Court of Appeal

Published December 21, 2007

M v Warwickshire County Council

Before Lord Justice Thorpe, Lord Justice Dyson and Lord Justice Wilson

Judgment November 1, 2007

On an application for leave to revoke a placement order based on a change of circumstances, a discretion arose in which the welfare of the child and the prospect of success should both be weighed and the former was not necessarily paramount.

The Court of Appeal so held in a reserved judgment in allowing an appeal brought by Warwickshire County Council against Judge Bellamy who, in Coventry County Count on August 24, 2007, granted leave to the mother to apply for revocation of placement orders, under section 24(3) of the Adoption and Children Act 2002, made by the Warwickshire Family Proceedings Court on July 21, 2006 in relation to her two children, M, aged five and L, aged three.

Mr John Vater for the local authority; Mr Alistair MacDonald for the mother; Mr Piers Pressdee for the children, intervening.

LORD JUSTICE WILSON said that at the hearing of the applications for leave, rival submissions were made about the meaning of section 24(2) and (3) of the 2002 Act.

The mother submitted that were she to establish that there had been a change of circumstances since the placement orders were made, the court was required to grant leave.

Warwickshire submitted, however, that the establishment of a change of 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 Court of Appeal in In re P (Adoption Proceedings) (The Times June 29, 2007; [2007] 1 WLR 2556) in support of its submission. His Lordship was of the clear view that from the fact that in the exercise of any discretion under section 24(3) the welfare of the child would not be paramount it did not follow that there was no discretion thereunder at all.

His Lordship could not explain why Parliament should have provided that, in the discretionary exercise which arose under section 47(5), the child’s welfare should be paramount but that, in the discretionary exercise which arose under section 24(3), it should not be paramount.

In that the judge wrongly held that, on establishment of the change in circumstances, he was obliged to grant leave to the mother under section 24(3), the resultant discretion was never exercised. The Court of Appeal would exercise the discretion and refuse the mother’s applications for leave.

Lord Justice Dyson and Lord Justice Thorpe agreed. Solicitors: Ms Victoria Gould, Warwick; Alsters Kelley, Leamington Spa; Johnson & Gaunt, Banbury.

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