Care proceedings and the need for the court to determine threshold when making a special Guardianship order

Children – Public Law

25 September 2019

The impetus for this article arises from care proceedings in which I was recently involved resulting in an unopposed SGO being made to the foster carers.

I was instructed on behalf of the child who was aged 4 at the time of the final hearing.

The background is not important but the threshold issues included neglect (emotional and physical), lack of parental supervision and alcohol and drug misuse.

The father was initially involved in the proceedings but soon disengaged, his legal aid was discharged and he took no further part in the proceedings.

There had been an early interim fact finding hearing when some findings had been made. The mother subsequently made further concessions to threshold but wanted the child returned to her care.

The foster carers were positively assessed as Special Guardians.

The LA’s final care plan, supported by the Children’s Guardian, was for SGOs in favour of the foster carers without the need for a Supervision Order.

Prior to the final hearing the mother made the difficult decision that she would neither consent to nor oppose the LA’s plan and the matter was listed for a short final hearing.

At this hearing the LA’s position was that the child would remain in the care of the foster carers and that no public law order was being sought.

After much discussion relating to the Special Guardianship Support Plan all outstanding issues were agreed and the court was invited by all parties and the foster carers, who had been invited to attend the hearing, to make the order proposed.

The court agreed and, following a short judgment, made a Special Guardianship Order in favour of the foster carers.

In the course of submissions Counsel for the mother submitted that it was not necessary for the court to deal with threshold as only private law orders were sought. This was not challenged by the court or by the LA or myself and threshold was not further considered during the hearing.

The issue arose after the hearing when, in the course of email exchanges in relation to the draft order, the solicitor for the LA raised the need to agree a statement of threshold facts to be annexed to the order. Those representing mother objected as this had not been pursued at the hearing.

No agreement was reached as to how to resolve the issue and the court agreed to list the matter for further consideration. The matter was treated as part heard.

I was unable to attend the resumed hearing but my attendance was excused. The child was represented by the child’s solicitor.

The main issues were:-

(i) Should the local authority be permitted to pursue the issue of threshold and seek specific findings?

(ii) If this was permitted, what findings should be made and what evidence/witnesses the court might have to hear.

(iii) Following resolution of these issues, whether the court would have to reconsider the terms of a final order already made.



The position of the LA was that:

There had been “fundamental miscommunication and/or misunderstanding” at the final hearing which it was necessary for the court to rectify before approving final orders.

The LA had believed that threshold was not in dispute and that it was not necessary for the court to hear evidence or make findings.

The matter had been listed for a final hearing with a clear plan for a SGO which was accepted by the mother.

The case had been heard and the order made within the ambit and context of care proceedings

The initial state intervention was through the issue of care proceedings as were the placement of the child and the making of the SGO to the foster carers.

The final hearing had taken place within care proceedings.

The threshold criteria was the “gateway” to such proceedings and the foundation for the court to proceed to analyse the child’s welfare needs and carry out the appropriate balancing exercise, to enable the court to intervene in the mother’s right to care for her child and for the child’s right to be cared for by the mother and to make appropriate final orders, public or section 8 private law.

The LA accepted that a SGO was a private law order and that it was not seeking any public law order but submitted that in order for the court to make a proportionate welfare decision for the child within care proceedings it was necessary to first establish that the threshold criteria had been crossed.

The LA submitted that it would be necessary to know, for future reference, what the concerns about the mother’s parenting had been, particularly as she would still be having contact.

The LA further submitted that the issue of threshold being made out had always been considered an essential part of the hearing process.

The LA reminded the court that there had been a fact finding hearing with findings made.

The mother submitted that:

The court should not permit the local authority to pursue issues of threshold at this stage.

It was submitted that the decision whether to allow the issues to be pursued was one of case management and that accordingly the court’s starting point should be the, ‘overriding objective’ set out in Rule 1.1 of the Family Procedure Rules 2010.

1.1     The overriding objective

(1)     These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2)     Dealing with a case justly includes, so far as is practicable –

(a)     ensuring that it is dealt with expeditiously and fairly;

(b)  dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)     ensuring that the parties are on an equal footing;

(d)     saving expense; and

(e)  allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.’

The court was also reminded of the following terms of Rule 1.4 of the 2010 Rules;

1.4     Court’s duty to manage cases

(1)     The court must further the overriding objective by actively managing cases.

(2)     Active case management includes – 

(a)     setting timetables or otherwise controlling the progress of the case;

(b)     identifying at an early stage –

(i)     the issues; and

(ii)     who should be a party to the proceedings;

(c)     deciding promptly –

(i)     which issues need full investigation and hearing and which do not; and

(ii)     the procedure to be followed in the case;

(d)     deciding the order in which issues are to be resolved


(i)     considering whether the likely benefits of taking a particular step justify the cost of taking it;


(m)     giving directions to ensure that the case proceeds quickly and efficiently.’

It was further submitted on behalf of the mother, that in any proceedings, the court’s key case management task was that of identifying the issues that do, or do not, have to be determined and that the identification of these issues is the prerogative of the court, not of the parties.

The court was referred to the following observations of Ryder LJ in the case of Re W (a child) (care proceedings: welfare evaluation: functions of local authority) [2013] EWCA Civ 1227 (emphasis added) –

[72] Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court.’

Accordingly, it was submitted, it did not lie with the local authority to require the issue of threshold, or indeed any other issue, to be considered by the court and that in the present case it was not, ‘necessary’ for the court to determine issues of threshold. These submissions were made on the following basis –

(i) The clear terms of the Children Act 1989 limit the requirement to find threshold to those cases where the court is considering making a public law order under Part III of the Act. The relevant statutory provision reads as follows –

‘(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.’

There is no equivalent requirement attached to section 14A of the Act, which sets out the circumstances in which a Special Guardianship Order can be made.

(ii) Furthermore, the court’s power to make a Special Guardianship Order in the present case was not dependent on any particular disposal of the local authority’s application for a Care Order. In making a Special Guardianship Order in favour of the foster carers the court was, it was submitted, exercising its power to do so under section 14A(6) of the 1989 Act, the relevant parts of which read as follows –

‘(6) The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—


(b) the court considers that a special guardianship order should be made even though no such application has been made.’

(The court was reminded that an application for a Care Order falls within the definition of, ‘family proceedings’ for this purpose by reason of section 8(3) and 8(4) of the 1989 Act.)

(iii) It was accordingly submitted that the need to find threshold did not arise before the court considered the ‘welfare’ issues relevant to making the order sought, which were not contentious.

The position of the Guardian at the resumed hearing, accepted by the court, was to remain neutral on the basis that the issue of threshold was one between the LA and the mother.



In a very short judgement the District Judge who had dealt with the matter, after referring to and briefly summarising the submissions made on behalf of the LA and the mother, dismissed that LA’s application on the basis that the court did not need to make findings because it was not making any public law orders.

It was not a requirement as a matter of law that threshold be found when the court was not being asked to make a public law order.

The judge also refused the LA’s application for leave to appeal on the basis that the court had considered sections 31 and 14 of the Children Act and that the LA had not advanced any case law to contradict the submissions made on behalf of the mother.

The court had to be proportionate and there was enough information before the court for it to make the SGO without the need to, effectively, reopen the case for a fact finding hearing on threshold.


Having dealt with many cases which have resulted in SGOs being made in similar circumstances and then acquiescing to the LA’s insistence to agree a form of threshold for the order and “for future reference” I may now take a more robust view.

It is interesting that there does not appear to be any helpful authority on the point in issue and perhaps an appeal may be necessary to obtain some more definitive guidance.




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