Special Guardianship Orders in care proceedings: the need for threshold, necessity and proportionality

The Court of Appeal in Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167 upheld an appeal by a mother and grandmother against the making of a Special Guardianship Order (“SGO”) in favour of a foster carer at the conclusion of care proceedings. The judgment serves as a reminder that, even where welfare points strongly towards a child remaining in a settled placement, the court must still engage with the public law framework, including threshold, necessity and proportionality.

The background

The child, E (aged six at the time of appeal) had previously been the subject of care proceedings which concluded in 2021 with an SGO, by consent, in favour of her maternal grandmother. Following renewed concerns, E was removed from the family home in 2024 and placed in foster care under an interim care order in a second set of care proceedings. The initial threshold contained a number of serious allegations made by a family friend. By the time of the final hearing, these had substantially been withdrawn and a more limited threshold replied upon which centred upon mother’s mental health, family conflict, inappropriate chastisement and E being left in mother’s sole care when mother was unwell [22]. At that stage, E had been living with her current foster carer (the second foster placement in the proceedings) for almost 18 months. E was found to have developed a secure and loving attachment to her foster carer, albeit in a different religious and cultural environment to that of her birth family [50]. Regular contact with the mother and grandmother was ongoing.

There was psychiatric evidence in relation to the mother, but it was largely around 18 months old [23, 26], an independent social work assessment was of similar age and, while negative, did not pronounce on mother’s longer-term parenting capacity [28]. It was accepted in evidence that the local authority had effectively ruled out the mother at the time of those assessments [29]. There were two ISW assessments of the grandmother, the latter more negative and expressing concerns which mirrored the final threshold [31,32].

The local authority’s final care plan, supported by the Children’s Guardian and approved by the Recorder at first instance, sought an SGO in favour of the foster carer, whilst the mother and maternal grandmother had sought E’s return to family care, potentially under a supervision order.

The Judge made orders on the basis of an analysis of the welfare checklist, not making a determination on threshold as a public law order was not being made.

At the appeal, the mother and grandmother were represented either pro bono or at reduced cost. The foster carer had been joined at the appeal stage though they chose ultimately not to make submissions.

The Court of Appeal’s approach

The first instance judgment was found to be flawed in that:

(1) Threshold should have been determined. In part because the court’s options included a supervision order but also because it should be part of the structure of a judgment determining care proceedings [91].

(2) The court should have applied the principles of necessity and proportionality to reflect the fact that it was determining care proceedings and making an intrusive order [92].

Here, the case had essentially been dealt with as a welfare determination without addressing key public law issues.

Why threshold still matters

One of the most significant aspects of the judgment for local authority lawyers is the Court’s analysis of threshold.

The Court accepted that there may be cases in which threshold findings are unnecessary because the proceedings can be resolved by a purely consensual outcome. However, where there is a live dispute about whether a child should remain outside the family and where the court is being asked to sanction a long-term placement with a non-family carer, threshold will ordinarily require determination [45]-[50].

The local authority in Re E had abandoned a number of serious allegations made earlier in the proceedings, while continuing to rely on concerns about the mother’s and grandmother’s care.

The need for a section 31 determination

The Court accepted that an SGO was a very significant order in terms of its effect on a child and on the relationship between a child and her family, it having been commented in previous case law that it was “to provide legal permanence for those children for whom adoption is not appropriate” / “to achieve permanence for the child” [71-72]. It reminded of the Supreme Court dicta in Re J[1] that in a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth and that there should be a pressing social need but that it was also a serious thing for the state to fail to safeguard which may in itself constitute a breach of EHCR article 3. The threshold of s.31 Children Act 1989 seeks to balance these competing considerations by restricting compulsory intervention to cases which genuinely warrant it [74].

