Care Orders and SGOs: the long awaited authority confirming they can co-exist together.

Today the Court of Appeal has published the judgment in the matter of Re F and G [2021] EWCA 622. Our Senior Consultant Barrister, Lisa Edmunds, and Consultant Barrister, Kerri O’Neill, represented the appellant mother in this appeal. Therefore, this article is hot off the press and on the heels of the judgment following its publication. 

This article will provide an easy read into the central question the judgement addresses – can a Care Order and Special Guardianship Order exist together as final orders? (Ground 1 of the appeal). It will not focus on grounds 2 and 3 of the appeal which are fact specific to the case. 

 The facts of the appeal can be summarised as: 

• The subject children were placed with their stepfather in care proceedings.
• At the time of proceedings, the Mother and stepfather were divorced.
• There were early indicators that the stepfather would not meet the Fostering Standards, and so an assessment of him as a foster carer was abandoned and switched for a Special Guardian assessment.  
• The SG assessment was positive.
• At the welfare stage of the hearing, the court determined that the LA needed to retain PR, and, that the only vehicle for legally placing the children with the stepfather was a SGO. 
• The court made a CO and SGO.  
• The mother resisted the combination of orders on the basis that they were not designed to be combined as final orders, and, that it left father with dominant PR.  However, at the time of the final hearing for the subject children, the mother had delivered a third child and so turned her attention to the planning for the new child.   
• The mother did not appeal those final orders. 
• Within weeks of the final orders being made, the local authority sought to remove the children from the stepfather’s care on the basis of the standard of care provided to them was not meeting their needs
• Stepfather applied to discharge the Care Order. Within those proceedings, the mother sought to have the SGO discharged.
• The Judge refused the mother’s application to discharge the SGO.  
• Therefore, the CO and SGO remained in place despite the children having been long removed from the care of the stepfather and him beginning to disengage with contact.   

The application the Court of Appeal was asked to deal with was the refusal of the lower court to discharge the SGO in favour of the stepfather.  The mother lodged an appeal citing the following 3 grounds: 

1. A care order and SGO cannot and should not exist in law  
2. In the alternative, if they can, the existence of both in this case was wrong  
3. In the event that both orders are appropriate on the facts of this case, the court failed to restrict the PR of the stepfather sufficiently, failing to achieve the desired outcome

Lord Justice Jackson, Lord Justice Baker and Lady Justice Laing heard the appeal.  A more detailed summary of the facts can be found between paragraphs 2 – 14. 

The primary argument advanced by the appellant in the appeal was that Special Guardianship Orders were designed as a alternative to adoption; providing security and permeance whilst ring fencing Special Guardian so that they maintain an elevated status; ensuring that biological parents cannot destabilise a placement by making return applications.  In short, all the advantages of adoption, without the legal severance.   

The appellant sought to argue the point that a SGO was final order and therefore should not be combined with a Care Order. The finality assured in a SGO being somewhat contradicted by the support and oversight of a Care Order.   

Further, once in place, the parties on the ground experience conflict with respect to leave being required to apply to discharge the SGO, but, not to apply to discharge the care order.  Then there is the question of “under which regulations is the placement regulated?  Special Guardianship Regulations or Careplanning Regulations?” 

The respondents to the appeal jointly resisted the appeal on the basis that both orders could exist together. Further, specifically in relation to this case, the stepfather and Guardian advanced that the stepfather was an important figure in the children’s lives that had played a significant role for a significant time and so should not have that presence rubbed out by discharging the SGO.   

So, what did the Court of Appeal say? 

Lord Justice Baker providing the leading judgement said: 

1. SGOs and Care Oders can exist together.  The 3 reasons for this are: 

• s.91CA 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 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. 
• Thirdly, the provisions in s.14D 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. 

2. Where an SGO has been in force for several years, the special guardians will usually have established a close relationship with the child. They may be the only persons with parental responsibility. In such circumstances, it would in all probability be wrong for the SGO to be discharged upon making a care order. 

3. Where, the SGO has only been in force for a short period, and the role of the special guardians in the child’s life has not been established, it may be appropriate for the SGO to be discharged. 

4. Everything turns on the circumstances of the case and the welfare of the child 

5. 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. 

6. There is nothing in the statute to prevent a care order being made after the making of the SGO. 

Finally, bringing the question in context of contemporary society, LJ Baker  says the following at paragraph 48: 

The range of circumstances that arise in proceedings under the Act is so wide that it would be wholly wrong to adopt an interpretation of the statute that deprives the court of a flexibility that the circumstances may require. S.1(3)(g) and (4)(b) require any court considering whether to make, vary or discharge an SGO or a care order to have regard to “the range of powers available to the court under the Act in the proceedings in question”. It is not for this Court to impose a restriction on the range of powers provided by Parliament. 

And at paragraph 50: 

Given the complexity and gravity of cases that come before the family courts, it would not be right to deprive judges of an option.

At paragraph 63 LJ Baker reminds us: 

When contemplating making what would be a highly unusual combination of orders, it is incumbent on the court to consider whether the result can be substantially achieved by more orthodox means. 

Outcome of the Appeal 

The appellant was successful on the 2nd ground of appeal. The matter will be remitted for hearing.

Take Away Points: 

• A Care Order can be made in respect of a child whom is already subject to a Special Guardianship Order 
• The court must consider whether the outcome can be achieved by a more orthodox means  

This is the first authority that definitively confirms that it is possible for Care Orders and Special Guardianships Orders to exist as a package of final orders.   

Written by Kerri O’Neill 

2nd Junior Counsel on behalf of the Appellant in Re F and G [2021] EWCA 622

Consultant Barrister, Unit Chambers