S (A Child), Re No. 1

Where adoption and special guardianship are alternative orders, there is no presumption in favour of either. The court must decide which order better serves the welfare of the particular child, having regard to their materially different legal status and consequences.

Under the Adoption Act 1976, the welfare condition for adoption must be satisfied before the court considers whether parental agreement is unreasonably withheld. A special guardianship order may be made on the court’s own motion, including for an unwilling carer, but only after the required local-authority report has been received.

A foster carer appealed from an order of HH Judge Kushner QC, sitting in the Manchester District Registry, refusing her application to adopt S under the Adoption Act 1976 and instead appointing her S’s special guardian. It was common ground that S should remain permanently in the carer’s household.

The judge considered that special guardianship preserved S’s important relationship with her mother while providing the security and parenting she needed. The appeal challenged the welfare assessment, the treatment of the guardian’s evidence and the failure to dispense with parental consent. A further issue emerged concerning the absence of a local-authority report before the special guardianship order was made of the court’s own motion.

1. Subject to resolution of the statutory-report issue, the appeal was dismissed. The judge was entitled to conclude, in a finely balanced case, that S’s welfare was better served by special guardianship than by adoption. The Court of Appeal would not interfere with that discretionary welfare decision.
2. There is no statutory presumption that special guardianship is preferable to adoption in any category of case. The court must compare the orders’ different status, powers and consequences and ask which better serves the welfare of the individual child. The legal distortion of family relationships which adoption may cause in a familial placement is relevant, but is only one factor in the overall welfare evaluation.
3. The judge had sufficiently addressed the material welfare considerations. She was not required to work through every item in the statutory checklist expressly, although that remains desirable. The guardian’s evidence did not amount to a clear recommendation for adoption; it recognised that special guardianship could meet S’s needs. The judge gave sustainable reasons for preferring the order which preserved S’s relationship with her mother while securing her placement with the appellant.
4. Under the Adoption Act 1976, the court first had to be satisfied that adoption would safeguard and promote S’s welfare throughout childhood. Since the judge was not so satisfied, she did not need to decide whether the mother’s consent was unreasonably withheld.
5. The court held that a special guardianship order may be made of its own motion under section 14A(6)(b) of the Children Act 1989, even where the proposed guardian seeks adoption instead. However, section 14A(11) prohibited the order unless the court had received a report addressing section 14A(8). As no such report had been obtained, the order appeared to have been made without jurisdiction. The court invited submissions and proposed that the local authority provide the report for the adjourned hearing, at which the judge could reconsider the order.

• Court of Appeal (Civil Division): By a judgment of the court, the appeal was dismissed, subject to resolving the absence of the required local-authority report: [2007] EWCA Civ 54.
• High Court, Manchester District Registry: On 13 July 2006, HH Judge Kushner QC refused the foster carer’s adoption application and made a special guardianship order of the court’s own motion. No citation for that order was stated in the judgment.