Adoption – change of circumstances

Warwickshire County Council (appellant) v M (respondent) & (1) M (2) L (by their children’s guardian) (intervenors) [2007] EWCA Civ 1084 1 November

Care orders had been made in respect of the applicant mother’s two children and they had been placed for adoption. Eighteen months later, the mother sought leave to apply for revocation of the placement orders on the basis that her circumstances had changed. The paramountcy of the child was a consideration that did not apply to an application under s24(3) of the Children Act 2002 to revoke a placement order, because to determine such an application was to come to a decision about granting leave for the initiation of proceedings by an individual under the Act and did not fall within s1(7). Nevertheless, it did not follow that the welfare of the child was not relevant at all, even though it was not paramount. Whenever it was invested with a discretion whether to grant leave for proceedings to be issued, the court would have regard to the applicant’s prospects of success in the proposed proceedings. In conducting the discretionary exercise under s24(3), the court might usefully borrow the language of the tests set out in CPR rule 52.3(6) and ask whether the applicant would have a real prospect of success. On the establishment of a change of circumstances, a discretion arose in which the welfare of the child and the prospect of success had both to be weighed. Analysis of the prospects of success would not always, but would almost always, include analysis of the welfare of the child. The mother’s applications had no real prospect of success and it would not serve the welfare of the children for her to be granted leave to apply to revoke the placement orders.