O & Anor v Orkney Island Council

A local authority receiving notice of an application for a special guardianship order must prepare the prescribed report, or provide it when directed by the court, under the Children Act 1989. The court cannot make the order without receiving that report where section 14A(11) applies. The requirement is mandatory and admits no exception, even where the application is uncontentious and the necessary information is otherwise available. Where a child is not being looked after by a Scottish local authority within the statutory scheme, responsibility for the report may fall on the English local authority in whose area the applicants ordinarily reside. The judgment also highlighted the serious consequences of local authorities disputing responsibility for financial and practical support promised to kinship foster carers.

The applicants were caring for a seriously ill child who had been placed with them as kinship foster carers by Orkney Island Council. The child had subsequently lived with them in England, and the Scottish supervision requirement had been removed.

The applicants sought a special guardianship order. Cambridgeshire County Council and Orkney Island Council disputed which authority was responsible for preparing the statutory report required for the application. Orkney argued that responsibility lay with Cambridgeshire; Cambridgeshire maintained that the child remained looked after by Orkney. The central issues were which authority had the reporting duty and whether the court could proceed without the report.

1. Reporting responsibility. The court held that the duty to prepare the special guardianship report lay on Cambridgeshire County Council. It might be that, since March 2009, the child was no longer looked after by Orkney Island Council. Further, section 108(11) of the Children Act 1989 showed that the provisions of section 14A did not extend to Scotland. Orkney was also not subject to the compulsive jurisdiction of the English court. Cambridgeshire was therefore the relevant authority under section 14A(7)(b).
2. Mandatory report. The Court of Appeal’s decision in Re S (Adoption Order or SGO) (No 2), [2007] 1FLR 855, confirmed that section 14A(11) was mandatory and admitted no exception. The court could not make a special guardianship order without receiving the prescribed report, although the application was uncontentious and relevant information was available from other sources.
3. Alternative direction. In any event, the judge directed Cambridgeshire to provide the report under section 14A(9). This enabled the special guardianship application to proceed, but did not resolve the applicants’ separate concerns about continuing financial and practical support.
4. Wider observations. The judge expressed concern about the consequences of local authorities relying on jurisdictional and budgetary disputes after assurances had been given to carers who had acted in good faith. Copies of the judgment were directed to the relevant government ministers for consideration of support arrangements and whether the absolute operation of section 14A(11) was intended or required.