Special Guardianship Order AND a Care Order

This is going to be a bit niche. If you want to read a blog post with wider applicability, may I point you towards

Wellbeing fatigue / Pink Tape instead

This case is about a curious wrinkle in the Children Act 1989, where the making of a Special Guardianship Order automatically discharges a Care Order but not vice versa. That always led to the theoretical possibility that a Court could make an SGO, and then moments later make a Care Order. And the curious issue of just who has overriding Parental Responsibility in that situation.

Theoretical that is, until now.

F & G, Re (Discharge of Special Guardianship Order) [2021] EWCA Civ 622 (30 April 2021) (bailii.org)

1. This is an appeal against a judge’s decision refusing to discharge a special guardianship order (“SGO”). The children who are the subject of the SGO are twin girls, F and G, now aged ten. Their special guardian is their former step-father, K. The appellant is the girls’ mother.
2. The unusual – indeed almost unique – feature of this case is that the girls are subject not only to the SGO but also to a care order. The principal issues arising on this appeal are whether as a matter of law the two orders can coexist and, if they can, whether in the circumstances of this case the judge was wrong to allow the SGO to continue.

I note in passing the weird situation that allows for a step-father to have a Special Guardianship Order, which is perfectly permissable in the Act, but feels like it maybe shouldn’t be.

6. At a final hearing before HH Judge Sharpe on 9 April 2020, the care proceedings concluded with the making of an SGO in favour of K and a care order in favour of the local authority. No judgment was delivered setting out the reasons for this outcome. The order recorded that all parties agreed that the two orders should be made. It further recorded that the local authority had not yet filed final care plans, directed the authority to file the plans by 20 April, and recorded that the final orders would be made “administratively” assuming no party objected on receipt of the plan. A final plan was duly filed on 16 April and no party raised any objection at that stage.

Anyway, SGO was made on 9th April 2020. By the end of May 2020, the LA were giving notice that they intended to apply to remove the twins. The step-father applied for an injunction to prevent this. By 16th June, the twins were in foster care.

So step-father was the Special Guardian whilst actively caring for the twins for just over 2 months. They had been living with him as sole carer for about a year before that.

At a final hearing in November 2020, the mother made an application to discharge the Special Guardianship Order, which continued to give K, the step-father, parental responsibility for the twins and a greater parental responsibility than she had as their mother.

10. According to a chronology prepared for this appeal, on 27 November, three days before the “final” hearing, the mother filed a notice of application for discharge of the SGO. No copy of that application was included in any of the bundles filed in connection with this appeal. At that stage, the mother had not been granted leave to make the application. In the skeleton argument prepared for the hearing on 30 November, the mother’s counsel invited the court to grant permission for an application for discharge of the SGO to be made “in the face of the court”. It seems, however, that this application was either not pursued or not granted. There is no reference in the ultimate order to the mother being granted leave to apply and in paragraph 16 of the judgment the judge recorded that he was “content to regard the matter as being one which fell within s.14D(2), Children Act 1989 whereby the court of its own motion may vary or discharge existing SGOs even in the absence of an application by any party so entitled”.

At the hearing on 30 November, the mother was the only party seeking discharge of the SGO. By that stage, the local authority and the guardian had changed their positions and concluded that there was a positive benefit to the order continuing alongside the care order. Having heard legal argument, Judge Sharpe indicated that he would not discharge the SGO. The hearing was adjourned for the delivery of a judgment which was distributed in draft before a hearing on 22 December and then ultimately handed down in its final form on 12 February 2021 setting out the judge’s reasons for refusing to discharge the SGO, together with a supplemental judgment in which he gave reasons for attaching a condition to the SGO under s.11(7) of the Children Act and for refusing the mother permission to appeal. On this latter point, the judge stated that he was following convention in allowing this Court to decide whether to grant permission, and that, but for that convention, he would have been minded to grant permission “in order that the issues raised in this case could be considered at an authoritative level”,

The order made following the hearing did not fully reflect the judge’s decision. It referred to the father’s application to discharge the order (which had not been pursued) but made no reference to the mother’s application to discharge the SGO. It recorded that:

The mother immediately filed notice of appeal against the judge’s decision refusing to discharge the SGO. On 18 February 2021, I granted permission to appeal. On 25 February, the mother filed an application to amend the grounds of appeal to include an appeal against the condition attached to the SGO.

