S (A Child), Re No. 2

A special guardianship order cannot be made under section 14A(6)(b) of the 1989 Act unless the court has received a report addressing section 14A(8). This requirement applies even where no party has applied for the order or given notice under section 14A(7). The judge must request the necessary investigation and report under section 14A(9). The report need not duplicate material already before the court. It may provide missing information and cross-refer to existing evidence. Where a fresh investigation is required, the local authority must conduct it without preconceptions. A breach may be rectified by obtaining a compliant report and holding a further hearing, without necessarily reopening the merits.

The appellant adopter appealed from an order made by HH Judge Kushner QC in Manchester District Registry on 13 July 2006. The order was a special guardianship order made without an application. In its substantive judgment, [2007] EWCA Civ 54, the Court of Appeal had concluded that the appeal should be dismissed on its merits. This addendum addressed whether the absence of a report under section 14A(8) prevented the order under the 1989 Act, and what procedural response was required. The central issue was whether existing adoption evidence could satisfy the statutory report requirement or whether a wholly new investigation and report was necessary.

1. Disposition. The appeal remained dismissed on its merits. The court nevertheless held that the special guardianship order made on 13 July 2006 had been made in breach of section 14A(11) because the required report had not been obtained.
2. Section 14A(11) of the 1989 Act imposes an unequivocal precondition. The court may not make a special guardianship order unless it has received a report dealing with the matters in section 14A(8). That requirement is not confined to cases in which an individual has given notice under section 14A(7). It also applies where the court acts under section 14A(6)(b) and considers making an order although no party has applied for one.
3. Where section 14A(6)(b) is engaged and no report exists, the judge must use section 14A(9) to request the local authority to investigate and produce a report addressing section 14A(8)(a) to (c). Until the report has been received, the court has no power to make the order. The court applied the approach in Re R (a child) (special guardianship order), [2006] EWCA Civ 1748, [2007] 1 FCR 121, that the requirements of the investigation and report cannot be defined so as to limit them.
4. The report requirement does not, however, require duplication. Where most of the necessary material is already before the court in another form, the local authority may provide the missing information and cross-refer to the existing evidence. The court accepted that this pragmatic approach may be appropriate, including in adoption proceedings. Where information required by section 14A(8)(a) and (b) is absent, a fresh investigation and report may be required. Any fresh investigation must be undertaken without preconceptions.
5. The report is not a mere formality, but the breach did not require the merits to be reconsidered from the beginning. The court directed the local authority to complete its investigation and file a report under section 14A(8), using missing information and cross-references where appropriate. Once received, there was to be a further hearing at which the special guardianship order and any ancillary orders could be made.

• Court of Appeal (Civil Division): In the substantive judgment, [2007] EWCA Civ 54, the appeal from HH Judge Kushner QC was to be dismissed on its merits.
• Court of Appeal (Civil Division): This addendum held that the order had been made before receipt of the required report, directed preparation of a compliant report and a further hearing, and dismissed the appeal.