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Court of Appeal emphasises that time limit for care proceedings should be extended if necessary

Family Justice Council invited to draft authoritative guidance

The Court of Appeal has handed down judgment in the important case of Re P-S ( Children) [2018] EWCA Civ 1407. The judgment is a significant decision regarding the making of final care orders instead of Special Guardianship Orders (SGOs) as well as the status of non-statutory guidance and when it should be followed. In this case, the judge at first instance considered informal guidance given by Keehan J.

The Association of Lawyers for Children applied for and was granted permission to intervene, both in writing and orally to assist the court in its consideration of the issues in this appeal. The ALC submitted that this guidance was being relied upon heavily in some parts of the country as authoritative, although the basis for the guidance was unclear and part of it appeared to be contrary to statute and case law. 

The ALC, represented pro bono by Sam Momtaz QC, Sharon Segal (both of 1 GC Family Law) and Blackfords Solicitors, intervened in the appeal to address the wide concern about the practice of making final care orders rather than SGOs and the reliance on informal guidance in proceedings. Sir Ernest Ryder, giving the leading judgment, allowed the appeal. The ALC noted that, in doing so, he relied significantly on the ALC's submissions in his decision regarding the status of informal guidance and impact of prematurely made final orders. He reiterated that the time limit for care proceedings should be extended if it is necessary to do so, and also confirmed that informal guidance of this nature must not be treated as authoritative. Sir James Munby P concurred with the main judgment but added his own commentary: re-enforcing his previous judgments stating that the timetable for proceedings must be extended if the necessary evidence is not before the court.

Both Sir Ernest Ryder and Sir James Munby P were impressed by the ALC research evidence and therefore the need for authoritative guidance about the making of SGOs. The judgment invites the Family Justice Council to draft this authoritative guidance and the ALC has been given permission to send to the Council its intervention submissions.

Executive Committee member, Elizabeth Cape-Cowens (Blackfords Solicitors), who acted for the ALC, said:

"We hope that, as a result of this judgment, the informal guidance will no longer be used authoritatively and that well considered, clear and helpful guidance will be drafted by the Family Justice Council."

For the judgment, click here.