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Re F & G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622

The Court of Appeal confirmed that a special guardianship order can co-exist with a care order and remitted for re-hearing the question of whether or not the SGO in this case should be discharged.



The mother (M) of twin girls born in 2010 formed a relationship with K during the pregnancy and the girls grew up believing him to be their father; they had no contact with their biological father. M and K later married, divorcing in 2017. After M formed a relationship with a violent man, the LA issued care proceedings, placing the children with K under ICOs in April 2019.

K was assessed as having extremely low cognitive ability and although he coped well with the children he needed considerable support. An SGO assessment was positive; despite his learning disability he had evidenced his ability to meet the children's emotional needs. At the final hearing of the care proceedings in April 2020 all parties agreed to the making of an SGO in favour of K and a full care order to the LA. No judgment was delivered giving the reasons for this outcome.

The placement with K broke down a few weeks later and the LA gave notice of their intention to remove the children to foster care. K applied to discharge the care orders and unsuccessfully applied for an injunction preventing the girls' removal. Following the children's placement with foster carers the LA initially sought the discharge of the SGO on the basis that K no longer needed PR. By the final hearing however the LA and guardian thought the SGO should remain in place despite there being no plan for the children to return to K. M had, without the necessary permission, filed an application to discharge the SGO. Rather than considering whether the test for permission was met the judge heard argument about whether the SGO should remain in place on the basis of the court's power pursuant to s14D(2) CA 1989. He refused to discharge the SGO but attached a condition limiting K's power to seek information from third parties while the care order was in force.

The appeal

The first ground was that SGOs and care orders cannot exist in law. This was rejected because the amendments to the Children Act 1989 made when SGOs were introduced clearly do allow for this situation:

• S91 makes it crystal clear that an SGO is not automatically discharged by the making of a final care order.

• S33(3)(b)(i), as amended, allows a LA to determine the extent to which a "parent, guardian or special guardian" may exercise PR when a care order is in force. This demonstrates Parliament's intention that an SGO could continue after the making of a care order.

• The provisions of s14D which entitle a LA designated in a care order to apply for the discharge of an SGO would be pointless if a care order operated to discharge a pre-existing SGO. The SGO must continue unless and until discharged.

• SGOs are intended to provide long-term support for the child and it would be contrary to the purpose of special guardianship if SGOs came to an end automatically on the making of a care order; whether or not they should remain in force depends on the circumstances and must be decided in accordance with the child's welfare.

The second ground, that the judge was wrong to refuse to discharge the SGO, raised more complex issues. There were welfare arguments in both directions. The judge had been particularly concerned that the children should maintain links with K, who had been treated as their father and was an important person in their lives. He worried that over time the LA might cease to communicate with him and his relationship with the children could be undermined. His attention was not drawn to an option which emerged during the appeal hearing, namely to make an order for contact under s34(2) and to invite the LA to amend its care plan to contain an express provision that K fell within the category of persons identified in s22(4), namely a person whose wishes and feelings it considered relevant when making decisions about all matters concerning the children's future. A well drafted care plan could have provided substantial protection for the children's relationship with K and his involvement in decision-making.

The CA was uneasy about allowing a decision to stand that had been arrived at "after an unsatisfactory process without full consideration of the options". Accordingly the decision was set aside and the matter remitted to the trial judge for rehearing.

The third ground, that the condition imposed on the SGO was wrong in law and in principle, did not require detailed consideration given the decision on ground 2, but would have been dismissed.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII