A reminder that it can but should it?
Re S (A Child) [2007] EWCA Civ 54
This short article has been prompted by a recent care case I was involved in where the central issue was whether or not the local authority’s care plan in favour of a special guardianship order to the maternal grandmother, with whom the child was living, should be granted as opposed to a full care order which was the MGM’s prime position and supported by the Guardian.
The MGM was full agreement with the plan that she should continue to look after the child but she did not want to be a special guardian because she did not wish to share responsibility with the parents.
I acted for the mother.
The brief facts of my case are that the court was concerned with one child under 10 and the application for the court was for a full care order under section 31 of the children 1989.
The LA had been involved with the child more or less throughout the entirety of the child’s life having also been involved with older siblings who were subject to private law proceedings.
Pre proceedings commenced in 2023 but did not result in any positive changes from the parents and the LA issued public law proceedings in 2024.
The LA’s concerns regarding the parents included alcohol and drug misuse, domestic abuse and mental health issues which were continuing, although improving slightly so far as the mother was concerned.
The child moved to live with the MGM at the inception of the proceedings under an Interim Supervision Order and a Child Arrangements Order.
Assessments of the parents included psychological and parenting assessments and addendum parenting assessments which all concluded negatively, and recommended that the child remain in the care of the MGM.
Initially the parents sought the return of the child of their care. The position of the LA was for the child to remain in the care of MGM under an SGO which she did not seek and never wanted as she was only prepared to care for the child under the auspices of a care order.
The parents remained in a relationship and changed their positions, and both supported the child remaining with MGM ideally with the CAO continuing or alternatively under a SGO which MGM consistently said she did not want because she did not want the responsibility of sharing parental responsibility with the parents and having to always be responsible for their family time/contact arrangements. MGM was also very concerned about the potentially dangerous unpredictability of older siblings and did not feel she could adequately protect the child in question without a care order.
The matter was listed for a contested final hearing (3 days), but after lengthy discussions at court was dealt with on submissions, mainly with regard to the appropriate type of order and the arrangements for family time/contact.
The position of the parties remained unclear on day 1 of the final hearing but, after the lengthy discussions, was subsequently confirmed as follows:
LA was still seeking SGO to MGM;
This was opposed by MGM who maintained her position that she would only continue to look after the child if there was a full care order, indicating that if necessary she would give notice that she could no longer look after the child if this meant she had to continue to share parental responsibility with the parents even if this resulted in the child having to go into foster care;
Both parents decided to fully support the position of the MGM and did not oppose the making of a full care order;
The Guardian strongly supported the need for a care order.
At the commencement of the final hearing, it had been assumed by some, regrettably me included, that the court could not, or at least should not, impose a Special Guardianship Order on an unwilling party, namely the MGM.
In the course of submissions reference was made to following dicta in Re S (A Child) [2007] Civ 54, the facts of which are not necessarily relevant to this article as the judgment in the appeal (and two other cases Re J [2007] EWCA Civ 55 and Re MJ [2007] Civ 56) all addressed the same issue: should the children concerned be adopted, or should the prospective adopters in each case be appointed special guardians?
Under the heading: In what circumstances, (if any) should the court impose a special hardship order on unwilling parties? Lord Justice Wall said this:
Para 73: “There is no doubt, as section 14A (6)(b) of the 1989 Act makes clear, that the court has power to make a special guardianship order of its own motion, where the welfare of the child is an issue in any family proceedings ….. If no application for a special guardianship order has been made by any of the parties to family proceedings, a common reason will be that no party wants such an order. The statute therefore implicitly envisages an order being made against the wishes of the parties, and in a case in which the party seeking a different order, (for example adoption) does not want to be appointed the child’s special guardian. Indeed, this is the case in all three of the current appeals”.
Para 74: “In Re M [1998] it was common ground that the court had the power to impose a residence order on unwilling parties. It is to be noted that the statutory language in section 10(1)(b) of the 1989 Act is identical to that in section14A (6)(b). This reinforces our view that the court has jurisdiction to impose a special guardianship order on an unwilling party. The real question, however, is whether or not it should do so.” (My emphasis).
Para 77: “The jurisdictional position is very clear: the court has the power to impose a special guardianship order on an unwilling party to the proceedings. Whether or not it should do so will depend upon the facts of the individual case, including the nature of the refuser’s case and it’s inter relationship with the welfare of the particular child. What seems to us clear is that if the court comes to the view on all the facts and applying the welfare checklist under the 1989 Act, (including the potential consequences to the child of the refuser, implementing the threat to refuse to be appointed a special guardian) that a special guardianship order will best serve the welfare interest of the child in question, that is the order which the court should make”. (Again, my emphasis).
In my case the parties were given as much time as was needed for discussions, which included protracted and at times difficult discussions about the arrangements for family time/contact.
After lengthy submissions, the judge fully accepted that she was able to make a special guardianship order, but decided on the facts of the case and having carefully considered the welfare checklist, that the appropriate order was a full care order, this being the most appropriate order to ensure the best welfare interests of the child (namely that the child would remain with the MGM which was agreed by all) and to maintain regular, albeit supervised, family time with the parents.
The LA was given time to consider the decision, but subsequently agreed to amend its care plan for a full care order.
As an additional note para 74 of the judgment confirms that, if the court can impose a Residence Order it can also impose a Child Arrangements Order on an unwilling party by applying the same test if it is in the child’s best interests to do so.
For more information please contact clerks@becket-chambers.co.uk
