Surrey County Council v Al-Hilli & Anor (Rev 2)

When determining arrangements for children, welfare is the paramount consideration. The court must consider the statutory welfare factors and evaluate all realistic legal options, including their respective advantages and disadvantages, even where the parties agree on the proposed order. A special guardianship order is appropriate where children need greater permanence and stability than an ordinary residence order provides, but adoption is unsuitable because preserving family links and identity is important.

The proceedings concerned two children who had survived a fatal shooting in France in which their parents and maternal grandmother died. In an earlier judgment, the court concluded that living with the children’s maternal aunt, uncle and cousin was in their best interests, but adjourned the question of the legal order required. At the final hearing, the local authority, the proposed special guardians and the children’s guardian agreed that special guardianship was the appropriate route. The issue was whether that order, rather than residence, care or adoption, best secured the children’s welfare and future care.

1. Order made. The court made special guardianship orders appointing the maternal aunt and uncle as the children’s special guardians. The local authority was directed to provide support in accordance with the plans placed before the court.
2. Under section 1(3) of the Children Act 1989, the children’s welfare was the paramount consideration. The relevant factors included their wishes and feelings, physical, emotional and educational needs, background, harm suffered or risked, the proposed carers’ capacity to meet their needs, and the range of powers available to the court.
3. Although all principal parties supported special guardianship, the court was required to consider all available options and their advantages and disadvantages. The realistic alternatives were a residence order, a care order with a placement plan, special guardianship and adoption.
4. A special guardianship order gives the special guardians exclusive power to exercise parental responsibility and provides permanence and security. It is particularly suitable where a child needs greater stability than an ordinary residence order provides, but adoption is unsuitable.
5. Adoption was inappropriate because the children should retain their family links and identity as the children of their deceased parents. Their traumatic experiences nevertheless made the greater permanence and stability of special guardianship necessary.
6. Under section 97(4) of the Children Act 1989, publication of the short judgment was authorised in the public interest. Further reporting restrictions remained in force under the Administration of Justice Act 1960, the Family Procedure Rules 2010 and an amended reporting restriction order. Immigration matters were for the immigration authorities, although disclosure of the judgment and order to those authorities was permitted.

The judgment describes an earlier judgment dated 26 July 2013, which found that living with the maternal aunt, uncle and cousin was in the children’s best interests and adjourned determination of the appropriate legal order. The present judgment determined that issue at final hearing.