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Court clarifies terms for Special Guardianship Orders

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Coram Chambers’ Hannah Gomersall appeared for a set of paternal grandparents in an appeal, cited as P-S (Children) [2018] EWCA Civ 1407.

This decision, handed down by the Court of Appeal on 18th June 2018, confirmed that a child does not have to have lived with a prospective special guardian for a ‘considerable period’ of time before a Special Guardianship Order (“SGO”) can be made.

The local authority and children’s guardian had invited the first instance judge to make SGOs for the two children, with their respective paternal grandparents.  Instead, the judge concluded that the making of care orders was appropriate to underpin the placements with the grandparents.

The Court of Appeal found that the judge’s evaluation of the merits of each option was incomplete: he ought to have tested his own assumptions and the opinions of the professional witnesses in oral evidence and have heard evidence from the paternal grandparents.  Further, the judge had not obtained care plans from the local authority setting out the plan he wanted them to pursue.

The judge had suggested the care orders he was making were “short term”. The Court of Appeal found that if, on a welfare analysis, the judge felt there should be a testing period to ensure the relationship between the grandparents and child and the parents was such that SGOs were in the children’s interests, an appropriate route would have been to adjourn proceedings with an interim care order. The Court of Appeal confirmed that in the circumstances of this case, it would have been appropriate to extend the timetable for proceedings beyond 26-weeks. The President of the Family Division confirmed that “there must be no question of abbreviating what is necessary in terms of fair process, and necessary to achieve the proper evaluation and furthering of the child’s welfare, by concern about the possible impact of such necessary delay upon the court’s performance statistics.”

The first instance judge had also been influenced by informal guidance given by a High Court Judge, Keehan J, which suggested that an SGO should not be made unless “absent compelling reasons to the contrary, the child has been placed with the proposed SGO applicants for a considerable period”. The Court of Appeal found it was inappropriate for the judge to have relied on this informal guidance. The guidance had been relied upon without scrutiny or the opportunity for challenge. This raised questions about the appropriate form such guidance should take. Munby P commented that the multi-disciplinary Family Justice Council was the appropriate body to investigate the form of any such guidance.

Finally, the Court of Appeal concluded it was wrong not to have made appropriate provision for the grandparents to obtain effective access to justice at the final hearing. The grandparents did not know what was happening, did not have the evidence upon which the court was making a decision, were unable to take advice and were without effective access to justice. The procedure was therefore unfair.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1407.html

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