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When Two Worlds Collide – the interplay of SGOs and care orders in light of F v G [2021] EWCA Civ 622

Madeleine Whelan, barrister of Fourteen, analyses a recent Court of Appeal case that highlights the flexibility of the Children Act.











Madeleine Whelan, Barrister, Fourteen

Can a special guardianship order and a care order co-exist when made at the same time, or a care order is made following an SGO? This previously unanswered question has found its solution in the recent case of F v G [2021] EWCA Civ 622

The facts of the case are necessary in order to understand the way in which the matter came before the Court of Appeal in March 2021. The children were F and G, twin girls, now aged 10. Prior to their birth, their mother had met K, who was not their biological father but nonetheless raised them as his own from their birth to 2017 when he and their mother separated. In April 2019, the girls were made subject to care proceedings after their mother formed a relationship with a violent partner. Those proceedings concluded in April 2020 with the making of an SGO in favour of K, and a care order in favour of the local authority. No judgment was given for this decision, and it was not, it seems, challenged by any party at the time. Sadly, the placement with K broke down almost immediately and the local authority informed K they intended to terminate their placement and place the girls into foster care. K subsequently made an application for discharge of the care order. The local authority therefore sought for discharge of the SGO. It was in these circumstances that the matter came before HHJ Sharp for final determination.

Those familiar with the current jurisprudence surrounding SGOs would be well-placed to read the recent decision of Re M (Special Guardianship Order: Leave to Apply to Discharge) [2021] EWCA Civ 442 in which Peter Jackson LJ sets out the following overview of SGOs and their use and purpose:

"14. Special guardianship was created in 2005 as an alternative legal status that offered greater security for children than long-term fostering, but without the absolute legal severance from the birth family that stems from adoption. According to figures published by the Ministry of Justice, some 67,000 children were made subject to SGOs in the ten years since 2011, of whom three-quarters had been the subject of care proceedings. (In the same period, some 54,000 children were adopted.) Special guardianship has been much more popular than custodianship, its predecessor under the Children Act 1975, which was described by the Law Commission in 1988 (Law Com. No. 172) as little used.

15. The White Paper published in 2000, Adoption: a new approach Cm. 5017, stated that special guardianship would:

• give the guardian clear responsibility for all aspects of caring for the child and for taking the decisions to do with their upbringing

• provide a firm foundation on which to build a lifelong permanent relationship between the child and their guardian

• be legally secure

• preserve the basic link between the child and their birth family

• be accompanied by access to a full range of support services, including where appropriate, financial support.

16. The legal framework for special guardianship was created through amendments to the 1989 Act brought about by the Adoption and Children Act 2002 ('the 2002 Act'). Section 115(1) of the 2002 Act inserted new sections 14A-F into the 1989 Act. The new sections provide for:

o who may apply for an SGO

o the circumstances in which an SGO order may be made

o the nature and effect of special guardianship orders

o support services.

17. Under section 14C, the effect of an SGO is that the special guardian will have parental responsibility for the child. Subject to any later order, they may exercise parental responsibility to the exclusion of all others with parental responsibility.

18. The purpose of special guardianship is therefore to achieve permanence for the child. The term 'permanence' has a special meaning in care planning, as defined in The Children Act 1989 Guidance and Regulations Volume 2: care planning, placement and case review, June 2015, DFE-00169-2015:

"2.3 Permanence is the long-term plan for the child's upbringing and provides an underpinning framework for all social work with children and their families from family support through to adoption. The objective of planning for permanence is therefore to ensure that children have a secure, stable and loving family to support them through childhood and beyond and to give them a sense of security, continuity, commitment, identity and belonging."

The concept of permanence is also found in the requirement under s. 31 (3B) of the 1989 Act for a court deciding whether to make a care order to consider the permanence provisions of a care plan. These include provisions setting out the long-term plan for the upbringing of the child and the way in which the plan would meet the child's needs."

The Children Act 1989 does continue to operate as the fluid and forward-thinking piece of legislation that it is and provides for situations where SGOs can be curtailed and controlled. Key examples are of course s.33(3)(b)(i) CA 1989, by which the local authority has the power, when a care order is in effect, to "determine the extent to which…a parent, guardian, or special guardian of the child…may meet his parental responsibility for him". On the face of it then – it would appear that as a matter of logic and language, Parliament had planned for the interplay of SGOs with care orders and made allowances for such occasions. Further, per s.11(7), an SGO can contain "conditions which must be complied with" – thus giving the court another tool by which to retain a level of control over the SGO.

