C (A Child) (Special Guardianship Order)

A special guardianship order is not confined to cases in which a child cannot return to the birth family, and there is no fixed permanence threshold. It is intended to provide greater permanence than a child arrangements order. The court must explain why the child’s welfare requires special guardianship rather than another available order.

Parental lifestyle and beliefs are relevant only insofar as they affect the quality of parenting and the child’s welfare. Parentage is important, but welfare remains paramount and no presumption favours a parent. A judge may resolve disputed credibility without asking a witness whether they are lying, and an adjournment or supervision agreement is unnecessary where it would not alter the welfare outcome.

The mother appealed against a special guardianship order made by HHJ Tolson QC on 14 August 2019 at the conclusion of care proceedings. The order placed C, aged five, with her paternal grandparents. The threshold criteria under section 31 of the Children Act 1989 had been agreed, but the judge determined them independently and then made a welfare decision.

The mother sought C’s return under supervision, or an adjournment to assess her continuing compliance with treatment and C’s care needs. She challenged the judge’s treatment of her lifestyle and beliefs, the finding that she had been untruthful, the choice of special guardianship rather than another order, the welfare evaluation, and observations about a possible future application to discharge the order.

1. Disposition. The appeal was dismissed. The special guardianship order in favour of C’s paternal grandparents was upheld.
2. The judge was right to determine the threshold criteria before undertaking the welfare evaluation. This remained appropriate even though special guardianship is legally a private-law order. Determining the threshold provided a clear factual foundation for the order and any future application.
3. Ground (a) failed. The observations in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 concerned the threshold for state intervention and did not govern the welfare evaluation. Consistently with Re H (A Child) (Appeal) [2016] 2 FLR 1171 and Re B (a child) (care order: proportionality: criterion for review) [2013] 3 All ER 929, parental character, lifestyle and beliefs were relevant only insofar as they affected the quality of parenting and C’s welfare. The judge had assessed the mother’s beliefs through their practical effects on medical care, education and social isolation, rather than disapproving of them in themselves. Parentage remained an important factor, but there was no parental presumption displacing welfare as the paramount consideration.
4. Ground (b) also failed. In re P-S (Children) (Care Proceedings: Special Guardianship Orders) (Association of Lawyers for Children intervening) [2018] 4 WLR 99 did not establish a particular permanence threshold. Special guardianship is intended to provide greater permanence than a child arrangements order, and the court must explain why the child’s welfare justifies that order in the circumstances of the case. The judge was entitled to conclude that the order could not be treated as merely temporary and that the special guardians’ ability to exercise parental responsibility exclusively was in C’s best interests because of the anticipated friction in future parenting.
5. The judge was entitled to resolve the conflict about the mother’s conversation with the parenting assessor. There was no requirement to ask her expressly whether she was lying, provided the evidence had been sufficiently explored and the judge gave reasons for preferring the assessor’s account.
6. The judge had sufficiently evaluated the competing care options. It was unnecessary to address the adjournment separately once he had concluded that C could not safely return to her mother and that an adjournment would add nothing. Although it would have been preferable expressly to address the proposed supervision agreement, the ex tempore judgment made clear that the judge lacked sufficient confidence in the mother’s future compliance for the agreement to alter the welfare balance.
7. The judge’s final comments about a possible application to discharge the order were intended as helpful guidance and did not prescribe what the mother would have to prove.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed and the special guardianship order was upheld.
• Central Family Court: HHJ Tolson QC made a special guardianship order in favour of C’s paternal grandparents on 14 August 2019 at the conclusion of care proceedings.