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E (A Child) (Special Guardianship Order: Public Law Proceedings), Re
Factual and Procedural Background
The appeal concerned a six-year-old child (“Child E”) and a special guardianship order made in favour of her foster carer at the conclusion of care proceedings. The child’s mother and maternal grandmother appealed. [1][2]
Child E was first removed shortly after birth in 2020 following concerns about the mother’s mental health. In 2021, a special guardianship order was made in favour of the maternal grandmother, and Child E lived with the maternal grandmother and mother until March 2024. [3][4][5]
Following further concerns, Child E was removed in March 2024 and placed in foster care. After an unsuccessful foster placement, she moved to her current foster carer, with whom she had lived for nearly 18 months by the first-instance hearing. She continued to have supervised contact with her mother and maternal grandmother. [6][7][8][9]
At the final hearing, the Local Authority and the child’s Guardian supported an SGO in favour of the foster carer. The mother and maternal grandmother sought Child E’s return, separately or jointly, and indicated that they would accept supervision orders. [10]
The first-instance judge made the SGO on 4 February 2026, applying a welfare-balancing exercise without expressly determining the statutory threshold or proportionality. The Court of Appeal allowed the appeals and remitted the matter for rehearing. [1][11][12][13][14]
Legal Issues Presented
- Whether the court, when making an SGO in favour of a foster carer at the conclusion of care proceedings, must determine the threshold criteria under section 31(2) of the Children Act 1989. [11][15]
- Whether the court was required to undertake a necessity and proportionality assessment rather than applying only a simple welfare balance. [12][16][17]
- Whether the first-instance judgment adequately addressed the factual basis of the alleged risks and the realistic care options. [18][19][20]
Arguments of the Parties
Mother’s Arguments
- The judge adopted the wrong legal approach by failing to recognise that the SGO was sought within public-law care proceedings and would permanently place Child E outside her birth family. [21][22]
- The judge should have determined the threshold criteria and assessed whether the proposed SGO was necessary and proportionate. [22][23][24]
- The judge failed to give proper weight to the mother’s family relationship with Child E and focused excessively on the stability of the foster placement. [25]
- The assessments relied upon were outdated, while more recent evidence indicated that the mother’s mental health had stabilised, she was engaging with treatment, and she had completed a parenting programme. [26][27][28]
- The judge’s reference to “a risk” of relapse did not adequately assess the likelihood, consequences, or management of future harm. [29]
Maternal Grandmother’s Arguments
- The judge’s legal approach was flawed for the same reasons advanced by the mother. [30]
- The realistic options included placement with the maternal grandmother, the mother, or both, potentially supported by a supervision order. [30]
- The extent of the interference with family life required an approach analogous to section 31(2), and the SGO required a proportionality assessment. [31][32]
- By declining to determine the threshold, the judge improperly excluded return with a supervision order from meaningful consideration. [33]
Local Authority’s Arguments
- The judge’s decision was sufficiently reasoned and was not manifestly wrong. [34]
- The judge was not legally required to determine threshold, provided that he made sufficient findings identifying the harm from which Child E required protection. [34]
- The findings concerning the mother’s mental-health relapse risk and the relationship between the mother and maternal grandmother supported the decision. [35]
Child’s Guardian’s Position
- The judge had at least impliedly considered threshold by finding that Child E was likely to suffer significant harm if cared for by the mother and maternal grandmother. [36]
- The Guardian accepted, however, that threshold should have been determined because supervision orders formed part of the proposed arrangements, and that necessity and proportionality required consideration. [36]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 | Necessity and proportionality in child-removal decisions. | The first-instance judge should have applied these principles to the SGO. [12][37][38] |
| In re H-W (Children) [2022] UKSC 17, [2022] 1 WLR 3243 | Necessity and proportionality apply to intrusive orders with far-reaching consequences. | An SGO in favour of a foster carer fell within the same broad category of intrusive case. [39][37][40][41] |
| In re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43, [2006] 1 WLR | The child’s relationship with the natural family is an important factor, although there is no automatic parental presumption. | The Court considered that the judgment had not properly recognised the significance of Child E’s birth-family relationships. [25] |
| L-G (Children: Risk Assessment) [2025] EWCA Civ 60, [2025] 1 FCR 695 | Proper assessment of the likelihood and nature of future harm. | The first-instance judge’s reference merely to “a risk” of relapse was insufficiently analysed. [29] |
| In re F and another (Children) [2021] EWCA Civ 622, [2022] Fam 78 | The significant and potentially permanent effect of an SGO. | The authority supported treating an SGO as requiring a serious proportionality evaluation. [32] |
| Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407, [2022] 4 WLR 42 | The court must make sufficient findings to identify the harm from which the child requires protection. | The Local Authority relied on this principle to defend the adequacy of the first-instance judgment. [34] |
| Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54, [2007] 1 FLR 819 | Special guardianship is intended to provide legal permanence. | The Court used this to demonstrate the significant effect of an SGO. [42] |
| In re M [2021] EWCA Civ 442, [2022] Fam 53 | The purpose of special guardianship is to achieve permanence for the child. | The principle reinforced the need for careful analysis of an SGO’s long-term consequences. [42][43] |
| In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680 | The threshold protects children and families from unwarranted state intervention and separates the threshold, attribution, and welfare questions. | The Court held that threshold reasoning was typically appropriate before making an SGO at the conclusion of care proceedings. [44][45][46][47] |
| K-H (Children)(Care Orders: Proportionality) [2025] EWCA Civ 1368, [2025] 4 WLR 116 | The court should adopt the same approach when assessing likelihood of harm under section 31 and risk under the welfare checklist. | This supported using a structured threshold analysis when evaluating the SGO. [48] |
| Re N (A Child: Placement Order: Proportionality) [2025] EWCA Civ 154 | A structured approach to risk, welfare comparison, and proportionality. | The Court referred to it as part of the established proportionality framework. [49][50] |
| F (Children: Placement Orders: Proportionality) [2026] EWCA Civ 990 | The court must consider likelihood and consequences of harm, risk reduction, comparative welfare, and proportionality. | The Court adopted the structured questions as applicable by analogy to the SGO decision. [51][52][53][54][55][56] |
| Re T (Children: Risk Assessment) [2025] EWCA Civ 93, [2025] 4 WLR 97, [2025] 2 F.L.R. 263 | A structured seven-question approach to risk, welfare, and Article 8 proportionality. | The approach illustrated the analysis required when choosing between realistic care plans. [57][58][59][60][61][62][63] |
| Re A (Special Guardianship: Competing Applicants) [2018] EWCA Civ 2240, [2019] 1 FLR 687 | An adequate proportionality evaluation is required when an SGO places a child outside the birth family. | The authority directly supported allowing the appeal because the necessary proportionality assessment had not been undertaken. [64][65] |
Court's Reasoning and Analysis
The Court held that an SGO gives the special guardian parental responsibility and permits its exercise to the exclusion of others with parental responsibility. It therefore creates permanence and constitutes a significant interference in the child’s relationship with the birth family. [66][67][68][69]
Although section 31(2) did not technically apply because the judge was not making a care or supervision order, the court held that it should typically determine whether the threshold criteria are established before making an SGO at the conclusion of care proceedings. Exceptions may exist, but none applied here. [15]
This was particularly important because return to the mother or maternal grandmother with a supervision order was one of the proposed options. Without determining threshold, the judge risked effectively predetermining that option as unrealistic rather than properly analysing it. [18][70]
The threshold analysis also protects families from unjustified state interference, provides a factual foundation concerning the nature and level of harm, and assists the court in making clear findings about disputed matters. [47][17][48][71][72][73]
The Court further held that the first-instance judge was wrong to apply only a simple welfare balance. Because the proposed SGO was intrusive and potentially permanent, the judge had to assess whether it was necessary and proportionate, including by examining the likelihood and consequences of harm, the possibility of reducing risk, the comparative welfare advantages and disadvantages of each realistic option, and the impact on Article 8 rights. [16][37][17][74][41][52][75]
The first-instance judge had identified risks arising from the mother’s mental health, conflict within the family, and the possibility of further disruption. However, he had not sufficiently analysed the likelihood of relapse, the updated evidence about the mother’s condition, or the disputed factual matters underlying the Local Authority’s case. [76][77][78][79][20]
The Court therefore concluded that the judgment lacked the required threshold structure and proportionality analysis, despite recognising the pressure under which the first-instance judge had worked. [80][81][19][82][83]
Holding and Implications
The appeals were allowed and the matter was remitted for rehearing. [20][14]
The rehearing must address the applicable threshold issues, make clear findings on significant disputed matters, and apply a structured necessity and proportionality assessment before deciding whether an SGO in favour of the foster carer is justified. [19][82][83]
The decision establishes that, in comparable cases, an SGO made at the conclusion of care proceedings should not be determined by welfare balancing alone where it would permanently remove a child from the birth family.
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