Court of Appeal rules on whether care orders and special guardianship orders can coexist

A judge sitting in the family court does have jurisdiction to allow care orders and special guardianship orders (SGOs) to coexist, although the circumstances in which this will arise are likely to be rare, the Court of Appeal has ruled.

In F & G, Re (Discharge of Special Guardianship Order) (Rev1) [2021] EWCA Civ 622 a mother of twin girls aged ten appealed against HH Judge Sharpe’s decision to refuse to discharge an SGO. The girls’ special guardian is their former step-father (K), whom they had grown up regarding as their father.

Lord Justice Baker said: “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.”

On the first issue Lord Justice Baker said: “The careful drafting of the amendments to the Children Act 1989 by which special guardianship was introduced in 2001 clearly allow for an SGO to continue after the making of a care order, be it an interim care order under s.38 or a final care order under s.31.”

The Court of Appeal judge gave his reasons for reaching this conclusion as:

1. The specific provisions of s.91 “make it crystal clear that an SGO is not automatically discharged by the making of a care order. Given the care with which that section is drafted, it is obvious that, had Parliament intended that an SGO would be discharged by the making of a final care order, it would have said so in express terms.”
2. The provisions in s.33 governing the effect of a care order would make no sense if an SGO was automatically discharged by the making of a care order. Under s.33(3)(b)(i), as amended in 2002, when a care order is in force the local authority has the power to determine the extent to which "a parent, guardian or special guardian … may exercise his parental responsibility" for the child. The words "special guardian" had been inserted into this subsection in 2002 when the statutory provisions governing special guardianship were introduced. “The fact that Parliament amended s.33(3)(b) of the Children Act so as to include the words 'special guardian' confirms that it intended that an SGO could continue after the making of a care order. This interpretation is reinforced by the terms of s.33(4) which prevents a local authority from determining the extent to which the special guardian may meet his parental responsibility for the child save where 'satisfied that it is necessary to do so in order to safeguard or promote the child's welfare'.”
3. The provisions in s.14D governing the discharge of an SGO would make no sense if an SGO was automatically discharged by the making of a care order. Where the circumstances are appropriate, a local authority "designated in a care order" with respect to the child may apply without leave for discharge of the SGO under s.14D(1)(f). Since a local authority is only entitled to apply for the discharge of the SGO if it is designated in a care order, and since the making of an SGO discharges any pre-existing care order, "the clear implication of s.14D(1)(f) is that, where a care order comes into force, any existing SGO with respect to the child remains in force until discharged under s.14D".

Lord Justice Baker said the rationale for these provisions was plain. “In some circumstances it will be appropriate for an SGO to be discharged on the making of a care order, in other circumstances not. Where an SGO has been in force for several years, the special guardians will usually have established a close relationship with the child. They may be the only persons with parental responsibility. In such circumstances, it would in all probability be wrong for the SGO to be discharged upon making a care order.

“Where, however, the SGO has only been in force for a short period, and the role of the special guardians in the child's life has not been established, it may be appropriate for the SGO to be discharged. Everything turns on the circumstances of the case and the welfare of the child.”

The Court of Appeal judge said it seemed to him, however, that there was a more fundamental principle involved.

“The purpose of an SGO is not merely to provide a stable and secure home. The passage in The Children Act 1989 Guidance and Regulations Volume 2: care planning, placement and case review cited by Peter Jackson LJ in Re M (Special Guardianship Order: Leave to Apply to Discharge) defines the objective of "permanence" in broad terms:

"The objective of planning for permanence is … to ensure that children have a secure, stable and loving family to support them through childhood and beyond and to give them a sense of security, continuity, commitment, identity and belonging."

Like adoption, special guardianship is a relationship which provides long-term support for the child, Lord Justice Baker said. “There is no reason for 'the sense of security, continuity, commitment, identity and belonging' to come to an end when the child moves away. On the contrary, the purpose and intention is that it will survive 'through childhood and beyond'. It would be contrary to the purpose of special guardianship for it to come to an end automatically upon the making of a care order.”

The Court of Appeal judge said he did not read any of the judicial observations cited on behalf of the mother as supporting the proposition that the two orders cannot as a matter of law coexist.

