prospects of success, the more cogent the welfare arguments must be if leave is to be refused.

Further, following the approach taken under s. 24 (3) in Warwickshire, the welfare of the child is an important, but not paramount factor at the second stage (For no obvious good reason, the position is different under s. 47 (5): see Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616); [2007] 2 FLR 1069 at [26] and [35].) It must be remembered that at this stage the assessment concerns the effect on the child’s welfare of the application to discharge the SGO being heard or not heard: the question of whether it is in the child’s interests for the SGO to be discharged only arises if leave is granted, at which point welfare is undoubtedly paramount.

Lastly, I agree with Wilson LJ in Re G that s. 10 (9) of the 1989 Act does not formally apply to an application under s. 14D (5), and that it is not helpful to use it by analogy. The sub-section reads:

“(9)

Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to—

(a)

the nature of the proposed application for the section 8 order;

(b)

the applicant’s connection with the child;

(c)

any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and

(d)

where the child is being looked after by a local authority—

(i)the authority’s plans for the child’s future; and

(ii)the wishes and feelings of the child’s parents.”

This provision is not used when considering applications under s. 24 (3) or s. 47 (5) of the 2002 Act and it does not comfortably sit alongside s. 14D (5) either. Factor (a) is irrelevant unless it includes taking a view of the prospects of success, which must be done anyway. Factor (d) is by definition inapplicable where there is an SGO. Factors (b) and (c) are obviously matters that would be considered, but even then there is a danger that the requirement for disruption to be so extensive as to be harmful may skew what ought to be a broad evaluation of welfare and prospects of success.

The power conferred by s. 14D (5) is to be exercised firmly within the context of the overall statutory scheme governing SGOs. As Ms Kotilaine puts it, the door to reunification of children with their parents is not locked under an SGO, as it is when an adoption order is made, but the intention of the legislation is that the door will remain closed unless the court allows it to be opened to the extent of granting leave for a discharge application to be made. The parties skirmished about whether the discharge of an SGO was to be considered exceptional, but the argument goes nowhere as the concept of exceptionality commonly begs as many questions as it answers.

As to the quality of the evidence, when considering applications for leave (whether under s. 14D (5), s. 24 (3) or s. 47 (5)), the court is evaluating information that will usually be incomplete. It is not required to make findings of fact, but the applicant must provide credible evidence to show that there has been the necessary change and that leave should be granted. The court will seek to make a fair and realistic assessment, and where the available information is mixed or conflicting, it will no doubt be guided by undisputed facts and by corroborative evidence from independent sources. When assessing change, it will be important to establish the baseline facts that led to the making of the original order. Where there were care proceedings, there will be threshold findings, and where an SGO had been made in private law proceedings, there should similarly be a record of why that was the outcome.

To sum up, when a court is considering an application for leave to apply to discharge a special guardianship order, it must first consider whether the applicant has shown, by means of credible evidence, that there has been a significant change of circumstances since the order was made. If there has not been, the application will fail. If there has, the court will decide whether leave should be granted, based on a realistic evaluation of the applicant’s prospects of success in the context of the effect on the child’s welfare of the application being heard or not heard. The prospects of success must be real. The child’s welfare is an important factor but it is not the paramount consideration. The degree of any change in circumstances is likely to be intertwined with the prospects of success, and the greater the prospects of success, the more likely it is that leave will be granted. The provisions of s. 10 (9) of the 1989 Act are not applicable to an application under s. 14D (5).

The report of the Public Law Working Group identifies the issue of parental contact during an SGO as requiring careful consideration and notes that insufficient planning and support in relation to contact can have a significant impact on placement stability. It devotes one of its four recommendations for immediate change to this issue:

“Recommendation 4: Renewed emphasis on parental contact. Prior to the making of an SGO, the issue of parental contact with the child who may be made the subject of an SGO should be given careful consideration, in terms of (1) the purpose of contact; (2) the factors which are relevant in determining the form of contact, direct or indirect, and the frequency of contact; (3) the professional input required to support carers in facilitating the same over time and (4) the planning and support required to ensure the stability of the placement in the context of ongoing contact.”

Where an SGO is in effect, an application for an order regulating with whom a child is to live can only be made with leave of the court: s. 10 (7A) and (7B) of the 1989 Act. However, a parent does not require leave to apply for other forms of CAO, including an order that the child should spend time with them. As Wall LJ noted in Re S, this is unexpected:

“65.

The absence of a general requirement for leave may seem surprising. Special guardianship orders are designed to produce finality, and there is, accordingly, logic in the proposition that a parent requires the leave of the court to reopen the issue of the order itself or of the child’s residence. But, if so, one might expect similar considerations to apply to other forms of order under s 8. An essential component of the advantages produced by an adoption order for both adopters and children is that they are in most cases then free from the threat of future litigation. If the same protection is not available in respect of special guardianship orders, this may be a substantial derogation from the security provided.

66.

It is true that the court may invoke s 91(14) to place a filter on further applications by parents for other s 8 orders (including contact, and specific issue orders such as schooling). Furthermore, there is, we think, no doubt that the court has jurisdiction to make indefinite orders under s 91(14) of the 1989 Act. …

67.