The appeal hearing took place on 5 March 2021. The mother’s appeal was opposed by the father, the local authority and the children’s guardian. At the outset of the hearing, we granted the mother permission to amend the grounds of appeal. At the conclusion of the hearing, judgment was reserved.

I’m already intrigued as to why the Local Authority would oppose the mother’s application. I stopped reading the judgment at this point and spent ten minutes trying to think of a reason why they would. The closest I got was ‘K is an important figure for the children and removing the SGO removes his PR and thus it should continue so that he can continue to play a part in their lives’ (which seems like it could be achieved by a recital that the LA would continue to involve him, or the Court granting him parental responsibility as a step-parent under section 4A of the Children Act 1989), but I couldn’t come up with anything else.

That does seem to be the nub of it (with counsel for mother also suggesting that the Court could use inherent jurisdiction to declare that K be treated as a ‘significant person’ for the children by the Local Authority).

K’s argument also included this point :-

37…. Although he is not at present the children’s carer, it cannot be said with any certainty that he will not resume care at some point in the future. In the event that he were to resume care under the SGO at some point in the future, he would be entitled to support at a level which would not be available if he was not a special guardian. The importance to the children of allowing K to continue to be their “father” and be recognised as a parent now and in the future was central to the decision.

The three questions for the appeal were these :-

1. The mother advanced three grounds of appeal, recrafted in her skeleton argument in these terms:

(1) SGOs and care orders cannot coexist in law: Parliament never intended that they could or would coexist. The two are plainly and simply incompatible. Any formulation and/or crafting and/or interpretation of the legislative framework to reach a conclusion that they can coexist is wrong.
(2) In the alternative, if the orders are lawfully permitted to coexist, on the facts of this case the judge was wrong to allow the SGOs to continue.
(3) The imposition of the singular specified condition, on the facts of this case, was wrong both in principle and, in the alternative, in its content.

The Court of Appeal decided that

1.Yes, they could co-exist (provided they are the correct way round – SGO first, Care Order second can co-exist, Care Order first then SGO second can’t, because the SGO in statute automatically discharges the Care Order)

2. In the facts of this case, whilst the Court of Appeal felt that the Judge had considered things carefully, there were solutions to the difficulties that were not put before the trial Judge that had been explored at the appeal, and that a Care Order with a carefully worded care plan with how K was to be included and consulted and kept involved would have been the better solution.

So point 3 didn’t arise to be settled.

But the Court of Appeal also settle the ‘if there’s an SGO AND a Care Order, whose overriding PR overrides, if any?’ question that has been on nobody’s lips – I mean, it’s something I asked idly about 8 years ago in a post, but it was hardly a burning question.

Not like the burning question that I was presented with yesterday, which was “In the Blondie song, Hanging on the Telephone, is Debbie Harry’s character a stalker? And secondly, if she is, is that somehow okay if she looks like Debbie Harry?”

Blondie – Hanging On The Telephone – YouTube

To which the answers in my view are – yes, she kind of is, and that’s quite hard but yes it sort of is but no it can’t be because of the wider implications that throws up so no, no it isn’t okay. No .

Anyway, the Court of Appeal answer:-

Under s.14C(1)(b), a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility, but only “subject to any other order in force with respect to the child” under the Act, including a care order. Under s.33(3)(b)(i), the local authority has the power to determine the extent to which a parent or special guardian may exercise parental responsibility, provided it is satisfied it is necessary to do so to safeguard or promote the child’s welfare. The consequence is that, once a care order is made, a special guardian’s power to exercise exclusive parental responsibility is overridden by the local authority’s power to determine the extent to which any person holding parental responsibility may exercise it