G and H (Leave to Revoke Placement Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Lewis,Lady Justice King |
| Judgment Date | 06 July 2023 |
| Neutral Citation | [2023] EWCA Civ 768 |
| Docket Number | Case No: CA-2023-000295 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 768
Lady Justice King
Lord Justice Baker
and
Lord Justice Lewis
Case No: CA-2023-000295
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT DERBY
HH Judge Williscroft
DE22C00024
Royal Courts of Justice
Strand, London, WC2A 2LL
Zoe Henry (instructed by Elliott Mather) for the Appellant
Joshua Hazelwood (instructed by Local Authority Solicitor) for the First Respondent
Nick Brown (instructed by Nelsons Law) for the Second and Third Respondents by their children's guardian
Hearing date: 24 May 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 6 July 2023.
This is an appeal by a grandmother against an order refusing her application under s.24(2)(a) of the Adoption and Children Act 2002 (“the 2002 Act”) for leave to apply to revoke placement orders in respect of two grandchildren, G, a girl aged 3, and H, a girl aged 2. The appeal raises two issues relating to such applications: (1) whether the children are automatic parties to an application for leave under s.24(2)(a), and (2) whether a change of mind by a family member about putting themselves forward as a potential carer for the children can, without more, amount to a change of circumstances within the meaning of s.24(3).
The relevant background can be summarised briefly. In April 2022, the local authority issued care proceedings in respect of G and H on the basis of a range of concerns including neglect, conflict between adults within the family, exposure to risky third parties, and an unwillingness on the part of the parents to work with professionals. In May, the children moved into foster care under interim care orders.
The appellant, who is the children's paternal grandmother (hereafter referred to as “the grandmother”), is employed as a school support worker and looks after her younger son who has some special needs. During the care proceedings, she was not assessed as a kinship carer for G and H. There is a dispute between the grandmother and the local authority as to why. Two conversations took place between the grandmother and a social worker. The grandmother's case is that after those conversations she was expecting to be assessed as a carer for the girls. The local authority's case is that she did not put herself forward as a carer.
On 7 November 2022, the care proceedings concluded with the making of care and placement orders.
A few days later, the grandmother asked the local authority whether they were going to assess her. On 17 November, the local authority responded that they were not intending to do so. On 21 December, the grandmother as a litigant in person filed an application for the discharge of the care orders and for leave to apply to revoke the placement orders.
On 10 January 2023, HH Judge Williscroft made a directions order listing a hearing for the leave application and making directions for the local authority to file a statement in reply to the application. The order included the following paragraph:
“2. At this time it is not necessary for the children to be party to proceedings or to have a Cafcass Guardian until the application for leave (or permission) has been determined.”
At the hearing 19 January 2023, the judge had the benefit of two position statements from the grandmother and of hearing submissions on behalf of the grandmother and the local authority. She gave a short ex tempore judgment which I shall recite in full:
“1. In this application there are some disputes of fact about the circumstances of [the grandmother] contacting the local authority and so forth, facts which I have not heard oral evidence to determine, but it is clear that she knew that the children were subject to proceedings, she was in contact with her son because she said she asked him to pass on messages, and it appears it is only after a Placement Order has been made, and I am sure the gravity and pain of that, that she now makes a formal application to be assessed as a carer.
2. The difficulty I have is that clearly, whatever the outcome of these discussions, she discussed the care of the children with social workers more than six months ago, and during that course of time social services' offices remained open and she knew the court proceedings were ongoing and she did not let them know that she had changed her mind and was now clearer about what she wanted to do; and she could have attended the final hearing with her son and put herself forward at that point, as a carer.
3. The court is not in the same position as if we were mid-care proceedings in which a family member comes forward and says, “I need a thorough assessment because I'm in a position to care”. We are in a position after care proceedings have ended and a plan for adoption has been supported by the court in which her wishes were not before the court; and, frankly, whatever was said by social workers, whatever was said by her son, she is the adult here who had the responsibility to make that absolutely clear. Is the reality not more likely that those concerns that she had right back in May, realistic ones because she had a lot of responsibility that she is obviously exercising very well, meant that there was not clarity until after the Adoption Order was made? I am afraid there is a point at which it is too late because her circumstances have not changed in any way over these last months and her circumstances would have to have changed in order for the court to consider her application.
4. For that reason I am afraid I have to turn down her application. I know that she did want to discuss with social workers, if I did, the prospect of some kind of contact, of some kind of communication with the children and it is part of their life story work of course that she wanted to care for them.
5. The court has not formally issued the discharge of the Care Order application but effectively I will now have to dismiss it as a result.”
On 13 February 2023, the grandmother, at that point acting in person, filed a notice of appeal against the judge's orders. The two grounds of appeal put forward were, in summary (1) the hearing was procedurally incorrect because the children's guardian ought to have been joined as a respondent and (2) the decision to refuse leave was wrong. On 19 April 2023, I granted permission to appeal against the dismissal of the application and for leave to apply to revoke the placement orders but refused permission to appeal against the dismissal of the application for discharge of the care orders. The reason for this latter decision was that under s.39(1) of the Children Act 1989 the applicant was not entitled to apply for discharge of the care order.
The law
Before addressing the issues and submissions, I must set out in some detail the relevant provisions in the statute and rules, together with citations from applicable case law.
A placement order is defined in s.21(1) of the 2002 Act as
“an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.”
Under s.21(4),
“a placement order continues in force until
(a) it is revoked under section 24,
(b) an adoption order is made in respect of the child, or
(c) the child marries, forms a civil partnership or attains the age of 18 years.”
S.24, headed “revoking placement orders”, provides, so far as relevant:
“(1) The court may revoke a placement order on the application of any person.
(2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless—
(a) the court has given leave to apply, and
(b) the child is not placed for adoption by the authority.
(3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.”
Under s.29(1),
“Where a placement order is made in respect of a child and
(a) the child is subject to a care order, or
(b) the court at the same time makes a care order in respect of the child,
the care order does not have effect at any time when the placement order is in force.”
The statutory provisions for the appointment of a children's guardian to represent a child in placement order proceedings are found not in the 2002 Act itself but in the Children Act 1989 as amended by the 2002 Act. S.41(1) of the 1989 Act, headed “Representation of child”, provides:
“For the purpose of any specified proceedings, the court shall appoint an officer of the service [Cafcass] or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.”
The proceedings falling within the meaning of “specified proceedings” are defined in s.41(6). Paragraphs (a) to (h) of the subsection list various applications under the 1989 Act. Paragraph (hh), inserted by the 2002 Act, includes proceedings
“on an application for the making or revocation of a placement order (within the meaning of section 21 of the Adoption and Children Act 2002”.
Paragraph (i) includes proceedings
“which are specified for the time being, for the purposes of this section, by rules of court”.
The principles to be applied by a court considering an application to revoke a placement order under s.24 are well established and were summarised most recently by this court in Re D (Leave to Apply to Revoke Placement Orders) [2022] EWCA 299 at paragraph 4:
“(1) There is a two-stage process. Has there been a change in circumstances? If so, should leave to apply be given?
(2) The change in circumstances does not...
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