He also found that there was nothing in the Act to support the interpretation advanced by counsel for the mother that an SGO can coexist with an interim care order but not a final care order.

Lord Justice Baker said: “Under s.31(11), except where express provision to the contrary is made, the phrase 'a care order' in the Act includes an interim care order. The provisions of the Act under consideration in this case contain no such express provision.

“It is plainly easier to envisage circumstances in which an SGO will be in existence alongside an interim care order than circumstances in which an SGO will continue after the making of a final care order. Where care proceedings are started in respect of a child who is subject to an SGO, particularly where the SGO has been in existence for some time, it is unlikely that the SGO will be discharged at the outset of the proceedings. Instead it is more likely that it will continue alongside an interim care order until the proceedings reach or move closer to a conclusion.”

The Court of Appeal judge said that at that point, if a final care order is made, the SGO will in some cases be discharged. “But there is nothing in the wording of the Act to require it to be discharged. The range of circumstances that arise in proceedings under the Act is so wide that it would be wholly wrong to adopt an interpretation of the statute that deprives the court of a flexibility that the circumstances may require. S.1(3)(g) and (4)(b) require any court considering whether to make, vary or discharge an SGO or a care order to have regard to 'the range of powers available to the court under the Act in the proceedings in question'. It is not for this Court to impose a restriction on the range of powers provided by Parliament.”

Lord Justice Baker said he did not accept the submission that the making of the SGO on 20 April 2020 automatically brought the whole proceedings to an end and that there was no lawful basis to "re-enter the public arena" by making the care order.

“In any event, if that submission was correct, it would follow that the care order was nugatory, not the SGO. The submission provides no support for the appeal against the judge's refusal to discharge the SGO in February 2021,” he said.

The Court of Appeal judge noted that the view of the Public Law Working Group and the Family Justice Council was that the cases where it would be appropriate or necessary to make a supervision order alongside an SGO were likely to be very small in number.

“Similarly, the circumstances in which a court concludes that a care order should be made alongside an SGO are likely to be rare. The most straightforward solution will normally be to make care orders on the basis of a plan that they will be replaced by an SGO at a later date if all goes well.”

Lord Justice Baker said he was, however, not inclined to say that an SGO can never be made alongside a care order. “Given the complexity and gravity of cases that come before the family courts, it would not be right to deprive judges of an option which Parliament has made available through its carefully drafted provisions. In any event, as I have already noted, we are not concerned with an appeal against the making of the special guardianship order in April 2020 but rather the refusal to discharge it in February 2021.”

He said it followed that he rejected the first ground of appeal. “A judge sitting in the family court does have jurisdiction to allow care orders and SGOs to coexist, although the circumstances in which this is will arise are likely to be rare. The more difficult question in this case is whether the judge was wrong to refuse to discharge the order in the circumstances of this case.”

Lord Justice Baker said the more difficult question in this case was whether the judge was wrong to refuse to discharge the order in the circumstances of this case (see paragraphs 3-14).

He said the judgment itself was clear, well-structured and coherent. “But my concerns about the process by which the decision was reached, and the fact that it was based on an incomplete analysis, have persuaded me that the decision should not stand and must be set aside. The welfare checklist in s.1(3)(g) requires a court considering an application to discharge an SGO to have regard to the range of powers available under the Act. In this case, I do not consider that the judge had full regard to the range of powers available to address the issues before him.”

Lord Justice Baker therefore concluded that the appeal should be allowed on the second ground and the matter remitted to HH Judge Sharpe for rehearing. “I would propose that the mother should, if so advised, file an application seeking leave to apply to discharge the SGO and that the application be listed for a case management hearing at which the judge can give appropriate directions for the filing of evidence and a fully detailed care plan in which K's future role can be comprehensively described.

“For my part, in reaching this conclusion, I am not indicating to the judge what his ultimate order should be. There may be considerable force in the arguments summarised in his judgment for allowing the SGO to continue. At the same time, when contemplating making what would be a highly unusual combination of orders, it is incumbent on the court to consider whether the result can be substantially achieved by more orthodox means. In these circumstances such a decision should only be made after full consideration of all relevant arguments and issues.”

Lady Justice Elisabeth Laing and Lord Justice Peter Jackson agreed.