Hello and welcome everybody. So this is Session two, the, the Special Garish board as key themes and development session. My name is Safta Mahmoud and I'm talking to you uh on behalf of uh data law. So this then is like say session two. And what I'm doing is going through some elements with you on special guardianship. So last time you remember, I spent some time looking at special guard orders, their effect, the criteria and the procedure looked at variation and discharge of these orders. And we spent some time going through the position with some of the regulations and aspects of this and assessment and support. I also spent some time and looking at the position with the 26 weeks today. Then I'll be developing the themes in this. We'll be looking at particularly the interrelationship between special guardianship and child arrangements, orders and some of the case law that's developed in so far as that's concerned over the years. And uh we'll also look at the public law working group recommendations to see what the position is there going forward. Ok. And uh this course is particularly are beneficial to those of you who are involved in working in Children cases, both in private practice and also for local authority representations. So we're looking at the law as of September 2023 right? So special gunship, first see child arrangement sorts as I mentioned in the previous session, the case of VB is very important. A 2013 decision and that decisions will need to be made by the court as to what order if I need to make at the uh the conclusion of the proceedings. So if the court is satisfied that the child should be residing with, say a particular family member, then the question would be on what basis on under what order is it adoption order? Is it fostering? Is it special guard? Is it child arrangements they order or otherwise? Mhm. And this is where this case of a can council um and is used for his 2018 decision. Well, this is one where the mother had caused the child uh injuries. She had grossly exaggerated and fabricated symptoms to a child which then necessitated unnecessary medical intervention. And the mother was seeking more contact with the child, the child would be the the extended family member, mother was seeking more contact than what was being offered. And the judge did say that more frequent contact may well meet the mother's needs or not that of the child. And therefore a very clear message needed to be sent to and received, received by the mother at about about the very limited role that she now had in her son's life in that regard. So you can see the thinking behind that in terms of the effect of Special Guard Orders versus child arrangements orders in in that concept that the special gu will have that enhanced that elevated parental responsibilities that I mentioned earlier. Now back in 2019, the Family Justice Council really followed on from that case of VPs that I mentioned in the last session. That's that case of VPs of 2018 where the concept of short term care orders shouldn't be employed. Uh If there is a need to test a placement, then we we should be looking to extend the proceedings. If that means going beyond 26 weeks, then that's what we need to do. And uh we shouldn't be uh really looking to uh complete the proceedings until we're satisfied that the order is the right one under the circumstances and the right placement. So one of the things that the I mean Justice Council recommended was that uh there should be uh early use of family group conferences to identify alternative family members. So that way you can identify family members and get them assessed as early as is possible. The need to get geno grams done. So local authority needs to do Juno Grams needs that needs to be governed by what's in the best interests of the child, of the positive approval by parents. All parties, including the children's guardian should be doing position statements for the case manager hearing such that who they we should be assessed and who they feel should be assessed in the circumstances. Again, the purpose of this is to ensure that assessments are done as early as possible. And also to ensure that one has assessed the child's relationship with the prospective special guardian. Before the assessment is completed, this may involve assessing the child in placement, for example. And if the matter does go beyond 26 weeks, then one has to consider under what regime, for example, is it regulation 24 the care planning and placement, the case review regulations of 2010 in England or the equivalent of those in Wales, the 2015 regs and regulation 26. Is it through section eight order? Ie your child arrangements with order. Is it interim supervision order? For example. So if you are going to extend the proceedings under what regime is that done? Now, one of the other things which the VPs case picked up on, of course, was the need for uh access to justice and consideration of join. And the question then is should a connected person be joined as a party if they seek to become a special guardian? This was something that was raised and looked at in this case of E CD in uh 2020 and one of the points which was raised in this case was that there was uh a viability assessment done of the Patter land which was just about uh satisfactory, which then led to a more in depth assessment which was uh not uh positive. Uh And uh the question really on appeal was whether or not the art should have been joined as a party. And the court said there was no justification for the art being joined as a party. She made no application and the evidence before the court gave insufficient support for a special report to be made in her favor, her, her position therefore, was not in any way undermined by her not being a party to the proceedings. Now, there was no uncertainty as to whether a care order or a plan for foster care should be made and the option of a child live with the aunt pursuing to an order was really considered, the judge was satisfied on the fact that that was not going to be a viable option if the judge was able to conclude and determined issue by way, by way of making a care order and plan in foster care without the auntie being uh represented. So if on that basis, there was no failure in that regard. Now, as I mentioned, there has been consideration of special guardianship put together by the public law working group. This was headed up by Mr Justice in a few years ago, uh which was a group which was commissioned by the president of the family division to look at best practice in Special Guard among other factors. So there is this report that's become available. It's, it's called the recommendations to achieve best practice in child protection and family justice systems. And this became available in March 2021. There is the appendix to this which sets out the best practice guidance for special guard. And one of the things this emphasizes is the need for initial family and friends assessments to be done as early as possible. So again, it ties in with what I mentioned earlier in terms of the interim guidance put together by the Family Justice Council on where the plan is Special Guard. It needs to then address how the family members will be included in any proceedings in so far as that's concerned including party status, access to independent legal advice and the support as well in that regard. So that's one of the aspects there. And it also emphasizes that once and if local authorities commence proceedings, then given the 26 weeks doesn't necessarily fit in with the assessment process for Special Guard. How do we deal with that? And you can see here that the solution that the uh public law working group said is that you need to take this these cases out of the database and put them in a separate database. So as to take them away from the 26 track, if the court does allow the 26 weeks uh extension. So that way it's not going to be skewing the figures in that regard. So that's one of the things in that regard. Now, the court should be drawing up a timetable for the outstanding issues that need to be resolved before any final order is made. And if it is felt that the child should be placed with a prospective special guardian before any final order is made. So if it's anticipated that uh that that is needed before any final order is made, then the best practice guardian says that the placement of the child with a perspective, special guardian should be no more than 12 months from the interim placement of the child or the pro perspective, special guardian just to make sure that that period is then used in in those circumstances. And the purpose of a special guardianship order is to provide this firm foundation on which to build a lifelong permanent relationship between a child and a carer. And therefore when it comes to supervision orders, the recommendation was that these should not be used really as a vehicle by which support and services are provided by the local authority, the services and the support that are to be provided to a special guardian uh should be provided for and set out within the special guardianship support package. And that should be appended and attached to the order. So you shouldn't really be having special supervision orders made alongside SG orders and therefore, the cases where it's appropriate or necessary to make a spec supervision order alongside a special guard order will be very small in number. Now, this then brings me on to this case of FNG, which is a really useful case uh which uh looks at the issue around the interrelation between care orders and uh special guard orders and really looks at the issue of whether or not it's possible for a special gut board to actually sit alongside a um a care order in the circumstances. So this was a court appeal decision. Leaving judgment had done by Lord Justice Baker on the 30th of April uh 2021. And uh it's, it's a case where it involved two Children. They were twins, age 10 and they were subject to special guard orders made and their special guardian was, in fact their former stepfather and the appellant was the children's mother. Now, what was unusual about this case and therefore why it, it really is a very, very important case in that regard is that the Children were subject not only to special guard ship orders, but he also took a which is unusual and the question therefore that the court had to therefore consider an appeal as a matter of law was as to whether or not the two orders can even coexist ie a supervision order. Sorry, a special guard order alongside a care order can the two orders even coexist. And if they can, whether the circumstances on the particular circumstances here was such that it was right for the two to coexist and therefore really should the special gunship order continue or should it actually have ended in the circumstances? So that was the really the nub of uh of this case. So just going through some of the facts, the factual background on this case, just to kind of put it into context for you to see how it works and why this issue arose. Is this uh some years before uh the mother of these twins, she had become pregnant with the twins um to another relationship. And then she, she uh left a man that was the father she met and started a relationship with another man who is