In a statutory structure designed to achieve permanence and security for children and their carers outside adoption, it may seem an anomaly that the natural parent, whose parental responsibility is effectively and largely neutered, should nonetheless have an automatic right to apply to the court for s 8 relief (other than a change of residence). The very nature of such an application may be to interfere with the exercise of parental responsibility by the special guardian which is meant to be exclusive. The need to invoke s 91(14) to protect special guardians and children from the anxiety imposed by the prospect of future litigation is a possible weakness in the scheme.

68.

In any event, anomalous or not, it is plain to us that the statutory scheme for making special guardianship orders was designed generally to allow unfettered access to the court thereafter by parents in relation to all s 8 orders apart from residence. In this respect it must be accepted that special guardianship does not always provide the same permanency of protection as adoption. In our judgment, this is a factor, which, in a finely balanced case, could well tip the scales in favour of adoption.”

Re S was a case in which an SGO had been made after a foster mother had sought an adoption order. One of her reasons for preferring adoption was the protection it gave from applications by the child’s mother. In the present case, Ms Kotilaine takes issue with the statement by Wall LJ, which she describes as obiter, that a parent will have unfettered access to the court where there is an SGO. She points to s. 14C:

“14C Special guardianship orders: effect

(1)

The effect of a special guardianship order is that while the order remains in force—

(a)

a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b)

subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).”

Ms Kotilaine argues that under any SGO, the special guardians are expected to use their enhanced parental responsibility to manage contact arrangements between a child and a parent. An order increasing or otherwise changing the parameters of contact between a parent and a child interferes with this. An application for contact, particularly when allied with an application leave to discharge the SGO, amounts in substance to an attempt to vary the SGO, a step for which leave to apply is required.

I cannot accept this. As the words “subject to any other order” show, the legislation contemplates the possibility of a contact order co-existing with an SGO. I share Wall LJ’s view that a parent has an unfettered right to apply for contact with a child subject to an SGO and that this is an important detraction from the overriding parental responsibility possessed by special guardians. However, as he noted, the court has the power to restrain unmeritorious applications by making orders under s. 91 (14). I would add that it also has a general power to tailor its procedure to the circumstances of the case (see Re B (Minors)(Contact) [1994] 2 FLR 1) and also the power to dispose of abusive applications summarily. So, for example, an application for contact with a child subject to an SGO may be suitable for determination with little or no oral evidence. Or, to take an extreme example, a parent issuing an application for the child to spend most of his time with him, could expect the application to be summarily dismissed as a poorly-disguised application for residence seeking to evade the leave provision. But in the normal run of events, there is nothing objectionable in principle about a contact application issued in respect of a child subject to an SGO, and in the course of argument Ms Kotilaine came to accept this.

Against that account of the legal framework, I turn to the present appeal.

Having set out the background, the Judge gave herself a concise legal self-direction. She referred to section 14D and to the decisions in Re G and Re P. She noted that the Re G states that the court should treat the application in the same two-stage manner mandated by Re P for applications for leave to apply to revoke a placement order and that the first question is whether there has been a sufficient change of circumstances. Then:

“13.

In considering the second question, the court must consider all the circumstances. In particular the Court must think about the parent’s chances of success (of succeeding in having the special guardianship order discharged) if given leave to apply, and the impact on the child if the parent is, or is not, given leave. The child’s welfare is the Court’s paramount consideration.”

The Judge next set out the mother’s case on change of circumstances and C’s welfare. The mother argued that the short-term disruption to C of allowing the application to proceed would be worth it, when balanced against the possibility of him returning to her care. The Judge was impressed by the mother’s evidence and by the restrained way in which she had argued her case. She described her as rightly proud of herself for undertaking the challenging Complex Needs Service programme. She referred to her as having support from her partner and a network of family and friends, and as working in a challenging but very rewarding job with significant responsibility. However, in relation to change of circumstances, the Judge found:

“26.

Without wanting to take away from her efforts, and the progress she has made, I am afraid that I do not think it could be said that she is at a point now where it could be said that she will now and throughout C’s minority be in a situation where she is not vulnerable to a relapse in her mental health such that it might impact on her care of her child.

27.

I should make absolutely clear that having a history of mental health issues does not disqualify any person from being a parent, it just may signal a need for additional support. However, that is not the question I have to ask myself. I have to ask whether or not the undoubted change in her circumstances is significant enough to lead me to open the door to the Court’s discretion so far as the application is concerned.

28.

In answer to that question, I am not satisfied that the change is significant enough.

29.

Having regard to the other circumstances, [the mother] is in the same relationship, which is a source of security and stability to her. However, it should be noted that at the time of the last proceedings, this relationship was an area of concern for the

Court, in particular Mr D’s son’s behaviour towards C, his parenting capacity, and his and the mother’s ability to work openly and honestly with the local authority. There is no evidence before me at the moment to suggest that there has been a significant change here, other than the endurance of the relationship.

30 C’s situation has not changed. His grandmother and stepgrandfather are still healthy and able to provide a home for him throughout his childhood as was envisaged at the time the special guardianship order was made.