In light of the above, however, HHJ Sharp decided, at the close of the case, not to discharge K's SGO, to remove the children to foster care and to impose a condition on K that he should not seek information from third parties regarding the children unless he had previously informed the mother and the local authority in writing. The mother immediately appealed, arguing that:

1. SGOs and care orders cannot co-exist

2. Even if they could, the court was wrong to allow them to in this case

3. The imposition of the condition was wrong in principle and / or content.

The Court of Appeal granted leave to appeal, and the matter came before them, and with it, intense scrutiny of the Children Act 1989. The Court firstly examines the provisions above, namely s.33 and s.14 and make broadly similar points in relation to parliamentary intention and language, before turning to s.91 headed 'Effect and duration of orders etc.'. The Court concludes that whilst the statute provides that the making of an SGO discharges a pre-existing care order, there is no equal provision that the making of a care order discharges a pre-existing SGO, unlike a standard s.8 child arrangements order, which is discharged upon the making of a care order. The Court (more accurately, counsel) identifies just one reported case where a care order and an SGO are made at the same time – Re A and B [2010] EWHC 3824 (Fam). However, it is a short judgment containing no substantive analysis of the legal principles. The Court were also referred to the Best Practice Guidance published in June 2020 by the Public Law Working Group, in particular para 34 which warned against the making of a supervision order alongside an SGO, as it would be considered a "red flag" that the SG support plan was simply not robust enough. They conclude that there are no cases available where the coexistence of SGOs and care orders had been directly considered.

The Court states, on the first issue of whether care orders and SGOs can co-exist in this format (that is, when both have been made together or the care order is made following the SGO), that yes – they can co-exist in this way. This conclusion is reached by drawing the strands of s.14, s.33 and s.91 together to conclude that Parliament's clear intention, particularly when inserting "special guardian" into s.33, was to contemplate the existence of care orders and SGOs simultaneously. The rationale for this may be that the SG is the only person with PR, or that they have an extremely close familial bond with the child which ought to be legally maintained – whatever the circumstances, it is the facts that must be considered should the court be asked to consider discharging the SGO where a care order remains. The Court is keen to highlight that the exclusivity of PR granted by an SGO under s.14C is in relation to exercise not entitlement or PR and is, critically, "subject to any other order in force" (unless that order is a pre-existing care order, which is dealt with by s.91). Therefore, the Court concludes that the family court does have the jurisdiction to allow care orders and SGOs to co-exist – although their likely use will, of course, be rare.

In respect of the broader decision in this case, the Court of Appeal ultimately concludes that the appeal should succeed on the second ground because the facts did not necessarily dictate that maintaining the SGO was the only available option to preserve the bond between these children and the SG. For example, the placement had broken down very soon after the making of an SGO and therefore it might not have been necessary to preserve the SGO in order to preserve the relationship. The Court of Appeal stresses that K's wishes and feelings could have been taken into account per s.22(4)(d), or an order could have been made for contact per s.34(2), all of which would have ensured the preservation of the relationship without the need to continue parental responsibility. The Court of Appeal was (rightly) concerned that HHJ Sharp had failed to "consider all the powers available to the court" when he made the decision not to discharge the SGO, and thus concluded a re-hearing was necessary to consider the available options.

So where does this leave SGOs? The Court of Appeal is keen to emphasise that the Children Act, once again, is able to meet the needs of an evolving society and evolving legal practice – the answer was there, and all the Court did was idenitfy it. It is also clear that SGOs are intended to be weighty orders which do shape the nature of family ties and therefore should not be used as a tool simply to preserve contact where the local authority fails to do so in their care plan – the Children Act's multitude of interweaving provisions allow for those interested or invested in the children, who may not have biological or legal bonds, to be adequately considered for contact and, crucially, the court maintains jurisdiction over the finalising of the care plan. If contact or preservation of a particular relationship is not properly considered within the care plan, the Court of Appeal reminds judges that they can, and should, reject it. Conversely, advocates will be familiar with the jurisdiction the court retains over the SG support plan – not robust enough? Sorry, local authority, try again. In my view, this judgment serves as a key reminder that the courts, when aware of the full power of the arsenal available in the Children Act, should never be beholden to the local authority for adequate provisions to meet each child's welfare needs.