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Appeal against a supervision order – and what happens when the Judge rejects the professional evidence

The Court of Appeal have given their decision in Re Z O’C 2015  http://www.familylawweek.co.uk/site.aspx?i=ed143389  and it raises some curious issues.

 

Firstly, this was an appeal against the making of a Supervision Order. Those don’t get appealed very often. Secondly, this was an appeal by the Guardian, and the Court sent the case back for re-hearing. Third, the parents in the case agreed when the original Judge made the Supervision Order (which would mean return home) to agree section 20 accommodation pending the appeal – which they didn’t have to – they could have pushed the Local Authority or Guardian into applying for a Stay  (meaning that the Supervision Order would not apply pending the appeal)

Also it sort of answers a question posed by one of my commentators – what happens in a case where the Judge sends the child home, and the appeal Court say -re-hearing. Where does the child go pending that re-hearing?

In this case, the child stayed in foster care.  That won’t always be the case, but the fact that the Court of Appeal did it here is fairly powerful.

 

During the hearing, the Judge was unhappy with the assessment conducted by the Local Authority, and also as the Guardian relied on it, of the Guardian’s evidence as well. That posed something of a problem, since an earlier hearing where the parents had applied for an independent assessment had been refused. By a different Judge, but the Court having ruled that an independent assessment wasn’t necessary was faced at final hearing where the assessments could be properly scrutinised and tested with assessments that were not satisfactory.

 

The detail of why the Judge felt the FAST assessment that informed the social work was flawed is not really the subject of this piece – it is all there in the judgment if you are interested. Here’s a flavour of it

 

33. The judge found himself in an invidious situation.  The District Judge had properly refused the application for an independent social worker report and had attempted to put in place through her careful case management order, provisions to rectify the deficits in the assessment process.  Unhappily, the local authority failed to comply with the order in terms of arranging for a family group conference, an important event in order to ascertain what support would be available in the event that there was rehabilitation and which would have given the guardian an opportunity to meet the extended family who would have to form part of a successful rehabilitation programme. 

34. It was also a serious deficit that, despite indicating to the contrary in the assessment, the social workers had not in fact read Dr Dowd’s report and so did not have the advantage of putting what they were seeing and hearing from the parents in context against the backdrop of the psychological assessment.

35. The local authority’s case in closing was that, notwithstanding the criticisms of the defects in the FAST assessment, the conclusion was not undermined nor was it rendered unsafe to rely upon its conclusion.  The judge said in his judgment in terms, “I respectfully disagree”.

 

These were the judicial conclusions

 

37. The judge, having dismissed all the evidence going directly to the parenting assessment, moved on to analyse over five paragraphs, a number of serious concerns he had about the father, the headlines of which were: (1) his failure to take up a parenting course; (2) his failure to attend contact; (3) his decision to go to Pakistan at a critical time in December 2013; (4) his failure to inform his family of the birth of [A]; (5) his failure to do anything about the state of the home where his child was living, which was revealed in the photographs as “disgusting”.  These issues, the judge said, brought into question the father’s motivation; a key issue, it will be recollected, in Dr Dowd’s view in determining if the father could care for the children.

38. How then did the judge conduct the welfare analysis which led him to conclude that notwithstanding those findings he was satisfied that rehabilitation to the father and mother was in the best interests of the children.  The judge said in relation to his conclusion:

i. “In my overall view too little weight has been given by the local authority and the guardian to the role that he can play in the future care of the children.  I am satisfied that his family now do know of his relationship … and of the birth of [A].  When asked in evidence about his parents’ and family’s acceptance of [A], he said as they love him, so they love [A].  I accept that.  It is hard not to.”

39. The judge went on in the following paragraph:

i. “When I come to look at [the father’s] evidence overall, even with the adverse findings I have made, I am satisfied that he intends to be available to parent his child and also [L].  He certainly has the capacity to do so, as determined by Dr Dowd …

ii. Further, in my assessment [the father] has shown that he has the motivation to change.  It may be late in the day, but I accept that that is now the position.  He has embarked on a parenting course.  He has the ability to learn from that and to put that learning into practice.”

