Birmingham City Council v LR & Ors

A person who requires the court’s permission to apply for a special guardianship order cannot give the statutory notice of intention to apply until permission has been obtained. Premature notice does not trigger the local authority’s mandatory duty under section 14A(8) of the Children Act 1989.

The court should not use section 14A(9) to require a report at the instance of such a person before permission is granted, unless the court is itself considering making an order without an application under section 14A(6)(b). Once a report is required, neither the court nor the local authority may restrict the information prescribed by the Act and regulations.

In care proceedings concerning a child whose parents could not care for her, the local authority proposed adoption outside the family. The maternal grandparents wished to care for the child under a special guardianship order, but had neither obtained nor applied for permission to make that application.

At a directions hearing, His Honour Judge Cardinal ordered the local authority to assess the grandparents under section 14A(9) of the Children Act 1989. Permission to apply for special guardianship was subsequently granted, and the ordered assessment was undertaken. Although those events rendered the appeal academic, the Court of Appeal heard it because the statutory questions were important and likely to recur.

The issues were whether notice could precede permission, when the court could require a report of its own motion, and whether the court could limit the report’s statutory scope.

1. Appeal allowed. Although subsequent events had rendered the appeal academic, the Court determined the statutory questions because they were important and likely to recur. The judge’s order of 3 August 2006 had been made prematurely.

2. A person who requires permission under section 14A(3)(b) of the Children Act 1989 lacks capacity to apply for a special guardianship order until permission is obtained. Such a person also cannot give the notice required by section 14A(7) before obtaining permission. The judge had confused an application for permission with the substantive application for a special guardianship order.

   Accordingly, neither an undertaking to seek permission nor purported notice given before permission can trigger the local authority’s mandatory duty under section 14A(8). That duty arises when a person already entitled to apply gives notice, or when a person requiring permission obtains it and then gives notice. Any broader construction could compel a substantial investigation at the instance of a person with no relevant connection to the child.

3. Section 14A(9) confers a judicial discretion to require the local authority to conduct the section 14A(8) investigation and prepare the prescribed report. The discretion must be exercised judicially. It is properly available where the court considers under section 14A(6)(b) that a special guardianship order should be made despite the absence of an application, because section 14A(11) prevents the order being made without a report.

   The discretion should not be invoked at the instance of a person who needs but has not obtained permission, unless section 14A(6)(b) applies. On 3 August, no substantive application was possible and the prospects of special guardianship were wholly speculative. It would also be inconsistent to refuse permission to apply but nevertheless order an investigation at that person’s instance.

4. Once an investigation and report are required, the court cannot restrict, reduce or alter their statutory scope. Neither the Act nor the Special Guardianship Regulations 2005 permits a curtailed report. The prescribed detail reflects the significance of special guardianship, which gives the guardian an exclusive capacity to exercise parental responsibility and ends a local authority’s parental responsibility under a care order.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1748, the court allowed the local authority’s appeal and ruled that the direction under section 14A(9) had been premature, although subsequent events had rendered the dispute academic.
2. Birmingham County Court: On 3 August 2006, His Honour Judge Cardinal directed the local authority to assess the grandparents under section 14A despite their not having permission to apply for a special guardianship order. On 15 September 2006, he subsequently granted that permission and gave directions for the final care hearing.