Case No: B4/2009/2253
Neutral Citation Number: [2010] EWCA Civ 300
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(LOWER COURT No: BH09P00189)
(HIS HONOUR JUDGE BOND)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 10th February 2010

Before:

LORD JUSTICE WARD
and
LORD JUSTICE WILSON
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IN THE MATTER OF G (A Child)

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Mrs Jessica Habel (instructed by Pengillys LLP, Weymouth) appeared on behalf of the Appellant, the mother.

The Respondent, the maternal grandmother, did not attend and was not represented.

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Judgment
Lord Justice Wilson:

1.	The subject of this proposed appeal is a boy, D, who was born on 9 September 2005 and who is thus aged four.  The issue has been between D's maternal grandmother and the latter's daughter, D's mother.  Today, however, we learn that there is no issue in relation to this proposed appeal.  In effect it will be determined by consent.  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.  

2.	The mother applies for permission to appeal against the refusal by His Honour Judge Bond, sitting in the Bournemouth County Court on 15 September 2009, of her application for leave to aply for discharge of a special guardianship order made in favour of the grandmother on 15 August 2006.  The grandmother now concedes, by reference to material not placed before the judge, that it would be apt to grant leave to the mother to apply for discharge of the order.  

3.	D currently lives with the grandmother in Weymouth; indeed he has done so since November 2005, when he was only two months old.  The grandmother's concession that the mother should have leave to apply for discharge of the special guardianship order in her favour in no way represents a concession that the order should in fact be discharged and thus that D should no longer reside with her.  The happy fact is, however, that, beneath the level of the law, the grandmother and the mother are on good terms and that the mother, who also lives in Weymouth, currently has contact with D on an agreed basis from every Friday afternoon until Sunday afternoon, every Wednesday afternoon for five hours and also on most Tuesdays and Thursdays.

4.	Only three months prior to the making of the special guardianship order the mother had ended a profoundly abusive relationship with D's father.  Indeed the father is now in prison in Thailand following a conviction for a serious sexual offence.  From that abusive relationship the mother had moved to another relationship as a result of which, at the time of the making of the special guardianship order, she was pregnant.  On 26 February 2007 she duly gave birth to C, a girl, who is thus now aged almost three.  The mother's relationship with C's father was also causing concern to the local authority; but in 2008 the mother ultimately ended that relationship.  She now resides alone with C and cares for her without, so it seems, any current local authority concern.  

5.	It was inevitably agreed before the circuit judge that one of the statutory provisions which he had to consider in deciding whether to grant leave to the mother to apply for discharge of the order was s.14D(5) of the Children Act 1989, inserted into it by s.115 of the Adoption and Children Act 2002.  The subsection provides that the court may not grant leave to a parent to apply for the discharge of a special guardianship order (or to other specified persons who need leave to apply under s.14D(3)) “unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order".

6.	In his written reserved judgment, handed down on 15 September 2009, the judge accepted the submission then made on behalf of the grandmother that, although there had been a change in the circumstances of the mother since 15 August 2006, it had not been "significant" within the meaning of the subsection.  Apparently the mother's successful parenting of C since her birth more than two years previously did not strike the judge as a change in circumstances which was significant.  He also observed that, although the mother had stated in evidence that she had undergone various courses in relation to parenting and to the management of abusive relationships and had received professional counselling, there was no evidence before him such as to demonstrate the extent of the work done with her or the success of it.  It appears to have been the service on behalf of the mother upon the grandmother of three letters, all dated after the hearing before the judge but before the dissemination of his judgment and never sought to be adduced on behalf of the mother as late, further, evidence before him, which has now persuaded the grandmother that she cannot oppose the grant of leave to the mother to apply for discharge.  The three letters speak of an  assiduous application by the mother since 2006 to counselling sessions, to parenting groups and to a Freedom Programme designed to help women who have been the victims of domestic violence. 

