E (A Child) (Special Guardianship Order: Public Law Proceedings), Re

When care proceedings may conclude with a special guardianship order placing a child permanently with a local authority foster carer, the court must do more than conduct a welfare balance. Because the order is a significant interference with family life, it must be necessary and proportionate to the identified harm.

Although the statutory threshold in section 31(2) of the Children Act 1989 formally governs care and supervision orders, it should ordinarily be determined in this setting. It supplies the factual foundation for evaluating future risk and all realistic care options, particularly a proposed supervision order. The court must make clear findings about harm, likelihood, mitigation, comparative welfare, and proportionality.

Following earlier care proceedings, E had lived under a special guardianship order with her maternal grandmother and mother. E was removed in March 2024 after concerns about the mother’s mental health and family conflict. In the ensuing care proceedings, E lived with a foster carer.

At the final hearing, the local authority and guardian supported a special guardianship order in favour of the foster carer. The mother and maternal grandmother sought E’s return, alone or jointly, and were willing to accept a supervision order. Recorder Roche KC made a special guardianship order on 4 February 2026, applying a welfare balance and without determining the section 31(2) threshold or addressing proportionality.

The mother and maternal grandmother appealed. The central issue was the approach required where care proceedings may end with an order permanently placing a child outside her birth family.

1. Appeals allowed and remitted for rehearing. The judge erred by treating the decision as a simple welfare comparison. A special guardianship order in favour of a foster carer at the end of care proceedings creates permanence outside the birth family and is an intrusive interference with Article 8 family life.

2. Applying the principles in In re B [2013] UKSC 33 and In re H-W [2022] UKSC 17, the court had to decide whether that interference was necessary and proportionate. The welfare checklist remained relevant, but could not replace that evaluation.

3. Section 31(2) of the Children Act 1989 did not formally apply because no care or supervision order had been made. Nevertheless, the court should typically determine the threshold before deciding whether to make such an SGO at the conclusion of care proceedings. Here that was necessary because return to the mother and/or grandmother under a supervision order was a realistic option requiring determination. Threshold findings also provide the necessary factual basis for assessing future risk and for protecting the child and family against unwarranted state intervention.

4. The judge should have made clear findings on the harm relied on, its likelihood and consequences, the possibility of reducing or managing risk, and the comparative welfare implications of each realistic option. The absence of a current assessment of the mother, the limited analysis of the likelihood of relapse, and the need for findings on disputed risks reinforced the need for a rehearing.

5. The Court of Appeal did not determine the remaining factual issues. The matter was remitted for rehearing under the correct threshold, welfare, necessity and proportionality approach.

• Court of Appeal (Civil Division): The mother’s and maternal grandmother’s appeals were allowed. The special guardianship order was set aside and the matter remitted for rehearing: [2026] EWCA Civ 1167 .
• East London Family Court: Recorder Roche KC made a special guardianship order in favour of E’s foster carer on 4 February 2026 at the conclusion of care proceedings. No citation for that decision was stated.