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You can’t take it with you?

 

 

A knotty issue about Special Guardianship

I was asked a question about Special Guardianship today, and as I had entirely two different answers within the space of ten minutes, I thought it might be worth a discussion.

The questioncan be simplified (ha!) to this :-  “If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”

 

 

My initial reaction was that the PR from Special Guardianship Order (like that of Residence and unlike that of adoption or being a birth parent) exists so long as the order exists, and thus it isn’t something which can be left to someone else in a will.

 

My second reaction was, that perhaps Parliament did intend to give Special Guardians such a power, it being an order more in character with “adoption-lite” than the “Residence plus” it has become in practice.

 

My third reaction was “I don’t know, I’ll have to find out”   which is my favourite sort of thing.

 

 

Well, firstly, there’s nothing in the Special Guardianship provisions which says that the order ends if the Special Guardians die.  (One might have thought, given that this is an order often made to people who are considerably older than the children concerned, that it should have been at least contemplated)

Here are the things that stop a Special Guardianship Order being in force :-

1. The Court granting an application to discharge under s14D

 

2. The Court making an order to discharge under s14D of its own motion

 3. That is all.

 

I find it a little bit bizarre that, for example, making a residence order to the father or mother wouldn’t discharge the SGO, but there you are.

 

According to Hershman McFarlane “Children Law and Practice”  the making of a Care Order does NOT discharge the Special Guardianship Order   (D904)  and I can find nothing to contradict them.  Common sense and logic says that surely it must, but the constructors of the legislation omitted it entirely. The making of an SGO does, however,  discharge an existing Care Order.  s91(5A)  .

 

This immediately makes me think that it is THEORETICALLY possible for a Court to make an SGO, pause for breath and make a Care Order. Who has ‘super PR’ in those circumstances?

Which wins

 

14C Special guardianship orders: effect

(1)The effect of a special guardianship order is that while the order remains in force—

(a)a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

 

 

OR

 

33 Effect of care order.

(1)Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

(2)Where—

(a)a care order has been made with respect to a child on the application of an authorised person; but

(b)the local authority designated by the order was not informed that that person proposed to make the application,

the child may be kept in the care of that person until received into the care of the authority.

(3)While a care order is in force with respect to a child, the local authority designated by the order shall—

(a)have parental responsibility for the child; and

(b)have the power (subject to the following provisions of this section) to determine the extent to which

(i)a parent, guardian or special guardian of the child; or

(ii)a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

The first says that the SGO may exercise their PR to the exclusion of anyone else with PR, the second says that the LA PR trumps everyone elses.  Which of them actually has the trump card?   Forget irresistable force versus immoveable object, this is two irresistable forces meeting head-on.

 

 

If you are a Judge, and you feel mischievous, or you’re up for retirement and just want to go out with a bang, please make an SGO, pause and then make a Care Order, so that I can see what the answer to this is.

[The wording of s14C  also raises interesting theoretical problems where the SGO is made to two people, grandma and grandpa, say, and they then separate. Whose s14C power trumps whose?]

 

But, you are saying, surely the order discharges if the child dies?  Well, to all extents and practical purposes yes, but legally speaking, no.

 

Section 14 (C) (5) of the Children Act 1989  imposes a duty on Special Guardians to notify the parents of the child if the child dies

(5)If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—

(a)each parent of the child with parental responsibility; and

(b)each guardian of the child,

but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.

 

Implying that in law, the concept of them continuing to be a Special Guardian (rather than “the former Special Guardian” ) exists.

 

 

Anyway, back to the issue.  So there’s nothing specific in the Act that says the SGO ends with the death of the Special Guardian.  Again, in practice, their exercise of the order is of course curtailed, unless Derek Acorah is on hand to impart their wishes and feelings with a Scouse flavour.

 

 

Can they appoint a Guardian to look after the child after their death?

 

 

Yes   (underlining mine)

 

 

(4)A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death].

(5)An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or—

(a)in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or

(b)in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.

(6)A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned.

 

 

But hang on, what if the Special Guardian dies, and the birth parents are still alive?  Doesn’t their existence trump the appointment?

 

Again, my underlining to aid with clarity

 

S5 (7)Where—

(a)on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or

(b)immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child or he was the child’s only (or last surviving) special guardian,

the appointment shall take effect on the death of that person.

(8)Where, on the death of any person making an appointment under subsection (3) or (4)—

(a)the child concerned has a parent with parental responsibility for him; and

(b)subsection (7)(b) does not apply,

the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.

 

 

So, a father appointing a guardian after his death would not have that guardian appointed where the mother was still alive (or vice versa), but a SPECIAL GUARDIAN who appoints a guardian for the child has that guardian’s pr kick into life as soon as the Special Guardian dies.

 

There’s a procedure in section 6(7) of the Children Act 1989 for an application to dismiss a person as a guardian  (and indeed even the guardian themselves can do this).

 

Sadly, I can’t find any caselaw where this has actually happened. Boo.  I would LOVE to be wrong, please let me know if so.   The only piece of caselaw in the whole Hershman McFarlane chapter on guardianship (which I have never read before today) is a 1959 case, saying that where there are two guardians   (yes, the Court can appoint an unlimited number of guardians) and they are in conflict, one should step down.

 

 

But what I don’t believe is the case is that the ‘super PR’  (or more accurately, the power under s14C

 

 

(b)subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

 

 

Passes to the guardian.  I think it is just PR, putting the guardian and the birth parents on a more equal footing.

 

A guardian being appointed doesn’t stop the parent seeking a residence order in their own right.  (It would be interesting, given what I suggest about whether the SGO remains in force, whether the parent has to have LEAVE to make such an application)

 

If the Court were dealing with a residence/contact/specific issue dispute, between a guardian and a birth parent, I’m not sure I would have confidence as to whose views would win out, I think it would be entirely a merit-based decision.

 

So, the ultimate answer to the question originally posed

 

“If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?”

 

Is “maybe”

 

And I managed to be wrong twice in ten minutes, despite seemingly having covered all the bases.

 

Or as the Reverend Lovejoy said “…ooooh short answer yes with an if, long answer no with a but…”

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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