In the recent case of Re: M (Special Guardianship Order: Leave to Apply to Discharge) [2021] EWCA Civ 442, the court considered the legal test for leave to apply to discharge an SGO. The Court approved the two-stage approach decided in the established case of Warwickshire, determined that a change in circumstances was necessary but not in itself sufficient and that the Court needed to weigh the welfare of the child with the prospects of success.

This appeal concerned the construction of Section 14(d) of the Children Act 1989 in the context of an appreciation of nature and affect of SGO. The appeal also concerned the circumstances in which an application for a Child Arrangements Order can be summarily dismissed.

Background

The proceedings concerned a boy ‘C’ aged 9 in October 2016. Proceedings were issued due to a breakdown of his mother’s mental health. He moved to live with his maternal grandmother and her partner (“the grandparents”). The mother was assessed by a Consultant Psychiatrist as having an emotionally unstable personality disorder and it was recommended that she required long term therapy, the time frame of which was over 12-18months. At the time of the assessment the mother did not recognise the need for the work to be undertaken. It was agreed that the mother when well was able to parent C to a good enough standard however the concern was that when she was unwell, she could not meet C’s needs. The outcome of the care proceedings was a special guardianship order being made in the grandparents’ favour without opposition. It was accompanied by written agreement which was approved by the Local Authority and the Court. The agreement which described itself as unpinning the SGO spelled out how decisions for the child would be taken and how information would be exchanged. There were also several directions made setting out the contact arrangements so that C could still retain a relationship with his mother.

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. She made a further application for contact with C, making an application for a child arrangements order. The mother submitted that her mental health was much improved however her application was opposed by the Grandparents on the basis that it was not in C’s best interests to have a change in carer. The local authority expressed concern about the SGO being revoked and the instability this could cause for the child.

In giving judgement the Court of Appeal considered the law in respect of special guardianship orders, commenting that the purpose of a special guardianship order is to achieve permanence for the child. The objective of planning for permanence is therefore to ensure that children have a secure, stable, and loving family to support them through childhood and beyond and to give them a sense of security, continuity, and commitment, identity and belonging.

In terms of discharge or variation of a Special Guardianship Order, the Court turned to Section 14(d) of the 1989 Act which is concerned with the manner in which Special Guardianship Orders can be varied or discharged. A parent seeking to discharge a Special Guardianship Order requires leave of the court which can only be given if the court is satisfied that there has been a significant change in circumstances. The court looked at what was meant by a ‘significant change in circumstances’ and cited the case of Re: G (Special Guardianship Order) [2010] EWCA Civ 300, in which it was said that when considering an application for leave 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. The first stage of the test is that there must have been a significant change in circumstances. Significant simply means ‘considerable, noteworthy or important’. The second stage is that there must be a real prospect of success. It was concluded that a change in circumstance 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. The court went on to say that the assessment concerns the affect on the child’s welfare of the application to discharge the special guardianship order being heard or not heard, the question of whether it is in the child’s interest for the SGO to be discharged only arises if leave is granted at which welfare is undoubtedly paramount.

The mother in this case had also made an application for contact in respect of C. The judged at first instance not only refused her application for leave to apply to discharge the SGO, she also concluded it was not in C’s best interests for there to be a contact order. The Court of Appeal determined that such applications should not be considered an abuse of process as a matter of principle. A parent has a right to issue an application for Child Arrangements Order (other than a lives with order) and when issued the Court must consider the application on its merits. The court concluded that that the appeal should succeed for several reasons including that the test that the judge applied for change in circumstances was too high as she considered that all of the issues with led to the making of the SGO needed to have been resolved and the judge’s conclusion followed from the test that she applied. The Court of Appeal also considered that the judge had not considered the issue of welfare correctly. The appeal was therefore allowed, and the previous orders were set aside. The mother was granted leave to apply to discharge the SGO and her application for contact was also restored.

Alpa Ghelani is an Associate solicitor in the Family department at TV Edwards. She has broad professional experience in relation to children law and special guardianship cases. Contact Alpa on alpa.ghelani@tvedwards.com or 020 3440 8184 for advice on a related query.

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