Background
E was born in March 2020. Following earlier care proceedings prompted by concerns about her mother’s mental health, a special guardianship order was made in 2021 in favour of E’s maternal grandmother. E then lived with her mother and grandmother until March 2024, when further concerns led the local authority to begin new care proceedings and place her in foster care.
At the final hearing, the local authority and children’s guardian supported placing E permanently with her current foster carer under a special guardianship order. The mother and grandmother sought E’s return to one or both of them, indicating that they would accept a supervision order. Recorder Roche KC instead made the order sought by the local authority, applying what he described as a welfare-balancing exercise without determining the statutory threshold under section 31(2) of the Children Act 1989 or expressly addressing proportionality.
The Court’s Holding
The Court of Appeal unanimously allowed the mother’s and grandmother’s appeals. It held that an order placing a child with a non-family foster carer under a special guardianship order at the conclusion of care proceedings is a significant and intrusive interference with family life. The court therefore must apply the established principles governing removal from a child’s family, including whether the proposed order is necessary and proportionate; a simple welfare balance is insufficient.
Although section 31(2) does not legally govern the making of a special guardianship order itself, the court should typically determine whether its threshold criteria are satisfied when considering such an order at the end of care proceedings. That determination was required here because the realistic options included supervision and care orders and because it would provide the necessary factual and analytical foundation for assessing harm and state intervention. The Court of Appeal did not decide the appellants’ additional challenges concerning the evidence and risk assessment, though it said several had considerable force. It set aside the order and remitted the case for rehearing.
Key Takeaways
- When a local authority proposes a special guardianship order in favour of a non-family foster carer at the end of care proceedings, the court must assess whether that intervention is necessary and proportionate.
- A court should typically determine the section 31(2) threshold in this setting, particularly where supervision or care orders remain among the proposed options, even though the threshold is not a legal prerequisite to the special guardianship order itself.
- The Court of Appeal resolved the case on errors in the judge’s legal framework; it did not determine the separate challenges concerning outdated assessments, relapse risk, safeguards, or disputed family facts.
Why It Matters
The judgment confirms that special guardianship cannot be treated as an ordinary choice between competing placements when it would permanently place a child outside the birth family following state-initiated care proceedings. Its substantial effect on parental responsibility and family life demands the same broad discipline of factual findings, necessity, and proportionality that applies when courts consider other intrusive child-protection orders.
The decision also explains the practical role of the section 31 threshold in such cases: it identifies the significant harm from which the child requires protection and helps the court evaluate each realistic care option without prematurely excluding placement with family under statutory supervision.