F & G, Re (Discharge of Special Guardianship Order)

An existing special guardianship order is not automatically discharged when a care order is made. The Children Act 1989 permits the orders to coexist, although this will be rare and the court must retain flexibility to respond to the child’s welfare. Whether an SGO should continue depends on the circumstances, including the established relationship, the child’s need for security and belonging, and whether its benefits can be achieved by less unusual arrangements. The court must consider the full range of statutory powers and alternative measures, including a detailed care plan and contact arrangements. A decision to retain an SGO reached without full consideration of those options may be set aside and remitted.

The mother appealed from HH Judge Sharpe’s refusal in the Family Court at Liverpool to discharge special guardianship orders made in favour of K, the former stepfather of twin girls. A care order in favour of Liverpool City Council had also been made. The placement with K broke down shortly afterwards, and the girls moved to foster care. The mother sought discharge of the SGOs; the judge retained them and imposed a condition requiring K to notify the local authority and the mother before seeking information about the children from third parties. The appeal concerned whether the orders could coexist, whether the SGOs should continue, and whether the condition was lawful.

The appeal was allowed on the second ground and the question whether to discharge the SGOs was remitted for rehearing. The first ground was rejected. The third ground would have been dismissed.

1. Coexistence of orders. An SGO is not automatically discharged by the making of an interim or final care order. The structure of sections 91, 33 and 14D of the Children Act 1989 shows that an SGO may remain in force. The Act provides that an SGO discharges a pre-existing care order, but contains no converse rule. The reference in section 33 to a special guardian would otherwise be ineffective. The exclusivity conferred by section 14C concerns the exercise, rather than the existence, of parental responsibility.
2. Welfare and permanence. Whether an SGO should be discharged depends on the circumstances and the child’s welfare. Relevant matters include the duration and nature of the relationship, the child’s continuing need for family ties, the consequences of retaining parental responsibility, and the availability of alternative safeguards. Special guardianship is intended to provide lasting security and belonging, as explained in Re M (Special Guardianship Order: Leave to Apply to Discharge) [2021] EWCA Civ 442. Coexisting orders will usually be inappropriate, and the ordinary course will be a care order with a plan for a later SGO, but the court must not impose an absolute statutory restriction.
3. Available alternatives and procedure. The court must have full regard to the range of powers available under the Act. It should consider whether a detailed care plan, an order under section 34(2), and express consultation arrangements under section 22(4) could preserve the important relationship without retaining the unusual combination of orders. The inherent jurisdiction could not be used to control the local authority’s discharge of parental responsibilities under a final care order, applying Re S (Minors) (Care Order: Implementation of Care Plan), Re W (Minors) Care Order: Adequacy of Care Plan [2002] UKHL 10. The lower court had not fully considered the available options and the process was unsatisfactory, so its decision was set aside and remitted.
4. Condition. A care order limits the special guardian’s otherwise exclusive exercise of parental responsibility. The local authority may determine its extent under section 33(3)(b)(i), subject to the child’s welfare. The condition requiring advance written notice before K sought information was a proportionate way of achieving relative parity and would have been upheld.

1. Court of Appeal (Civil Division) — [2021] EWCA Civ 622. Rejected the argument that a special guardianship order and care order could not coexist, but allowed the appeal because the decision not to discharge the SGOs had been reached without full consideration of the available alternatives. The issue was remitted to HH Judge Sharpe.
2. Family Court at Liverpool — HH Judge Sharpe refused to discharge the SGOs and varied them by imposing a condition concerning information sought by the special guardian.