Factual and Procedural Background
On 28 March 2017, His Honour Judge Tolson QC granted care orders to the London Borough of Camden concerning two young boys, referred to as P (aged 5) and S (aged 2), who have different fathers. The children’s mother lives with the father of S and is separated from the father of P. The care orders resulted in the children living with their respective paternal grandparents. Although the mother and father of S desire the children to return to their care, this issue was not before the court. Contact arrangements involving the mother and father of S remained outstanding and were remitted to the President of the Family Division. The father of P was content with the care arrangements involving his son living with his parents.
The appeal concerned whether the judge erred in declining to make special guardianship orders (SGOs) to the paternal grandparents. The appellant was the children’s guardian, supported by the local authority. The paternal grandparents were joined during case management in this court and supported the appeal. The father of P also supported his parents. The paternal grandparents of S accepted that, at the time of the final hearing, an immediate SGO was not appropriate but sought an adjournment to facilitate transfer to their care under an interim care order. The father of S and the children’s mother opposed the appeal, fearing prejudice to their intended application to discharge the care orders.
The Association of Lawyers for Children (ALC) was granted leave to intervene to assist on issues of law and principle. The background to the care proceedings began in January 2016 in the Family Drug and Alcohol Court (FDAC) in London. The mother and father of S relapsed and withdrew from the FDAC process. The judge found the mother was not a viable or realistic carer, a conclusion not appealed. Initially, P lived with the maternal grandmother and S with a paternal aunt and her partner under interim care orders, but these carers withdrew or were unable to continue by the final hearing.
The delay in proceedings beyond 26 weeks was partly due to changes in carers for S and the need to reassess placements. Both sets of paternal grandparents were assessed as potential special guardians, with recommendations supporting SGOs. The father of P agreed with the recommendation. Neither the local authority nor the grandparents applied for SGOs, so the court was invited to make such orders of its own motion. The grandparents were not parties nor represented at the Family Court hearing and were surprised by the care orders made. Subsequent evidence indicated both boys were doing well with their grandparents, and support plans including financial assistance and contact arrangements were agreed between the local authority and grandparents.
Legal Issues Presented
- Whether the Family Court judge erred in declining to make special guardianship orders to the paternal grandparents.
- Whether the judge’s reliance on informal, unapproved guidance about the timing of SGOs was appropriate.
- Whether procedural fairness was afforded to the paternal grandparents, including their party status and access to evidence and legal advice.
- The appropriateness of making full care orders rather than interim care orders or SGOs in the circumstances.
Arguments of the Parties
Appellant's Arguments (Children’s Guardian and Local Authority)
- The judge was wrong to make full care orders as no party supported this and the care orders were disproportionate given the special guardianship assessments.
- The concept of short-term care orders relied upon by the judge is legally flawed as care orders cannot be time-limited.
- The judge erred in relying on informal, unapproved guidance discouraging SGOs before the child has lived with proposed guardians for a period.
- Procedural unfairness arose from the grandparents not being joined as parties, lacking access to evidence, advice, and the opportunity to participate fully.
- SGOs supported by comprehensive assessment reports and subsequent evidence of successful placements should have been made.
Respondents' Arguments (Mother and Father of S)
- Opposed the appeal to prevent prejudice to the mother’s intended application to discharge the care orders and have the children returned to their care.
Paternal Grandparents' Position
- Initially did not seek immediate SGOs but agreed to an adjournment to facilitate transfer under interim care orders.
- Supported making SGOs subject to appropriate funding and support plans, which were subsequently agreed.
