Kerry Cockayne analyses important recent rulings for childcare lawyers on special guardianship orders, discharge of care orders, and joinder of foster carers.
Summary: The Court of Appeal considered whether a special guardianship order can coexist with a care order.
Background: At the conclusion of care proceedings, twin girls F and G were made subject to care orders and placed with their mother’s former husband K under special guardianship orders (SGOs). The placement soon broke down and the local authority gave notice of their intention to remove the children to foster care, which they subsequently did. K responded to the notice inter alia by applying to discharge the care orders. The local authority then requested the discharge of the SGOs. By the time of the final hearing of K’s application, the local authority had changed their mind about the discharge of the SGOs but their previous stance was adopted by the children’s mother. The continuation of the care orders was no longer controversial, but judgment was handed down refusing to discharge the SGOs. The mother appealed with permission of the Court of Appeal.
Judgment: The specific provisions of s.91 Children Act 1989 make it crystal clear that an SGO is not automatically discharged by the making of a care order. Given the care with which that section is drafted, it is obvious that, had Parliament intended that an SGO would be discharged by the making of a final care order, it would have said so in express terms.
The provisions in s.33 Children Act 1989 governing the effect of a care order would make no sense if an SGO was automatically discharged by the making of a care order. Under s.33(3)(b)(i), as amended in 2002, when a care order is in force the local authority has the power to determine the extent to which “a parent, guardian or special guardian … may exercise his parental responsibility” for the child. The words “special guardian” were inserted into this subsection in 2002 when the statutory provisions governing special guardianship were introduced. The fact that Parliament amended s.33(3)(b) of the Children Act so as to include the words “special guardian” confirms that it intended that an SGO could continue after the making of a care order.
The provisions in s.14D Children Act 1989 governing the discharge of an SGO would make no sense if an SGO was automatically discharged by the making of a care order. Where the circumstances are appropriate, a local authority “designated in a care order” with respect to the child may apply without leave for discharge of the SGO under s.14D(1)(f). Since a local authority is only entitled to apply for the discharge of the SGO if it is designated in a care order, and since the making of an SGO discharges any pre-existing care order, the clear implication of s.14D(1)(f) is that, where a care order comes into force, any existing SGO with respect to the child remains in force until discharged under s.14D.
More fundamentally … like adoption, special guardianship is a relationship which provides long-term support for the child. There is no reason for “the sense of security, continuity, commitment, identity and belonging” to come to an end when the child moves away. On the contrary, the purpose and intention is that it will survive “through childhood and beyond”. It would be contrary to the purpose of special guardianship for it to come to an end automatically upon the making of a care order.
However, although concluding that the jurisdiction exists to allow care orders and SGOs to coexist, Baker LJ considered that the circumstances in which a court concludes that a care order should be made alongside an SGO are likely to be rare. The most straightforward solution will normally be to make care orders on the basis of a plan that they will be replaced by an SGO at a later date if all goes well.
Summary: A mother appealed from the refusal of her application for the discharge of care orders in relation to three of her children and in doing so, raised arguments about the correct legal approach to applications under s.39 Children Act 1989.
Judgment: Permission to appeal was granted because “ … there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM v Carmarthenshire County Council  EWFC 36, also reported as M v Carmarthenshire County Council  3 WLR 1126”. In that decision it was stated that on an application to discharge a care order:
1. While there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s.31 of the Act for the making of a care order, something close to a formal threshold requirement applies.
2. [It] should not be refused unless it can be shown that the circumstances are exceptional, and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests.
Peter Jackson LJ, delivering a judgment dismissing the appeal with which the other members of the Court agreed, concluded that “these statements are not correct and should not be followed” for the following reasons:
The combined effect of s.1 and s.39 Children Act 1989 is that on the application of an entitled applicant the court may discharge a care order or it may replace it with a supervision order, in which case there is no requirement for the s. 31(2) threshold to be crossed. As the decision concerns a question of upbringing, the child’s welfare shall be the court’s paramount consideration. As the court is considering whether to vary or discharge an order under Part IV, the court shall have particular regard to the factors in the welfare checklist. As the court is considering whether to make an order under the Act, it shall not make the order unless to do so would be better for the child than making no order at all.
The proper approach to an application to discharge a care order had been considered by th Court of Appeal court in two cases, one before and one since the Human Rights Act: in Re S (Discharge of Care Order)  2 FLR 639 and in Re C (Care: Discharge of Care Order)  EWCA Civ 955.
