The legal framework
24.This is not a straightforward application in terms of the law. M makes serious allegations against MGM which were not raised, and therefore not determined, in the care proceedings which led to the special guardianship order being made. 25.The applicable statutory provisions are set out in CA 1989, s 14D. As a parent of T, M must obtain the leave of the court before making an application to discharge a special guardianship order: s14D(3). The court may not grant leave ‘unless satisifed that there has been a significant change in circumstances since the making of the special guardianship order’: s14D(5). 26.The most recent Court of Appeal authority on applications for leave to discharge a special guardianship order, which summarises previous authority and clarifies the approach, is Re M (Special Guardianship Order: Leave to Apply to Discharge) [2021] 3 WLFR 1203, [2021] EWCA Civ 442. In Re M the Court of Appeal held as follows:a.An application relating to a special guardianship order is an attempt to disturb what is intended to be a long-term status, and so the inclusion of the word ‘significant’ is s14D(5) has meaning and is not a drafting error (notwithstanding its omission from the equivalent provision in ACA 2002, s24(3)). b.The word ‘significant’ means ‘considerable, noteworthy or important.. it does not mean trivial or unimportant, and neither does it mean exceptional, immense, or insurmountable’. When assessing change, it will be important to establish the ‘baseline facts’ that led to the making of the original order. c.If the applicant cannot establish that there has been a significant change in circumstances, the application will fail. d.If the s14D(5) requirement is met, the court should consider whether the applicant has a ‘real prospect’ of success; the degree of any change in circumstances is likely to be intertwined with the prospects of success, in that the greater the prospects of success, the more cogent the welfare arguments must be if leave is to be refused.e.At the leave stage, the welfare of the child is important but not paramount. The effect on the child’s welfare at this stage means the effect of the application to discharge the special guardianship order being heard or not heard; the question of whether it is in the child’s interests for the order to be discharged only arises if leave is granted, at which point welfare is paramount. f.At the leave stage, the court is evaluating information that will usually be incomplete and will not be in a position to make findings of fact. The applicant must therefore provide credible evidence in support of his or her case, and the court’s task is to make a fair and realistic assessment of that evidence. 27.At the hearing on 8 November 2021 I directed the parties to include in their skeleton arguments for this hearing the approach which they argued that the court should take to the fresh allegations made by M against MGM. 28.M’s case is that if the court finds the s14D(5) requirement to be met (as she says it is), the allegations she has made are a significant factor pointing towards granting leave. She points to the Court of Appeal’s guidance in Re M (paragraph 52(8)) to the effect that the court must look at welfare ‘in the round’ when considering prospects of success, and says that there is a real need in this case for the allegations to be investigated and determined by the court.29.Although M’s primary case in support of a significant change in circumstances is based on changes she herself has made, it was suggested on her behalf in oral submissions that the allegations M makes against MGM could also be seen as a ‘change in circumstances’. 30.The local authority and MGM say that the allegations should carry little or no weight in the court’s consideration of the leave application. Their case is that there has not been a significant change in circumstances and so the door to a wider consideration of welfare has not been opened. If I were to decide that the s14D(5) requirement of a significant change in circumstances was met, the allegations do not justify the grant of leave because they have already been fully investigated by both the police and the local authority and a further investigation by the court is not necessary. 31.M has not applied to set aside the special guardianship order under MFPA 1984, s31F(6). Mr Burman on behalf of the local authority refers briefly to the possibility of such an application in his skeleton argument but points out that this is not a case where the fresh evidence has come to light after the order was made: M could have raised the allegations within the care proceedings but did not do so, and a substantial amount of time has elapsed since then. He suggests therefore that any such application would stand little chance of success.