Association of Lawyers for Children (Intervener)
- Assisted the court on issues of law and principle, including the use and timing of SGOs and procedural fairness.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| W v Neath Port Talbot & Ors [2013] EWCA Civ 1227; [2014] 2 FLR 431 |
Guidance on case management and planning in care proceedings, including the use of SGOs and extension of statutory timetables. |
Referenced to underline good practice in planning and the necessity of case management directions for SGOs and extensions beyond 26 weeks. |
| Re M-F (Children) (Care Proceedings: Extension of Time Limit) [2014] EWCA Civ 991; [2015] 1 WLR 909 |
Criteria and principles for extending the 26-week time limit in care proceedings to ensure just resolution. |
Applied to affirm that extensions beyond 26 weeks are permissible if necessary for justice and fair process. |
| Re S (A Child) [2014] EWCC B44 (Fam) |
Interpretation of section 32 of the Children Act 1989 regarding time limits and adjournments in care proceedings. |
Used to emphasize that justice must not be sacrificed for speed and that adjournments are appropriate where evidence is lacking. |
| In re S (Minors) (Care Order: Implementation of Care Plan), In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10; [2002] 2 AC 291 |
Principles on care orders, care plans, and the role of the court in overseeing placements. |
Referenced regarding the necessity of care plans when care orders are made and the court’s scrutiny of such plans. |
| Piglowska v Piglowski [1999] 2 FLR 763 |
Role of the Court of Appeal in providing binding guidance. |
Cited to explain the hierarchy and authority of guidance in family law proceedings. |
| Re B (A Child) [2017] EWCA Civ 1579 |
Summary of methods by which guidance can be given and relied upon in family courts. |
Used to distinguish informal guidance from authoritative or practice directions and emphasize the need for scrutiny and challenge. |
| In re L (A Child) (Family Proceedings: Practice and Procedure) (Practice Note) [2014] EWHC 279 (Fam); [2014] 1 WLR 2795 |
Principle that justice must not be sacrificed for speed in care proceedings. |
Quoted to reinforce that extensions beyond statutory time limits are justified if necessary for just outcomes. |
| In re W (A Child) (Adoption: Grandparents' Competing Claim) [2016] EWCA Civ 793; [2017] 1 WLR 889; [2017] 2 FLR 31 |
Assessment of proposed special guardians and the concept of a 'runner' in placement suitability. |
Applied to guide the court’s evaluation of the viability of special guardianship candidates. |
| Re H (A Child) (Analysis of realistic options and SGOs) [2015] EWCA Civ 406; [2016] 1 FLR 286 |
Statutory scheme governing special guardianship orders and the importance of local authority consent and leave applications. |
Used to explain procedural protections and the normal process for SGOs involving local authority consent and party status. |
Court's Reasoning and Analysis
The court carefully examined the judge’s decision to grant full care orders instead of SGOs, identifying three main strands of error: inadequate reasoning for care orders, reliance on informal and unapproved guidance, and procedural unfairness to the grandparents.
The judge recognized that the only realistic placement options were with the paternal grandparents, who had been positively assessed. His hesitation stemmed from the placements being untested and concerns about potential interference from the mother and father of S. The judge preferred care orders to ensure local authority control and a trial period before vesting parental responsibility in the grandparents via SGOs.
However, the judge did not evaluate the evidence or test assumptions about the merits and detriments of each order. The court found that the judge’s reliance on the concept of “short-term care orders” was legally incorrect, as care orders cannot be time-limited or automatically discharged. Additionally, the judge’s reliance on informal guidance from a High Court judge (Keehan J) advising that SGOs should not be made until the child has lived with the prospective guardian for a period was inappropriate because it lacked authoritative status, peer review, and opportunity for challenge.
The court emphasized that the statutory framework for SGOs does not require a period of residence before making an order, distinguishing SGOs from adoption orders, which have specific residence requirements. The court acknowledged the existence of research and debate about best practices concerning SGOs but noted that such materials were not before the Family Court judge and that authoritative guidance is needed.
Procedurally, the court found that the paternal grandparents were unfairly excluded from the proceedings: they were not joined as parties, had no access to documents or legal advice, and could not participate fully. This lack of access to justice was contrary to the interests of the children and the fairness of the process. The court stated that either an application for SGOs should have been made with appropriate case management directions or equivalent procedural protections should have been provided.
The court also considered the statutory 26-week limit for care proceedings, recognizing the tension between expeditious resolution and the need for thorough welfare assessments. It accepted that extensions beyond 26 weeks are permissible when necessary to ensure just outcomes, particularly in complex cases or where new realistic carers emerge late in proceedings, as here.
In sum, the court concluded that the Family Court judge failed to conduct a proper evidential evaluation of the options, improperly relied on unapproved guidance, and denied procedural fairness to the grandparents. The judge’s decision to impose care orders was therefore inadequately reasoned and unjustified.
Holding and Implications
The appeal is allowed. The care orders granted by the Family Court are set aside and replaced with special guardianship orders in favor of the paternal grandparents for each child.
The court found that SGOs are the only appropriate orders in all the circumstances, supported by uncontradicted assessment reports and evidence of successful placements. The decision restores procedural fairness by recognizing the grandparents as parties entitled to participate fully in proceedings concerning their role as special guardians.
No new precedent altering the statutory framework was established; rather, the court reinforced existing principles regarding the necessity of adequate reasoning, procedural fairness, and the proper use of guidance in family law cases.