Family Law

Family analysis: What factors should parties take into consideration in identifying realistic placement options for a child at the start of care proceedings? Sam Momtaz QC and Sharon Segal, of 1GC|Family Law, examine the Court of Appeal decision in P-S (Children) (care orders) [2018] All ER (D) 118 (Jun) that a Family Court judge had been wrong to make full care orders rather than special guardianship orders (SGOs) in respect of two children.

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What was the background?

The case concerned two children who had the same mother but different fathers.

During the proceedings the children were being cared for by family members who were, at time of the final hearing, not in a position to care for them. Both sets of paternal grandparents were assessed by the local authority positively as special guardians. The local authority filed care plans based upon the recommendations supported by the children’s guardian, but opposed by the children’s mother and the father of one child. Neither the local authority nor the paternal grandparents made an application for SGOs, with the consequence that the court was invited to make SGOs of its own motion. The paternal grandparents were not represented before the court at first instance and had not been joined. They had no opportunity to have any legal advice.

The court declined to make SGOs at the final hearing, and instead made final care orders in respect of both children, who were placed with the paternal grandparents. The judge was concerned about the viability of the placements as they were ‘untested’ and suggested a ‘short-term care order’ was appropriate.

The judge was influenced by informal guidance given by a High Court judge in his role as a leadership judge. The advice given was that an SGO should not be made unless ‘absent cogent reasons to the contrary, the child has been placed with the proposed SGO applicants/parties for a considerable period’.

The issue in the Court of Appeal was whether the judge below had been wrong in the circumstances to decline to make SGOs to the paternal grandparents.

The Court of Appeal considered the status and relevance of guidance issued by designated family judges and Family Division liaison judges, the circumstances in which the court should make care orders when the special guardianship assessment process is either incomplete or delayed, and procedural unfairness to prospective special guardians.

The Association of Lawyers for Children was granted leave to intervene to assist the court in relation to the issues of law and principle.