On 20 June 2018 the Court of Appeal handed down judgment in the important case of Re P-S  EWCA Civ 1407, the lead judgment given by Sir Ernest Ryder. The Judgment addresses when it is appropriate for final care orders to be made in place of Special Guardianship Orders (‘SGOs’) in addition to the status to be attached to non-statutory and non-peer-reviewed guidance and what, if any, reliance should be placed upon it. Barbara Connolly QC represented the Local Authority at the Appeal hearing.
The case involved two boys referred to as P and S, half siblings, both of whom at the time of the appeal were living with their respective paternal grandparents. At the time the case was listed for final hearing before the trial judge they were living with other extended family members who had indicated they could not care for the children long term. The FDAC process, which had included attempts at rehabilitation, had led to the case already being outside the 26-week time limit. By the date of the final hearing the court had effectively ruled out any further attempts at rehabilitation of the children to their parents, concluding it was not a viable option (the case was not appealed on this conclusion). The local authority, supported by the CG and one of the parents, supported SGOs being made in favour of each child’s paternal grandparents. The Judge at first instance had made what he described as “time limited” but not interim care orders in respect of the children rather than SGOs. No formal application for SGOs had been made; the court had been asked, as is commonly the case, to make SGOs of its own volition. The paternal grandparents, and proposed special guardians, were not represented or party to the proceedings. The trial judge approved placement of the children with their respective paternal grandparents, however he expressed the view that it was too soon to grant SGOs because the placement was “untested”. In doing so he referred to informal “guidance” from an FDLJ from another circuit that he was aware had been circulated. He expressed the view that applications for SGOs could be made in the future after the children had been living in their respective placements for approximately a year.
The CG, supported by the local authority, sought permission to appeal on behalf of the children, which was granted. The Association of Lawyers for Children (‘ALC’) applied for and was granted permission to intervene and assisted the court in considering wider issues on the appeal, in particular the making of SGOs and the use of informal guidance. The parents, and now the paternal grandparents, were also parties to the appeal. All parties other than the mother were represented by counsel. The mother appeared in person.
It was argued (as it had been at first instance) that had the judge felt he had insufficient information to make the SGOs he should have considered making interim rather than full care orders. In essence, the grounds of appeal fell into 3 categories: (a) the lack of adequate reasoning for making care orders rather than SGOs or interim care orders; (b) the first instance judge’s apparent reliance upon informal guidance that was neither approved guidance nor peer-reviewed research capable of being scrutinised or challenged by the parties; and (c) procedural unfairness.
The Judgment dealt with the wide spread concern regarding the practice of making final care orders rather than SGOs, often as a result of time constraints affecting the ability to complete the relevant assessments or gather sufficient evidence. The Court reiterated that the time limit for care proceedings should be extended if it is necessary to deal justly with proceedings, this being preferable to moving prematurely to final care orders. Extensions of time limits should be sought to enable the parties to present the evidence required for proper consideration of SGOs. Both the lead judgment and the judgment of the President of the Family Division reiterated the analysis and guidance set out in Re M-F (Children) (Care Proceedings: Extension of Time Limit)  EWCA Civ 991.
In addition, the case addresses the practice of relying on informal guidance which has not been approved or peer-reviewed (in this case the extra judicial guidance of a FDLJ from another circuit). The Court emphasised that informal guidance of this nature is not to be treated as authoritative and should not have undue weight attached to it. The Court invited the Family Justice Council to draft authoritative guidance about the making of SGOs, which could be relied upon uniformly and with confidence in proceedings.
Click here to read the judgment in full.
It is hoped that the Family Justice Council will draft helpful guidance concerning the application of SGOs, reducing the potential reliance on informal guidance. Until then this judgment provides useful guidance to solicitors handling cases in which SGOs are being, or should be, considered.
Extensions should be sought where necessary to obtain the relevant evidence to support potential SGOs. Of course, it is preferable to consider potential Special Guardians as soon as possible in order to comply with the time limit and best serve the welfare of the child, but where they are identified late, applications to extend the time limit to gather appropriate evidence should be made. Part of the difficulty faced is the time pressure in obtaining reports and evidence given the resources available. There may be increasing use of Independent Social Workers to provide reports and gather evidence in order to combat the delays faced.
Ultimately this case emphasises that there is a balance to be struck between compliance with the time limit and the need to gather and present the court with sufficient evidence. As the President of the Family division opined at 69: ‘In relation to SGOs, as elsewhere, justice must never be sacrificed upon the altar of speed’.