In the matter of P-S (Children)

A final care order cannot be made as a short-term device for testing a placement. It cannot be time-limited or made conditional on a future event. Where the choice is between a special guardianship order, a care order, or an interim care order with an adjournment, the court must identify the relevant risk, test its assumptions on evidence, and evaluate the welfare advantages and disadvantages of each order.

A special guardianship order is not equivalent to adoption. There is no statutory requirement that a child must first have lived with a proposed special guardian. Unscrutinised informal guidance cannot replace evidence. Prospective special guardians must receive effective access to justice, including appropriate party status, disclosure, advice and a fair opportunity to participate.

Care proceedings concerned two young boys, P and S, whose mother and S’s father had relapsed during Family Drug and Alcohol Court proceedings. The parents were not realistic carers. The local authority assessed each child’s paternal grandparents as suitable special guardians and proposed special guardianship orders. The children’s guardian supported that course.

At the final hearing, His Honour Judge Tolson QC instead made full care orders. He considered that the placements should first be tested and described the orders as short term. The grandparents had not applied for special guardianship orders, were not parties, lacked representation and had not received the case documents.

The children’s guardian, supported by the local authority and the grandparents, appealed. The central issue was whether the judge had been entitled to refuse special guardianship orders in favour of care orders in those circumstances.

1. Appeal allowed unanimously. The care orders were set aside and special guardianship orders were substituted in favour of each child’s paternal grandparents. The unchallenged assessments, together with subsequent evidence that the placements were succeeding, provided an adequate basis for those orders.

2. The judge had identified the relevant concern: whether the grandparents could manage the children’s relationships with the mother and S’s father. However, he did not test that concern by evidence or evaluate the benefits and detriments of a special guardianship order, a full care order, and an interim care order with an adjournment. His conclusions were therefore unreasoned assumptions.

3. A full care order is not a short-term order. It cannot be limited by time or made dischargeable on a specified future event. If a trial placement was required, the judge should have obtained and scrutinised care plans under the Children Act 1989 and considered an adjournment with an interim care order.

4. A special guardianship order is not directly equivalent to adoption. Its statutory consequences differ, and the residence requirements governing adoption under the Adoption and Children Act 2002 do not apply to special guardianship. Neither the statute nor the Special Guardianship Regulations 2005 requires a child to have lived with proposed special guardians for an appreciable period before an order may be made.

5. The judge could not properly rely on Keehan J’s informal letters as guidance. Their evidential basis, scrutiny, status and susceptibility to challenge had not been established. Research may properly inform a decision where its material is identified and can be tested where necessary.

6. The residual power to make a special guardianship order of the court’s own motion should not become the normal process. The grandparents should have had effective access to justice through an application or equivalent case-management directions concerning party status, disclosure, advice, evidence and participation. Their exclusion rendered the procedure unfair.

The contact issues were reserved and remitted to the President of the Family Division sitting alone.

• Court of Appeal (Civil Division) Allowed the children’s guardian’s appeal in [2018] EWCA Civ 1407, set aside the care orders and substituted special guardianship orders for the paternal grandparents.

• Central Family Court On 28 March 2017, His Honour Judge Tolson QC made care orders after declining to make special guardianship orders.