40. The judge then referred to the fact that the father’s legal status in this country is tenuous. But concludes by saying:

i. “Overall, I find that [the father] can be a significant factor in parenting [A] and [L] together with the mother.”

41. The judge noted the efforts that the mother had undoubtedly made in improving the state of the house and in embarking on a course of cognitive behavioural therapy.

42. Finally, the judge concluded that:

i. “The local authority’s case simply does not reach the point that nothing else will do. …  I have balanced the harm which [L] and [A] have suffered or are likely to suffer against the capacity of the mother and [father] to meet their needs, with the likely effect upon both [A] and [L] of their being removed permanently from the care of their parents.  The FAST assessment was inadequate.  The social worker and the guardian relied upon it.  This has produced an analysis by them of the case that, in my judgment, is not supported by the evidence that I have found.”

43. The judge made the findings summarised above and expressed his intention to make a supervision order allowing for the return of the children to the care of the mother and father.

44. After the judgment was delivered the local authority, supported by the guardian, sought permission to appeal.  Final orders were not made at that stage and the matter was adjourned to enable an alternative care plan to be prepared for the rehabilitation of the children, which instruction was faithfully carried out by the local authority.

45. The matter came on before the judge again on 27 June 2014, when final supervision orders were made.  An agreement was made, however, for the children to remain in their current placements pursuant to section 20 of the Children Act 1989 pending the hearing of appeal.  At that hearing the judge quite properly asked those representing the local authority and the guardian if they wished him to clarify any particular issues.  They declined his invitation.

Let’s take that last point first – there’s substantial authority that it is the responsibility of an advocate to draw the Judge’s attention to apparent flaws or deficiencies in the judgment to give the Court the chance to correct those, and that is supposed to be a prelude to appeal.  If the Court offers that opportunity and the advocates don’t take it, are they precluded from issuing an appeal, or do they get a second bite of the cherry?  This is what the Court of Appeal say:-

64. Counsel referred the court to a number of authorities relating to the course to be adopted where it is believed by the parties that there has been insufficient, reasoning or analysis in a judgment.  In particular the matter was considered by the Court of Appeal in Re A & L (Appeal Fact Finding) [2011] EWCA Civ 1205, [2012] 1 FLR 134.  Munby LJ (as he then was) emphasised the responsibility of the advocate to draw to the court’s attention any material omissions in the judgment and the mirror obligation upon a judge to consider whether his judgment is defective for lack of reasons when permission to appeal is sought.

65. It should be noted that Munby LJ did not suggest that failure to comply with such obligations would lead to the dismissal of an appeal.  Clearly, no matter how frustrated a court may be by a failure on the part of advocates to seek clarification at the proper time, the sanction for such an omission cannot be such as would compromise the welfare of the child in issue.

{I wonder, idly, whether a Court of Appeal containing the author of those remarks in Re A and L might have decided this differently – we are not likely to ever know now}

So advocates should draw the attention of the Court to appeal points to give opportunity for the Judge to remedy them, but if they don’t, that is not a bar to the appeal. It probably isn’t the smartest move to irritate the Court of Appeal before you even start, but imagining that you were either struck dumb in the final hearing or someone else did it and said nothing, this is now the authority to produce to persuade the Court of Appeal that you aren’t sunk before you set off.

The Court of Appeal ultimately felt that the Judge was wrong to have dealt with the case in the way he did – they were careful not to say that the final outcome was wrong, but the route taken was not right. The case had to be sent back for re-hearing

56. In my judgment, the judge failed to carry out such a welfare evaluation. There is no analysis of risk to be found in the judgment. On the face of it, even with the positives he found in relation to the mother’s changes and the indications of same late change by the father, when the serious criticisms he had made of the father which related directly to the key issues of the father’s motivation, were factored in it is hard to see how the judge reached a decision that the children’s welfare would be protected by only a supervision order, and I further note that. 

57. In any event, I am satisfied that the judge, having discounted the welfare evidence filed, was, as was recognised at trial by counsel, left without essential evidence to enable him to carry out the welfare evaluation.  Without parenting assessment evidence in the broadest sense the judge was left without the material he needed with which to compare the benefits and deficiency of each realistic option; in this case, so far as [L] was concerned, this meant living with her grandparents or moving to her mother and stepfather; and, as far as [A] was concerned, the last resort option of adoption or alternatively rehabilitation home to his natural parents.

58. By ground 3 of the grounds of appeal, the children’s guardian argues that the judge failed adequately to consider the effect of any order upon [L].  [L], it is quite clear, was not considered separately from [A] by the judge.  [L]’s position needed separate analysis and consideration given that she has never lived with the father, whom she says she does not really know, and that queries were raised about the relationship between the father and [L] which the guardian felt needed further assessment. Specific consideration was also needed as to whether or not [L] and [A] should have separate placements.  The local authority and guardian’s care plan having provided, as I have already indicated, for adoption for [A], and for [L] to remain within the family.

59. On behalf of the guardian, it is rightly observed that rehabilitation for [L] was complicated.  She would leave her grandparents, where she has now lived for over a year, and return not to her mother and three siblings but to a household without her elder brothers and instead a “new” baby brother and a stepfather she barely knows.  Clearly, the father’s ability to build a positive relationship with [L] is the key to a successful rehabilitation plan.

60. [L] had suffered a long period of serious neglect in the care of her mother.  If she was returned to her mother’s home, a position which can only be contemplated with the support of the father, the court needed to be clear that this 24 year old man with no previous parenting experience was willing and able to care for [L] as well as his own child.  His lack of attendance at contact with [L] and criticism of his attitude towards her at contact was not reassuring upon that point, nor was the guardian’s observation that, whilst she was clear that the father loves his son, she was less convinced “at his relationship on feelings towards [L]”.

61. The case is an example of the difficulties which can result from the preparation of inadequate assessments, in this case compounded, through no fault of her own, by the late appointment of the children’s guardian. Whilst delay is always to be depreciated, the judge having identified the deficits in the assessments was wrong in failing to accede to the practical and realistic submission of counsel for the mother to adjourn the matter to enable an independent social worker report to consider the key issues of the motivation of the father and his ability to accept the considerable responsibility necessary for him to be able to support the mother. Without the father’s practical and emotional support the mother would be unable to care for either of her children, and and the court needed proper evidence as to, his ability to provide her with security and stability and to be an antidote to the mother’s difficulties in maintaining a household and environment that was safe and healthy for either of the children.

62. In her written submissions in support of the original application for the appointment of an independent social worker, counsel quoted from Re NL (A Child) (Appeal: Interim Care Order: Facts And Reasons), setting out Pauffley J’s  observations that, “Justice must never be sacrificed upon the altar of speed”,  in support of her submission that on the facts of this case the extension of proceedings beyond 26 weeks would be both reasonable and necessary.

63. It is trite law to say that delay is inimitable to the welfare of a child but, as Pauffley J’s noted, the family justice reforms are intended to promote the welfare of the children and not to render those very children more vulnerable by premature decisions being made in order to achieve the statutory timetable.

If after hearing the evidence, the Court felt that the assessments before the Court were not satisfactory to make a proper decision, the approach was to consider ordering fresh assessments and not to feel hamstrung by the 26 week regime.

I suspect that those who represent parents might be feeling that this is a Local Authority getting two bites of the cherry – they had the chance to prove their case, the burden is on them to do so and they failed. They get a second attempt to do so, rather than the parents getting their child back because the Local Authority had not proved to the Judge’s satisfaction that the concerns warranted permanent separation. It feels a little like that to me too. The parents have lost out here because the judgment wasn’t thorough enough to back up that decision. It could have been made appeal proof, but it wasn’t.   (Actually, maybe it is three bites of the cherry, given that they had their chance to speak up after the judgment about what was wrong with it, and didn’t)

There’s a nice exchange about contact notes – I find that some Judges find evidential purpose and value in contact notes, some tolerate them, some grudgingly tolerate them and some consider that they show little if anything of evidential value and disproportionate time is spent on them. It rather depends on your Judge. Surprisingly little guidance from senior Courts about what to make of them  (one might think that the fact that the Legal Aid Agency now refuse to pay counsel to read them speaks volumes – they got that tip from somewhere)

If you are an assessor, these words will be music to your ears  (unless you LIKE reading contact notes, in which case I (a) feel sorry for you and (b) am worried that you are also reading this blog and whether it compares favourably or unfavourably to the joy you find in reading contact notes)

32. Counsel for the mother lays heavy emphasis on the contact notes as an assessment tool for the judge but it is important that the value of contact notes are not overstated.  For my part, no matter what legitimate criticisms are made of the FAST assessment, it should not be expected that the assessors should in every case, read all of the voluminous contact notes; in this case made 5 days a week over many months.  The essential flavour can often, although not always, be obtained from reading a representative sample and by the observation of contact by the assessors.  Contact notes do, of course, have a value and can highlight both good and bad aspects of parenting.  In this case, they show that the mother has been assiduous in attending contact and that the quality of that contact is good.  What the contact notes cannot do, even if every single visit is closely analysed, is demonstrate whether the mother can make and sustain change day in day out, year in year out in such a way that history does not repeat itself.  Observation of contact could have given some increased insight into the relationship between the parents and of the father’s progress as a new father in handling his baby.  Unfortunately, due to his inconsistent attendance, that information was not available.

My last point is really dealt with en passant by the Court of Appeal, but I think it is quite significant. The father in this case got free legal representation to fight his case in the original care proceedings – he won  (I know, no such thing as winners and losers, yadda yadda yadda*, but he persuaded a Court to return the child). Yet in the Appeal hearing, which was just as important for him, he had no representation and had to appear in person.  The mother got legal aid and was represented, but why not both? I know, we are saving public money and we can do it with just one parent being represented. But was this really fair? I don’t think so.

 

68. The father today, as I have already indicated, is unrepresented and as a lay man it is inevitably difficult for him fully to understand the nuances of the hearing or the judgment.  I should make it clear for both his benefit and also for the mother that this court is not on any level making a determination as to whether [L] and [A] or either of them should or should not be rehabilitated to their care.  What the court is saying is that before such a decision can be made it needs the further assessment of the parents, such an assessment will no doubt cover the fact that the house is now in good order and that the parents have been to parenting classes as well as aiming to achieve a better understanding of the father’s family and the role they would play in [A]’s life if he goes home.  The matter will go to a different judge for the case to be heard again in the light of a newly commissioned independent social worker’s report and any additional evidence the designated family judge may order to be filed.  Such a report will be conducted against the circumstances as they are now, as opposed to the circumstances as they were at the trial, and will be filed in accordance with the judge’s broad case management powers.

Yadda yadda yadda

Voice of the child in pre-proceedings work

 

Work done with the Local Authority and parents before the case ever gets to Court (and ideally with the view of the case never needing to come to Court) has been important for a few years now, and will become even more important when the new PLO comes in, and there’s even more emphasis on what happened before the case got into the Court-room.

 

There have been many people saying for a number of years, that not having a Guardian, representing the child’s interests and being either the check-and-balance to a Local Authority who may be being zealous or oppressive OR an independent person who is able to impartially communicate to the parents that they are in a perilous situation if improvements are not made, is a major flaw in the pre-proceedings system.

 

It is for that reason that a pilot was set up in Coventy and Warwickshire, to have a Guardian involved in pre-proceedings meetings between the social worker and the parents.

 

The pilot is complete now, and the report is available here http://www.cafcass.gov.uk/media/167143/coventry_and_warwickshire_pre-proceedings_pilot_final_report_july_4_2013.pdf

 

{There was a third pilot area, Liverpool, and there will be a report on that in due course}

 

The positive aspects of the pilot was that the diversion rate of pre-proceedings cases where a Guardian was involved was fifty per cent   (by diversion rate, they mean, cases that ended up with the problems being sufficiently resolved by the parents that the case did not have to go to Court).  That’s a decent figure, comparing favourably to the existing Masson studies of pre-proceedings work generally diverting about 25% of cases, and the other cases in the samples in those Local Authorities where Guardians were not involved.

