Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact
I did an SGO hearing this week, and two things struck me on it.
The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.
But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?
The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it. [I won’t name her, but it was a fascinating issue – well, to me at least]
The question, in simple terms, is this :-
When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?
To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact. From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime
Adoption with a stranger
SGO with a relative / foster carer
Long-term fostering with a foster carer
and three possible contact quantums
Six times per year
Two or three times per year
No direct contact or once per year
Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).
SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?
On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them.
So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?
Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?
The original White Paper is interesting here – look at this bit (my underlining):-
“5.10 The Government will legislate to create this new option,
which could be called “special guardianship”. It will only be
used to provide permanence for those children for whom
adoption is not appropriate, and where the court decides it is in
the best interests of the child or young person. It will:−
give the carer clear responsibility for all aspects of caring for
the child or young person, and for making the decisions to
do with their upbringing. The child or young person will no
longer be looked after by the Council; provide a firm foundation on
which to build a life−long permanent relationship between the
carer and the child or young person; preserve the legal link
between the child or young person
and their birth family; be accompanied by a proper access to a full
range of support services including, where appropriate, financial
Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’ but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.
What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007)  EWCA Civ 55 and also RE S (A CHILD) (2007)  EWCA Civ 54
Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case
And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.
Compare RE L (A CHILD) (2007)  EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order
With RE R (A CHILD) (2005)  EWCA Civ 1128 where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.
In Re L – the contact order and various conditions, had been at the behest of the Local Authority, and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.
This is what the Court of Appeal said about that (underlining mine)
33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.
34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.
What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.
Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-
67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.
Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?
68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.
What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.
The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.
It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)
[*to me, not necessarily universally]
So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact. But how much distance remains uncertain.
[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it. I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us. Is there some part of the contact process which differs in a case of Permanence (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]
I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.
I’d thought that the application would just be a straightforward section 10(9) leave application (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from RE G (A CHILD) (2010)  EWCA Civ 300 that the Court of Appeal have ruled that it is appropriate to use the Warwickshire test from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007)  EWCA Civ 1084 that test being (I’m paraphrasing, but not by much) “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”
Using the Warwickshire test makes it very hard, without question.
So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.