H (A Child) (Analysis of Realistic Options and SGOs)

Where a court must choose between realistic arrangements for a child, it must identify and compare each option through a comparative welfare analysis. It must then assess the proportionality of the resulting interference with the parties’ Article 8 rights. In a case determined after Re B-S, a bare reference to those principles is insufficient.

A special guardianship order requires proper procedural safeguards. The court should not ordinarily make the order of its own motion without an application, agreement or reasoned justification. It must ensure that the required report and relevant evidence have been properly scrutinised, and that a parent can fairly test the proposed special guardian’s suitability.

Public-law proceedings concerned H, a four-year-old child with significant developmental and health needs. The father had cared for her for more than six months with support from relatives and specialist organisations. The Central Family Court nevertheless made a special guardianship order in favour of A, a non-relative connected with the mother’s church.

The father appealed. The two realistic options were continued supported care by the father and placement with A under a special guardianship order. The appeal raised whether the judge had lawfully compared those options, obtained and tested the necessary evidence, and observed the statutory and procedural safeguards governing special guardianship.

1. Appeal allowed. Ryder LJ, with whom McCombe LJ and Longmore LJ agreed, held that the special guardianship order could not stand. The judge had not undertaken a comparative welfare analysis of the two realistic options: supported care by the father and care by A under an SGO. The absence of that comparison also meant that there had been no proportionality evaluation of the Article 8 interference.

2. The case had been decided after Re B-S [2013] EWCA Civ 1146. It was therefore insufficient to look merely for the essence of the necessary analysis. The court required a genuine evaluation of the options, not lip service to the applicable principles.

3. Fundamental case-management failures had prevented a sound welfare decision. The court had not clearly identified the disputed issue of whether the father required a co-parent, the evidence needed to resolve it, or the witnesses to be called. The earlier neuropsychological opinion had not been updated or properly tested, and the father’s proposed support was not adequately examined.

4. The SGO process was also procedurally defective. Although the court has power under Children Act 1989, section 14A(6)(b), to make an order of its own motion, that should not be the default. Where there is no agreed dispensation from an application, use of that power requires reasons. The court had to ensure compliance with the mandatory report requirements in sections 14A(8) and 14A(11), and scrutinise whether another assessment could satisfy the statutory and regulatory purpose.

5. The father was entitled to test A’s capacity to care for H, whether through A or the relevant assessor. The evidence about A’s suitability had not been sufficiently examined. McCombe LJ additionally considered the available material about A’s domestic arrangements, work and limited relationship with H to make a thorough re-hearing essential.

6. The order was set aside. An interim care order was made, subject to an undertaking to file a fresh interim care plan, and directions were given for an urgent re-hearing.

• Court of Appeal (Civil Division): Allowed the father’s appeal, set aside the special guardianship order, made an interim care order and directed an urgent re-hearing: [2015] EWCA Civ 406.
• Central Family Court: Her Honour Judge Wright made a special guardianship order in favour of A on 9 October 2014. No lower-court citation was stated.