Court of Appeal criticises "flawed" approach adopted by judge when making special guardianship order

In E (A Child) (Special Guardianship Order: Public Law Proceedings), Re [2026] EWCA Civ 1167, Lord Justice Moylan said: “I fully appreciate the pressures that the judge was under to deliver his judgment and to conclude these proceedings which had greatly exceeded the statutory time limit. However, […] I have, regrettably, come to the conclusion that the judge’s approach was flawed.”

The appeal concerned a six-year-old child, E, whose mother and maternal grandmother challenged a special guardianship order (SGO) made by Recorder Roche KC in February 2026.

The SGO was made at the conclusion of care proceedings and in accordance with the final care plan, in which the local authority set out that it was seeking an SGO to be granted to the child’s foster carer.

The first set of care proceedings had concluded in July 2021 with an SGO in favour of the maternal grandmother. E subsequently lived with her grandmother and mother until March 2024, when she was removed from the family home and placed in foster care pursuant to an interim care order.

E’s first foster placement ended abruptly in August 2024 when the foster carer was arrested for drink driving and told police that she had left E, then aged four, alone at home. E was subsequently placed with her current foster carer and had lived there for nearly 18 months by the date of the hearing.

The mother and maternal grandmother (MGM) sought E’s return to their respective care or joint care, and each indicated that they would agree to a supervision order. The local authority, supported by the children’s guardian, sought an SGO in favour of the foster carer.

Recorder Roche KC delivered judgment orally in February 2026.

After setting out the background and the parties’ respective positions, the judge summarised the law as follows:

“[23] My paramount consideration under s.1 of the Children Act 1989 must be [E’s] welfare. In determining any question with respect to the upbringing of the child, the court’s task is to decide which course will best serve the interests of the child’s welfare. When doing so, the court must take into account all the particular circumstances relevant to that child. However, in the end the court has the single question to determine, namely what is best for the welfare of the child. There is no natural parent presumption in either private law or public law. In order to determine the single question of what is best for the welfare of the child the court must conduct a balancing exercise in which each of the competing options is weighed up against the others with the positives and negatives of each option being given due weight in the balance. The judicial exercise should not be a linear exercise whereby each option other than the most draconian is looked at in isolation. S.1(2) of the Children Act expressly states a general principle that any delay in determining any question with regard to the upbringing of the child is likely to prejudice the welfare of the child. The court must have regard to the Welfare Checklist in s.1(3) of the Children Act.”

Lord Justice Moylan observed: “It can be seen that the judge did not consider it necessary to address the issue of proportionality.”

Recorder Roche KC's analysis, which was structured by reference to the welfare checklist, reflected what he had said about the legal approach he proposed to adopt.

Lord Justice Moylan noted: "He did not address the issue of threshold because, as he explained when asked for clarification after his judgment, 'I did not consider the section 31 threshold expressly in my judgment because I not think it necessary or appropriate to make an order under section 31. I did, however, consider harm and the likelihood of harm'."

The Recorder’s ultimate conclusion was expressed as follows:

“In my judgment, taking [E’s] welfare as my paramount consideration, it is in her best interests to remain in her current placement under a special guardianship order. I do not believe that [E’s] best interests would be served by a return to the care of her mother and maternal grandmother even if they were provided with support under a supervision order. The risk of [E] suffering significant emotional harm firstly as a result of the move, secondly while living in the care of her mother and grandmother, and thirdly as a result of the possible breakdown of that placement is too great.”

On appeal, counsel for the mother’s primary submissions focused on the judge’s legal approach. It was submitted that this had failed properly to recognise: (i) the context in which the SGO was being made, and (ii) the significance of the order and proposed intervention being sought, namely one which was intended to place E permanently away from her birth family.

It was argued the judge had strayed “very far from the proper approach required for the determination of care proceedings”, where findings are made in relation to threshold, there is a proper analysis of competing options and a need for justification for removing a child permanently from their birth family.

Counsel for the mother also criticised the Recorder’s “bald statement” that there was “no natural parent presumption in either private law or public law”, a statement which, he submitted, did not reflect the true nature of the task facing the judge.

Counsel on behalf of the MGM also focused her submissions on the legal approach the judge took when determining what order to make. She submitted that this was flawed for the reasons advanced on behalf of the mother. The realistic options included E living with the MGM under the existing SGO, living with the mother or living with them both together. She pointed to the fact that both of them had said that they would accept a supervision order (judge’s emphasis).

Considering the appeal, Lord Justice Moylan observed that “both the context of the proceedings and the intrusive nature of the proposed order” meant the court should adopt broadly the same approach as it would when making a care order.

He also stressed the purpose of the threshold criteria in protecting children and families from unwarranted interference by the state.

Allowing the appeal, Lord Justice Moylan said: “First, I consider that the judge should have determined whether, and if so how, the threshold criteria were established, which would have included determining the matters relied on by the Local Authority in its final threshold document. This is in part because the care options which required analysis and determination included the making of a supervision order as well as, on the mother’s and the MGM’s respective cases, a care order. It is, however, also because this should have been included as part of the structure of the judgment so as properly to reflect that the court was determining care proceedings and that one of the options being considered was an SGO in favour of E’s foster carer.

“Secondly, I consider that the court was required to apply the conventional and well-established principles which apply when the court is deciding whether to remove a child from their family which include whether the order which the court is proposing to make is necessary and proportionate. This, again, was required so as properly to reflect the fact that the court was determining care proceedings and that the order being sought was an SGO in favour of a foster carer, an ‘intrusive’ form of order which, to quote again from H-W, ‘has consequences almost as far-reaching’ as an adoption order and certainly not less than those of many care orders.”

Lord Justice Moylan did not determine the other elements of the mother’s and grandmother’s appeals, but he said there was “considerable force” in many of them, in particular the absence of any assessment of the mother since 2024 and the need for a proper analysis of the risks relied on by the local authority if E were to return to the care of the mother and/or grandmother based on clear findings.

The mother’s and the MGM’s appeals were allowed, and the matter was remitted for rehearing.

Lord Justice Singh and Lord Justice Phillips agreed.

Lottie Winson