The context of the proceedings and the intrusive nature of the order were such that the court should have adopted the same approach as it would adopt in making a care order [76]. While it was legally correct to say that threshold did not apply as a s. 31 order was not being made, the court should “typically” determine whether the threshold was established before making the SGO (accepting that there may well be cases where this course is unnecessary or inappropriate) [77]. The reasoning for this was:

• It was only at the conclusion of the proceedings that the court would determine what order to make – here it was considering the possibility of a return home to family
• Threshold was to protect from unwarranted state interference as per Re J [79]. The making of an SGO was a significant interference, perhaps not as significant as an adoption order but providing a form of permanence in a child’s living arrangements; for example, the special guardian was able to exercise parental responsibility to the exclusion of others [80]. Adopting the approach of s.31 ensured that the court properly recognised the significant effect of the proposed order and sufficiently analysed whether it was necessary and proportionate.
• The court’s analysis and determination needed to be founded on a sufficient factual foundation, in particular in respect of the issue of harm and the level of the harm that the child has suffered or is likely to suffer; while harm also forms part of the welfare checklist, adopting the s31(2) approach as part of the court’s determination would again properly reflect the significant and intrusive effect of the proposed order. The exercise with which the court is engaged is more than a simple welfare balancing exercise [81, 82].

Necessity and proportionality

Applying the authorities of Re H-W[2] and Re B[3] , the court needs to properly address the necessity and proportionality of the order [84]. While welfare remains paramount, welfare analysis alone is not enough where the proposed order represents a substantial interference with family life [86]. The court, in delivering an appropriately structured judgment should take the approach recommended in the recent judgment of Re F[4]

(1) What was the likelihood that the children would suffer harm in parental care?

(2) What would be the consequences of such harm arising?

(3) What are the possibilities for reducing the risk or mitigating the consequences?

(4) What are the comparative welfare advantages and disadvantages of the options presented?

Or as in Re T[5]

(1) What type of harm has arisen and might arise?

(2) How likely is it to arise?

(3) What would be the consequences for the child if it did?

(4) To what extent might the risks be reduced or managed?

(5) What other welfare considerations have to be taken into account?

(6) In consequence, which of the realistic plans best promotes the child’s welfare?

(7) If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate? [87]

While not determining the following issues, the court indicated that there was considerable force in the submissions that had been made on behalf of the appellants as to (1) the absence of any assessment of the mother since 2024 and (2) the need for a proper analysis of the risks relied upon by the local authority if E were to return to her family [93].

Issues for local authority lawyers

(1) Consider carefully the threshold findings to be sought / pursued if not accepted together with the evidence that is available to support them. What facts need to be established in order to found the risks about which it is concerned? If some concerns cannot be established evidentially, how does this alter the landscape of the case? And how far should judicial or other pressure be resisted to abandon contested allegations that can be evidenced.

(2) Following from the matters being pursued by the local authority, ensure that risks have been properly analysed as per Re T. If the court does not make findings on certain issues, how does that affect the risk?

(3) Where an SGO is proposed for a foster carer, practitioners should recognise that the case may resemble adoption-lite arguments in terms of the need for explicit proportionality analysis, albeit without the lifelong legal severance associated with adoption.

(4) Address in evidence not only the reasons for the local authority’s plans but the alternatives (and how they will be supported if the court prefers them) and, critically, why the proposed plan is both necessary and proportionate. Do not assume that, with a long-standing placement, it will be assumed to be best, based upon just going through the welfare checklist.

(5) Ensure that assessments are up to date. Even if thought to be negative, what do they say about the longer term? Is there a need for updated information? If there has been a long-standing social work view, has it been properly reviewed in the light of events and any up-to-date information?

(6) What should be the role of the (potentially unrepresented) foster carer in this type of case? What, if anything, do they want to say to the court? How will they be enabled to do so without of course compromising any necessity to keep the placement confidential?

Graeme Bentley is a Principal Solicitor in Invicta Law’s Child Protection team, with over 40 years of experience in family law.

[1] Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680.

[2] H-W (Children) [2022] UKSC 17, [2022] 1 WLR 3243

[3] Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911

[4] Re F (Children: Placement Orders: Proportionality) [2026] EWCA Civ 990

[5] Re T (Children: Risk Assessment) [2025] EWCA Civ 93; [2025] 4 WLR 97; [2025] 2 F.L.R. 263: