The recent case of M (Special Guardianship Order: Leave To Apply To Discharge) (Rev 1) [2021] EWCA Civ 442 considers the correct approach to applications for leave to apply to discharge a Special Guardianship Order (SGO). It might be helpful for parents who are thinking about making this sort of application, because it sets out the test that applies. This post summarises what the Court of Appeal said about that test. The Court of Appeal’s decision is binding on lower courts (i.e. they have to follow it), so this is the approach that would be (or should be) applied in any application made by a parent in the Family Court.

Parents who wish to apply to discharge an SGO, in order to recover the care of the child have to obtain the court’s leave (permission). Re M was about how the court should approach that permission stage. In M’s case, the Court of Appeal decided the judge had not approached the case correctly and they overturned her decision. This means it will have to go back to be reconsidered. The more general guidance the case gives about leave applications is summarised below.

There is a two stage test :

The first stage is that a parent who wishes to obtain permission to apply to discharge the SGO must show a significant change in circumstances. The Court of Appeal decided that the word ‘significant’ is important here.

If a parent can’t show a significant change in circumstances their application will fail. If a parent shows there is a significant change in circumstances the court has to go on to stage 2.

The Court of appeal said at stage 2 :

…the court will decide whether leave should be granted, based on a realistic evaluation of the applicant’s prospects of success in the context of the effect on the child’s welfare of the application being heard or not heard. The prospects of success must be real. The child’s welfare is an important factor but it is not the paramount consideration. The degree of any change in circumstances is likely to be intertwined with the prospects of success, and the greater the prospects of success, the more likely it is that leave will be granted.

[pa 34]

Unlike applications to discharge the SGO, contact applications do not need permission. Here, the Court of Appeal clarified that :

a parent has an unfettered right to apply for contact with a child subject to an SGO and that this is an important detraction from the overriding parental responsibility possessed by special guardians. However, as he noted, the court has the power to restrain unmeritorious applications by making orders under s. 91 (14). I would add that it also has a general power to tailor its procedure to the circumstances of the case (see Re B (Minors)(Contact) [1994] 2 FLR 1) and also the power to dispose of abusive applications summarily. So, for example, an application for contact with a child subject to an SGO may be suitable for determination with little or no oral evidence. Or, to take an extreme example, a parent issuing an application for the child to spend most of his time with him, could expect the application to be summarily dismissed as a poorly-disguised application for residence seeking to evade the leave provision. But in the normal run of events, there is nothing objectionable in principle about a contact application issued in respect of a child subject to an SGO.

[pa 38]

In M’s case the judge had wrongly chucked out the contact application when she refused permission on the discharge application. Summarising the reasons for allowing the appeal, the Court of Appeal said the judge had taken great care in considering the case and setting out her reasons, but ultimately had set too high a test for permission and had wrongly jumped to conclusions at too early a stage. She had also wrongly treated the child’s welfare as ‘paramount’ (it was important but not ‘paramount’).

The guidance in this judgment should help judges avoid making similar errors.

The other notable point that emerges from the judgment, is the Court of Appeal’s observation that the judge failed to look at welfare in the round – and had she done so she might have seen that the case ‘cried out’ for

investigation and remedy, whether that is achieved by a change of attitude on the part of the family members, or by the fortification of the SGO, or by its discharge. The outcome of the Judge’s decision is that none of these will happen and the family is left to carry on as it is. In a situation in which inaction is not an option, the Judge did not appreciate that the mother’s applications offered an opportunity to resolve the current difficulties and she did not factor this important consideration into her thinking at the second stage. She instead focused exclusively on her concern about proceedings making a bad situation worse in the short term, without taking account of how the situation might be improved in the medium to long term by investigation and resolution.

[pa 52]

That, we suspect, may be applicable in many SGO cases, where contact is for whatever reason not working terribly well and where relations between parent and SG are strained.

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