 

 

Of the cases that do go to Court, are they dealt with any faster? Well, the sample sizes are frankly very small to draw conclusions from – one or two “long runners” could skew the figures very badly, but they do claim that the Pre proceedings cases where there WAS a Guardian (CAFCASS Plus) finished more quickly than the ones where there was not

 

The overall average (mean) duration of the care proceedings for the Cafcass PLUS cases (excluding the complex cases) is 36.3 weeks (based on 11 cases). The duration of the comparator cases is 42.6 weeks (18 cases). There is a distinct differencebetween the Warwickshire Cafcass PLUS and comparator cases in respect of careproceedings duration. There are fewer longer running cases (more than 40 weeks) in the Cafcass PLUS sample as a whole.

 

I really think the sample size is far too small to get excited about that. And actually, is the over-arching aim of having a voice for the child in pre-proceedings work speed of resolution, as opposed to fairness and getting the work done right?

 

 

The positive diversion rates, the pilot considers largely due to two things – (1) galvanising extended family members to assist the parents, and this seems to me to be a very laudable aim and (2) parents engaging in reparative work.

 

It would have been interesting to know whether the involvement of a Guardian either increased the reach out to family members OR somehow made it more likely that the family members ‘stepped up to the plate’. And also whether the reparative work was either better focussed, or the parents more committed to making use of it.    That would be something I would hope is focussed on more, if the pilot is enhanced in numbers.

 

This bit is interesting

 

However, the pilot also provides clear evidence that where cases progressed to court on an unplanned basis and local authority work is

incomplete, then the FCA was not able overturn deficiencies in pre-­proceedings practice.

 

[i.e, where the pre-proceedings work hasn’t been done very well, having a Guardian on board didn’t fix that. That seems to me rather disappointing, that’s clearly what one would hope that a Guardian would be doing during this pre-proceedings work, making sure that the LA did the work properly and covered all of the bases, with the benefit of that fresh pair of eyes and an independent pair of eyes.]

 

 

The pilot report raises some very good questions about systemic causes of delay, two of the four of which rest on the shoulders of the Courts rather than other professionals

 

Systemic factors include:

 

1. the enduring problem of variability in the quality of social work

assessment but equally failure of courts to recognise good social work

practice which creates something of a ‘chicken and an egg’ situation;

 

2. that a number of cases appear to enter the pre-proceedings process too late, such that the window for further assessment and attempt to effect change is missed and cases then progress to court on an

unplanned/emergency basis;

 

3. the difficulty of making effective decisions about, and providing effective support to parents with fluctuating mental capacity who are not deemed to warrant the services of the Official Solicitor;

 

4. difficulties in timetabling contested final hearings due to insufficient court sitting time and problems of co-ordinating the diaries of very busy

professionals.

 

 

The Official Solicitor issue is a perennial one, and becoming even more important as we have a hard cap of 26 weeks – if you can’t fairly work with parents or ask them to make decisions/agree assessments/sign written agreements because they don’t have capacity to do so, and you can’t get the Official Solicitor representing them until you are in proceedings, it will mean that all parents who lack capacity will have less time to turn their problems round than ones who do have capacity. That seems to me to be a decent Disability Discrimination case to run at some point.

 

The pilot report echoes many of the issues already raised in the Masson report about pre-proceedings work, chiefly the overwhelming feeling of professionals involved that the Court didn’t really pay any attention to it and that Courts simply routinely commission fresh assessments with the view that any parenting or risk assessment only counts if it takes place within Court proceedings.

 

 

Independence is an important issue – there’s an obvious risk that a Guardian who participates in pre-proceedings work that culminates in care proceedings being issued might be felt by the parents to have come to the care proceedings with a view of the case already formed  (rather than being completely fresh and impartial at the time that proceedings are issued)

 

The FCA’s Independence: was it in question?

The question of whether pre-proceedings involvement of the FCA compromised the FCA’s independence was raised by a range of stakeholders encountered during the course of this project. A review of parents’ statements did not reveal any concerns about this from their representatives in the Cafcass PLUS sample. The FCAs themselves stated that they did not feel their independence was compromised by

earlier involvement, they felt able to assert an independent perspective regardless of when they became involved in a case. Of course, in a small number of cases, because the FCA who was involved in pre-­proceedings had left the service, in actual fact the

case was then allocated to another FCA as described above.