31.For all these reasons, I am not satisfied that there has been a change of circumstances sufficient to justify opening the door to the exercise of the Court’s discretion and for the application to be reopened.”

The Judge then addressed the second stage, under the heading ‘C’s welfare’. I will cite her careful analysis in full.

“32.

Even if I thought there had been sufficient changes in the mother’s circumstances, I would not give permission to apply to discharge the Special guardianship orders because I do not consider it would be in C’s welfare to reopen the proceedings.

33.1

know the mother is desperate to have the chance to care for C again. If permission were given, he might have the chance to live with her again.

In a most effective skeleton argument, prepared when she was a litigant in person assisted by her McKenzie Friend, the mother accepted that special guardianship orders are with good reason difficult to revoke, but argued that the bar should not be set so high as to make it an impossibility. She advanced nine grounds of appeal:

When granting permission to appeal, Judd J considered that there was a compelling reason for the appeal to be heard because there was very limited authority as to the application of the test to be satisfied by an applicant for permission to apply to discharge an SGO. She also considered that an appeal would have a real prospect of success in three respects:

On the first matter, Ms Cabeza identified the evidence that existed at the time the SGO was made. She contrasted that with the evidence that the Judge had before her.

At the second stage, the Judge appears to have taken the approach that if there was any risk that proceedings might undermine the stability of C’s placement, the application for permission should be dismissed. This was not the right test. There was no real assessment of the prospect of success. A range of facts were assumed against the mother, while the grandparents’ narrative was taken at face value. The statement that there would be care proceedings or placement in foster care was unsound. There is no consideration of the possible advantages of proceedings for C. Any court applying the correct test would conclude that the mother’s case had solidity and should be investigated.

As to contact, that had been set at a high level at the time of the SGO to maintain C’s strong attachment to his mother. When the mother issued a contact application it was treated by the grandparents as seeking to overturn the SGO by the back door and as an abuse of process, when its intention was only to achieve consistency of contact. The Judge nevertheless proceeded on the basis that the grandparent’s account was reliable and that the mother’s evidence was unreliable, despite the failure to promote contact in accordance with the written agreement. To reach the conclusion that the grandparents “have done all they can to promote contact between C and his mother” was perverse.

In response, Ms Kotilaine argues that, irrespective of the correct legal test, the Judge was entitled to refuse leave and her decision is certainly not one with which this court should interfere. The mother had not shown that she could provide good enough care to C throughout his minority and there were other aspects of the wider picture where she had not shown evidence of change, particularly concerning Mr D and his son. The mother had been undergoing treatment of one kind or another for 14 years, and the Judge was entitled to find that recent progress had been a good beginning, but not significant enough. If the Judge was wrong in following Re G, the correct test could only be less advantageous to the mother. At the second stage, the court had copious evidence of C’s insecurity, which meant that any destabilising events would be damaging. The grandparents perceived the mother as “waiting until she can get him back”. The Judge was entitled to find the mother’s prospects of success to be “difficult” and for it not to be in C’s interests for the SGO to be reopened. In that she accepted the grandparents’ account at the permission stage, she was obliged to found her decision on some basis, otherwise what is a judge to do?

The grandparents had been entitled to reduce contact for C’s sake. The contact application was nested in the application to discharge the SGO. It was in reality an attempt to vary the SGO and the Judge was in effect refusing leave to apply to vary the SGO when dismissing the application for a contact order. Further, the court has the power to strike out a statement of case under Family Procedure Rules 2010 rule 4.4 (b) if it is an abuse of the court’s process. The Judge was correct in determining that the application for contact was an abuse of the court process.

Special guardianship can arise in a number of ways. C’s situation is a common one, where grandparents have admirably given a home to a child who could not be looked after by his own parents. However, it is also not uncommon for the parents’ difficulties to stretch back to their own childhoods and for there to be unresolved difficulties in the relationships between the generations. This can leave the child at the heart of a complex family situation. Co-operation and trust are needed if an SGO with a high level of contact is to succeed. The design of this SGO was ambitious, placing great demands on all the adults. They agree that it is not currently working well in at least some of its aspects, though they disagree about why that is. Their differences are unfortunately amplified by members of the wider family taking sides. This situation is troubling for everyone, and most of all for young C, who is living with such a painful conflict of loyalties that he has not been able to tolerate Life Story work.

I commend the Judge for the careful thought she gave to this matter. It was very much a considered decision, as the above extracts show. She was considerate of the mother’s efforts but also motivated by her perception of C’s welfare. I am naturally reluctant to interfere with such a conscientious evaluation in a sensitive case. Despite that, I have reached the clear conclusion that the appeal should succeed, for these reasons.

For these reasons, I would allow the appeal and set aside the Judge’s orders. I would grant leave to the mother to apply to discharge the SGO and restore her application for contact, and I would direct that the applications are referred for directions and determination by another Circuit Judge, to be nominated by the Family Division Liaison Judge. In doing so, I evidently do not make any prediction about the eventual outcome. Whatever it is, I hope that all members of the family will show their devotion to C in a meaningful way by doing whatever they can to reconcile differences that may otherwise overshadow the rest of his childhood. Lord Justice Baker

I agree.