7.	Had the judge refused the mother leave to apply simply on the basis that, for the purposes of s.14D(5), he was not satisfied that there had been a significant change in circumstances since the making of the order, we might have contented ourselves with stating, perhaps in particular by reference to the fresh evidence not put before him, that such a conclusion had been wrong and that a discretion whether to grant leave had therefore arisen and that it should be exercised in favour of granting it.

8.	What, however, prompts me to offer this slight judgment is concern that, as reflected in the submissions made to the judge, there may be confusion about the proper test to apply to an application for leave to apply for discharge (or variation) of a special guardianship order under s.14D(3) and (5) of the Act.  

9.	For counsel for the mother and the grandmother had joined in submitting to the judge that, in conjunction with the initial test clearly set by s.14D(5), he should have regard to the matters specified in s.10(9) of the Act.  That subsection ostensibly relates only to the application of a person (other than the child concerned) for leave to make an application for a s.8 order.  In relation to such an application the subsection provides that, in deciding whether to grant leave, the court should in particular have regard to the nature of the proposed application for the order, to the applicant's connection with the child and, at (c), to “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".

10.	Invited by counsel to consider the matters specified in s.10(9), as well as to the threshold requirement set by s.14D(5), the judge may perhaps not be criticised for having considered himself "obliged" to do so.  In particular he considered the matter specified at s.10(9)(c), namely the risk that the proposed application would disrupt D's life to such an extent that he would be harmed by it. In that regard the judge observed that:

"It is relevant to consider not only the risk of disruption from the making of the substantive application but also the disruption there may be to the child's life if the application were to succeed."

That comment, made by a judge held in high regard in this court, causes me a degree of perplexity.  Were the substantive application for discharge of the special guardianship order to succeed, such would only be because it would serve D's welfare that the order should be so discharged: s.1(1) of the Act.  Thus, so it seems to me, and with respect, the perceived disruption to D in the event that the substantive application were to succeed is a nonsensical assessment of its effect.  

11.	More widely, however, I do not, at first sight, in any way accept that counsel were right to lead the judge to turn to s.10(9) of the Act in determining whether the mother's application for leave should succeed.  That subsection applies to persons (other than the child concerned) who need to apply for leave to apply for an order under s.8 of the Act and I see no ground, upon this prima facie analysis, for considering that the matters there specified are formally required to be weighed upon an application for leave to apply for the discharge of a special guardianship order; one or more of them may, however, happen to be relevant to the exercise of the discretion in an individual case.

12.	I consider that, where we are required to apply statutory tests expressed in much the same language, we should, if possible, approach them in the same way.  What I have in mind in particular are s.24(2) and (3) of the Adoption and Children Act 2002.  Subsection (2) requires specified persons to obtain leave to apply for revocation of a placement order; and subsection (3) disables the court from granting leave “unless satisfied that there has been a change in circumstances since the order was made".  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 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 CC 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.

13.	In the Warwickshire case, cited above, this court interpreted s.24(3) of the Act of 2002 as meaning that a change in circumstances since the order was made was a necessary, but not a sufficient, condition of leave to apply for revocation of a placement order; that, as explained at [29], the establishment of a change in circumstances gave rise to a discretion whether to grant leave, in the exercise of which the welfare of the child and the prospect of success of the proposed substantive application should both be weighed; and that, while the two considerations were linked and would often be consonant, it might be dangerous to subsume the one into the other.

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 confess that, even in the absence of the material, not presented on behalf of the mother to the judge, which now leads the grandmother to concede this appeal, I would have been persuaded, had I been in the shoes of the judge, not only that there had been a significant change in circumstances since the special guardianship order was made but that, by reference to the approach commended in the Warwickshire case, the resultant discretion should be exercised in favour of the grant of leave.

15.	At all events I understand that my Lord agrees that we should grant permission to the mother to appeal, should allow the appeal and, in lieu of the refusal of leave, should substitute a grant thereof.

Lord Justice Ward:  

16.	Indeed I do agree.

Order: Application granted; appeal allowed