 

 

[If you’ll forgive me, I’ll continue to use the word “guardian” rather than Family Court Advisor or FCA, I just don’t like it… I still miss “Guardian ad Litem” to be frank]

 

The report overall is positive about the benefits to be achieved by involving Guardians in pre-proceedings work.  I am afraid that given the costs and resources that rolling it out nationally would require, the pilot study would have needed to be much more glowing and triumphant.  And that in particular, it would have needed to show that Guardian involvement pre-proceedings had a real bearing on the success of cases being concluded within 26 weeks.

 

I think in the current climate and the agendas that are being pursued, I don’t see this pilot being positive enough to be rolled out. But it is still an interesting report and the issues that it touches on of just how hard hitting those 26 week targets will be until there is genuine systemic change are important ones.

 

 

 

[Voting link for Suesspicious Minds in the Family Law awards – you can vote for me – or any of the other candidates, who incidentally are not offering to save your life at some unspecified point in the future, here

 

http://www.familylawawards.com/ShortlistedNominees2012   ]

“Tales of the Un-experted” (sorry)

CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful?

 http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf

 It is interesting, although on their study of whether the use of the expert was beneficial, I think it would have been amazingly helpful, rather than just asking the Guardian in the case if they found them to be beneficial (which is in itself a huge leap forward, we’ve never even done that before)  the study or a subsequent one could ask the Judge

 

  1. Did you find that report helpful in reaching your conclusions?
  2. Looking at things now, after the conclusion, was the obtaining of that report worth the waiting time?  [ie, was it “value for time”]

 

 

This is what I found interesting about it though, in the Guardian’s analysis of whether the report was beneficial or not

 100% of the drug and alcohol tests obtained were found to be helpful

100% of the paediatric reports obtained were found to be helpful

But only 75% of the psychological reports obtained were found to be helpful

 Given that psychological reports are the most cash-expensive AND time-expensive, the fact that even Guardians (who in my view were being a bit generous with how useful they found reports) found only 3 in 4 of these reports to be helpful is STAGGERING

 The report also headlines that since 2009 there has been a massive drop in the instruction of independent social workers – from about 33% of cases then to about 9% now.  (That is probably a lot more to do with them being starved out of doing the job and thus not being available than any reduction in need for them, rather than, as some of the reporting I have seen of the report, that it shows how we have been busy embracing the Family Justice reforms)

 The study also shows that, so far as Guardian’s were concerned, the quality of the pre-proceedings work done by the LA, or the prior involvement of the LA had no impact on whether or not an independent expert was instructed.

 [The report goes on to cite 3 individual cases where Guardian’s had felt that poor social work had been the cause of the instruction, but of a survey of 184 cases this is statistically not significant]

 

Actually, the Court was rather more likely to instruct an expert if there had been historical social services involvement than in cases where little was previously known about the family prior to proceedings. (still scratching my head about that one)

 

The other interesting piece of information from the study (given the drive to cut down experts) was the breakdown of what discipline contributes what proportion of the assessments commissioned

 

The largest by far was psychologists, accounting for 35% of the experts instructed  (and we know now that this means that about a quarter of those were unhelpful, or nearly 9% of all expert reports commissioned by the Courts. You’re welcome)

 

The next largest group was adult psychiatrists – coming in at 20%.  I would suggest that this is going to be a difficult group to screen out of the system. One tends to go to an adult psychiatrist because there is a mental health or substance misuse issue that requires expertise over and above that that a social worker or Guardian can give. Even a talented and skilled Guardian or social worker can’t tell you what the prognosis for mother’s bi-polar disorder will be now that she has switched to different medication.

 

 

[Honestly though, I think that gathering this information has been a really useful start, and I would really really welcome a follow-up study where the Judiciary are asked on those sample cases, whether the expert report was beneficial and represented “value for time” for that child, submitted of course in an anonymised way so that we get the statistical information but that the judical feedback is kept apart from the actual case]

And in case my clunky pun has got you hankering after seeing a silhoutted woman dancing in front of a roulette wheel whilst playing cards are thrown about, and you have been singing “doo-doo-doo, noo-no0-noo doo-doo-doo” during your reading, here it is :-

http://www.youtube.com/watch?v=Oc46Gk-6qrA

 

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…”