In summary, when a court is considering an application to discharge a care order the legal principles are clear:
(1) The decision must be made in accordance with s. 1 of the Act, by which the child’s welfare is the court’s paramount consideration. The welfare evaluation is at large and the relevant factors in the welfare checklist must be considered and given appropriate weight.
(2) Once the welfare evaluation has been carried out, the court will cross-check the outcome to ensure that it will be exercising its powers in such a way that any interference with Convention rights is necessary and proportionate.
(3) The applicant must make out a case for the discharge of the care order by bringing forward evidence to show that this would be in the interests of the child. The findings of fact that underpinned the making of the care order will be relevant to the court’s assessment but the weight to be given to them will vary from case to case.
(4) The welfare evaluation is made at the time of the decision. The s. 31(2) threshold, applicable to the making of a care order, is of no relevance to an application for its discharge. The local authority does not have to re-prove the threshold and the applicant does not have to prove that it no longer applies. Any questions of harm and risk of harm form part of the overall welfare evaluation.
Although not directly featured in the appeal, consideration was also given to the issue of attachment theory because it had been addressed in GM v Carmarthenshire when Mostyn J had concluded that evidence based on attachment theory does not qualify to be admitted as expert evidence and that “in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind”. Having referred to Re M’P-P (Children)  EWCA Civ 584 and Re W (A Child)  EWCA 793, Peter Jackson LJ said: “It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred … make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand.”
Summary: The issue with which the appeal was concerned was the decision to join a child’s foster parents, who had a wish to adopt the child, to the care proceedings.
Background: R was born on 3 March 2020. On the same day, the local authority filed an application for a care order. At the first hearing two days later, an interim care order was made and on R's discharge from hospital he was placed with foster carers, Mr and Mrs A. After the mother's failure to engage with the assessment, the local authority decided that R should be placed for adoption and on 4 December 2020 applied for a placement order. Mr and Mrs A indicated that they would like to be considered as adopters. Meanwhile, the local authority continued with its inquiries about family members and identified a cousin of the mother, Ms G, and her partner as possible adopters. The fostering permanence panel recommended Ms G and her partner for approval and the local authority then embarked on a further assessment under the Adoption Agency Regulations to establish whether they were suitable to adopt R.
There were therefore unusually two potential sets of adoptees where a placement order application was being made – the foster carers, and a cousin and her partner (the latter who were identified late in the proceedings). The local authority were supporting the cousin and partner. The foster carers had made an application to adopt, which had not been validly made at the time of the initial hearing. The judge took the view that the foster carers should be joined as there was nobody else who could effectively put their case, in contrast to the cousin. The local authority appealed against this decision. At the time of this judgment, both couples had been approved as adopters.
The case also concerned the division of responsibilities between the court and local authority when it came to adoption in these very unique circumstances. The issue arose as to whether the court should determine this as part of its final welfare decision, or if it should be left to the local authority as part of their statutory functions.
Judgment: After a thorough evaluation of the law on adoption, the role of the care plan, family placements, and joinder of foster carers and prospective adopters, Baker LJ, giving the leading judgment, concluded that the trial judge was wrong in both principle and law to join the foster carers as parties. The exceptional circumstances did not exist. The foster carer's application to adopt must be considered before any final decision was made about the child's future, but this did not necessitate them being joined as parties. The guardian was able to carry out any necessary enquiries without the foster carers being joined.
Baker LJ however did not agree with the local authority that the proposed application by the foster carers was irrelevant nor that it was an impermissible attempt to circumvent the statutory scheme. There was nothing in the statutory scheme to prevent a person who is lawfully entitled to apply for a private or non-agency adoption from doing so before or after the local authority has applied for a placement order. Baker LJ further noted that where such a person has given notice of intention to apply to adopt, the local authority is absolved from its statutory obligation to apply for a placement order, provided the adoption application is issued within four months and has not been withdrawn or refuse (s.22(5) Children Act 1989). Further, when a lawful application has been made, the court must consider it and is not constrained from doing so by the statutory scheme. Any court was also required to take into account the range of powers available when making a placement order, and that would include the making of a non-agency adoption order as sought by the foster carers.
The Court concluded that the care order application should proceed to a final hearing at which the judge would have to determine the local authority plan for adoption, and that if this was so, it was anticipated that a final care order would be made but the application for a placement order adjourned to be determined in parallel with Mr and Mrs A's application to adopt (by which time it would have been validly made). The Court also set aside the order for the filing and serving of adoption assessments, on the basis that they would contain confidential information, and stating that this should be reconsidered at the next hearing.