L (a child), Re

A special guardianship order gives the special guardian parental responsibility which may be exercised to the exclusion of the parents, but it remains subject to other orders under the Children Act 1989. When making the order, the court may make and condition contact orders, and may permit or refuse a change of surname. The child’s welfare remains decisive.

In deciding whether to change a child’s surname, the court may give substantial weight to preserving an honest and age-appropriate understanding of the child’s identity and birth family. A contact arrangement is not disturbed on appeal merely because another solution might have been preferable. The appellate court intervenes only for error in the exercise of discretion or where the decision is plainly wrong.

The maternal grandparents, who had provided E’s day-to-day care from infancy, obtained a special guardianship order. Black J also refused permission to change E’s surname, ordered six supervised sessions of direct contact each year between E and her mother, provided for indirect letter-box contact with her father, and refused disclosure of the case papers to a consultant child psychiatrist.

The grandparents appealed the ancillary orders. They contended principally that the restrictions on contact and the refusal to permit a change of surname were inconsistent with the parental responsibility conferred by the special guardianship order. They also challenged the local authority’s involvement. The central issues were the extent of the court’s continuing powers following a special guardianship order and whether the ancillary arrangements promoted E’s welfare.

1. Appeal allowed only to a limited extent. The special guardianship order gave the grandparents parental responsibility which they could exercise to the exclusion of the parents, subject to any other order under the Children Act 1989. It did not remove judicial oversight. Under sections 14B, 14E and 11(7), the court could make a contact order and attach conditions to it; under section 14B(2), it could permit or refuse a change of surname.

2. The refusal to change E’s surname was upheld. In this child’s circumstances, welfare strongly favoured an honest account of her identity, including that her parents were unable to care for her and that she was being raised by her grandparents. The statutory reference to a possible change of surname did not establish a presumption or starting point in favour of changing it.

3. The order for six supervised sessions of direct contact with the mother was not plainly wrong. The trial judge had been entitled to conclude that the volatility in the relationship between mother and grandmother made contact in the grandparents’ presence harmful, and that supervised contact for the immediate future best served E’s welfare. The appellate court could not substitute its own preferred arrangement merely because it might have made a different discretionary choice.

4. The appeal was allowed insofar as the requirement that any additional contact agreed by the mother and grandparents receive the social worker’s prior written approval was discharged. The order was clarified so that supervision of the prescribed direct contact would last for one year only.

5. Indirect contact with the father was appropriate because a child is generally entitled to know and have contact with a parent unless cogent reasons justify refusal. Direct contact remained inappropriate. The letter-box arrangements were varied: two additional cards or letters could be sent each year, and presents were confined to Christmas and E’s birthday and required suitability approval by the local authority after consultation with the grandparents.

6. The late, unsupported request to disclose all papers to a consultant child psychiatrist was rightly refused, without prejudice to a properly supported fresh application.

• Court of Appeal (Civil Division): Granted permission and allowed the appeal only to discharge the prior-written-approval condition for additional maternal contact, clarify that supervision lasted one year, and vary the father’s indirect-contact arrangements: [2007] EWCA Civ 196.
• Family Division (Black J): Made a special guardianship order in favour of the maternal grandparents and the challenged ancillary orders on 7 September 2006.