About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 4 March 2008

Special Guardianship Resources

For an introductory article on Special Guardianship which includes the relevant sections of the Children Act see 4 Brick Court's seminar handout on the subject.

BAAF has a great platform page with information about SGOs and links to the legislation, regulations & DFCS Guidance.

The DFCS Guidance is now on the Every Child Matters website, together with the regulations and a guide to assessing the support needs of applicants.

The Court of Appeal has dealt with appeals in three important cases concerning Special Guardianship:

Re S (A Child) (2007) EWCA Civ 54 . The applicant was a foster carer with a very good relationship with mother (who was likely to have ongoing relationship with the child) but who would have preferred adoption – the SGO was upheld by the Court of Appeal.

Re A-J (A Child) (2007) EWCA Civ 55 . The child was placed with the paternal uncle & aunt who feared that the parents would not co-operate and that future litigation would be a burden. Adoption was preferred at first instance & upheld on appeal.

Re M-J (A Child) (2007) EWCA Civ 56 . The child was placed with maternal half-sister – mother with history of drug abuse and recent relapse who was not truly accepting the need for permanence away from her – adoption was preferred to SGO & s 91(14) & this was upheld on appeal.

The following principles can be distilled from these cases:
  • the fundamental differences between the status & power of adopters & special guardians must be considered when the court is applying the welfare checklist;
  • The level of care required before a SGO is made is evident from the requirement to give notice and for the local authority to prepare a detailed report;
  • The court must give full reasons for preferring one order over another;
  • Trial judges have a broad discretion when weighing the competing advantages of each type of order such that appeals will rarely be justified (in none of the above cases was the appeal successful);
  • An SGO may be imposed on a party who would prefer a different order;
  • The SGO regime is less intrusive than adoption and the fact that it therefore involves a less fundamental interference with existing relationships may be a determining factor;
  • Adoption can involve a ‘skewing or distorting’ of family relationships and this too may tip the balance in favour of the SGO;
  • On the other hand, the greater protection from future litigation afforded by the adoption order may be determinative in some cases;
  • Similarly, the greater permanence of adoption may offer the greatest welfare advantage.

    In the case of Re (A Child) [2007] EWCA Civ 1748 , the first case to reach the Court of Appeal on special guardianship, the court considered various issues relating to the special guardianship report & the investigations of the local authority. It held that it was not open to the court to define or limit the scope of the special guardianship report or restrict or reduce any of the matters which the regulations stipulated needed to be considered. The court further held that, where an prospective applicant for a special guardianship order required the leave of the court to make an application it was not possible for that person to give notice to the local authority of their intention to do so before they had obtained that permission. Finally the court decided that a judge should not invoke section 14A(9) to compel a local authority to perform its obligations under section 14A(8) at the instance of a person who needs but has not obtained permission to apply for a SGO unless section 14A(6)(b) applies.

    The CA again considered the question of the nature of the Special Guardianship report in an addendum to Re S - Re S ((a Child) (No. 2) 2007 EWCA Civ 90 . It transpired that the court at first instance had made a SGO without having the benefit of a special guardianship report. The CA held that strictly speaking a report of some sort was required and that the court could not make an order without it. However, only minimal data would have been in the report which was not already available and the gap could be plugged by filing a report which cross referenced material already filed and added any missing information. Generally whenever a special guardianship report was needed, the court should consider the form it should take if it would be right to depart from the form and if a fresh investigation was not necessary.

    In Re L (Special Guardianship: Surname) [2007] EWCA Civ 196 the Court of Appeal refused permission to a special guardian to change the surname of the child. The child was placed under an SGO with the maternal grandparents. The parents were both drug addicts (though attempting to abstain) & there were issues of domestic violence. The relationship between mother & the grandparents was complex and the father was hostile and the subject of an injunction. The grandparents wanted the child to be known by their surname. The child had already been known by several surnames and the grandparents wanted to ‘normalise’ the situation and give the child a sense of belonging. The Judge refused their application saying that it was contrary to the child’s interests to be known by a different surname and her circumstances needed to remain as faithful to the reality and truth of her situation as possible, notwithstanding the complication of having to explain the different surname to professionals dealing with her as part of the grandparents’ family unit. The Court of Appeal agreed holding that ‘honesty is the best policy. This family must honestly face up to its fractured constitution. E must learn to live with the fact that she is being brought up by her grandparents not her parents.’ The fact that the court is reminded by the legislation to consider the issue of surname when making an SGO did not create any presumption or bias towards doing so.
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