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Special Guardianship Order and Care Order - Can they Co-Exist?

View profile for Julia Shaikh
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In the recent case of F v G [2021] EWCA Civ 622, The Court of Appeal granted leave to appeal to the mother, who argued that Special Guardianship Orders and Care Orders could not co-exist.

This case was in relation to twin girls F and G. Prior to their birth, the mother was in a relationship with K (stepfather) who was not their biological father. However, he raised them as his own from birth until he and the mother separated in 2017.

In 2019, the twins became subject to care proceedings due to their mother’s relationship with her violent partner.  The Court made a decision at the conclusion of the proceedings that the children would live with their stepfather under a Special Guardianship Order. A Care Order was also made in favour of the Local Authority. None of the parties challenged the Court’s decision.

Unfortunately, the placement broke down and the children were removed their stepfather and taken into Local Authority foster care. The stepfather made an application to discharge the Care Order and the Local Authority made their own application to discharge the Special Guardianship Order.

Prior to the mother’s application to the Court of Appeal,  HHJ Sharp decided not to discharge the Stepfather’s Special Guardianship order when the children were placed in foster care. The Court imposed a condition on the stepfather 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. Special Guardianship Orders 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 considered the Children Act 1989 and noted that it operates as a fluid and forward-thinking piece of legislation in that it provides for situations where Special Guardianship Orders can be controlled. Key examples are:

 s.33(3)(b)(i) Children Act 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, it would appear that as a matter of logic and language, Parliament had planned for the interplay of Special Guardianship Orders with Care Orders.

Further, within s.11 (7), Children Act 1989, a Special Guardianship Order can contain "conditions which must be complied with" – thus giving the Court another tool by which to retain a level of control over the Special Guardianship Orders.

The Court of Appeal raised the first issue of whether Care Orders and Special Guardianship Orders can co-exist together (that is, when both have been made together or the Care Order is made following the Special Guardianship Order). It was agreed, that these orders could co-exist in this way.

The Court of Appeal considered sections of s.14, s.33 and s.91 of the Children Act 1989 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 Special Guardianship Orders together. The rationale for this could have been that a Special Guardian is the only person with parental responsibility and that they have a close family bond with the child and this should be maintained. Whatever the situation, the Court must ask its self whether it is correct to discharge a Special Guardianship Order where a Care Order remains.

The Court of Appeal in this case, was keen to highlight that the exclusivity of parental responsibility granted by a Special Guardianship Order under s.14C Children Act 1989 is in relation to exercise not entitlement of parental responsibility. The order is also "subject to any other order in force" (unless that order is a pre-existing care order, see s.91 Children Act 1989). Therefore, the Court concluded that the family court does have the jurisdiction to allow Care Orders and Special Guardianship Orders to co-exist, although cases where the Orders interplay are rare.

At Johnson Astills, we have a specialist Family and Care team who would be able to assist you with Special Guardianship Orders or Care Orders. If you need any help please call 0116 2554855.

Further reading:

https://www.familylawweek.co.uk/site.aspx?i=ed221296

Re M (Special Guardianship Order: Leave to Apply to Discharge) [2021] EWCA Civ 442