now the respondent to these proceedings and who later became a former, who became later the stepfather of his Children. So basically her mother was pregnant, she left their father, met another man. He moved in with her and he looked after her. Uh And uh later they married, uh the Children were born, uh Children had no contact with their natural father regarding this man who was their stepdad as their father. Uh And like I say, this man and the mother later married and they were together for many years and he therefore brought up the Children joined with their mother. They divorced after a few years, the Children continue to live with their mother but continue to see their former stepdad several times a week later, the mother formed a relationship with a violent partner. And that's where the local authority stepped in and they started care proceedings and this is where the children's former stepdad, he came forward and he wanted to be assessed. So there was an assessment done of him and the Children were placed with him under interim care orders. Now, what the local authority found was the stepfather, he needed a lot of support. He did just about cope. But the psychological assessment that was done of him showed that he was extremely low cognitive ability. So he, he was meeting the children's needs as best as he could. But as you can imagine, he was finding it incredibly difficult. And as a result of his limitations, the local authority could not approve him as a foster parent. And um special ship assessment was carried out by the pas parenting assessment model software assessor. And that concluded that despite his learning disability, he had evidence, his ability to meet the Children emotionally and successfully. So a SG uh order was recommended and at the finder here in the court did in fact make a special ground order in his favor. And the court also made thereafter a care order in favor of the local authority. So they made the SG order and then they made a care order thereafter as well. Now the Children are continue to live with this man. Remember he was now their stepdad. But the arrangement broke down. Uh the local authority who remember had the benefit of the care order as well. They sought to remove the Children from his care. They gave him 14 days notice to terminate the placement to remove the Children. So they gave that notice. Their view was to remove the child, Children and placing foster care and uh they did so they removed a child and this is at this stage, they request that a special guard order be discharged. That would mean of course, that the former stepfather would then lose his parental responsibility. The Children were no longer in his care. And uh therefore he really exercise of pr would simply diminish in that regard and go away. And this is where he opposed the discharge of the SG order. So he was very concerned, understandably as to the consequence of the order being discharged and that he would lose his parental responsibility. Now, this is where the court said this. The court said that whilst the Children act states that the making of a special guardian guardianship order does discharge a preexisting care order, there's no provision for the other way ie for care order is made that doesn't discharge a pre-existing SG order. Unlike uh existing section eight order supervision, what's called a tenant's order. So therefore, if as in this case, a SG order is made first and then you've got a care order which was what happened here? The care order doesn't automatically discharge the SG order. It remains in force unless the court discharges it. Ok. So this is pursuant to section 91 13 of the Children Act. So it remains and the question therefore was, should it remain uh or uh should it be uh discharged? Now, why are these provisions in place in the first place in the sense that why is it, it appears that a SG order and care order can coexist and his lordship really wanted to investigate that. Well, as in this case, the SG order had been in place for several years. And special guardian here will have established a close relationship with Children. These Children were age 10, they had lived with their former stepdad for most of their young life so far. Uh And uh it would be no problem too wrong for the SG to be discharged upon the making of a care order in some cases was if the special guardianship order had only been in place for a short period and the role of the special guardian had not really been established and it may be more appropriate in those cases with SG order to be discharged. So obviously, everything turned on the circumstances and the welfare of the uh the Children concerned. So what is the purpose then of the SG or do the court ask themselves, you know, why, why do we have these in the first place? And the court did say that um special guardianship does of course provide that long term support for the child. Uh There's no reason for the sense of security continue to commitment to identity and belonging to come to an end when the child moves away. So just because these two Children now living in foster care away from the special guardian, doesn't, doesn't mean that that sense of commitment continuity just goes away and in fact, he can remain throughout that child's childhood and beyond. And it would be really contrary to the purpose of a special grant ship order. If it did just simply come to an end automatically upon the making of a care order. So the court did say that on the facts, it is possible for the court have jurisdiction to allow both care orders and SG orders to coexist or the circumstances in which both will be made will be quite rare. And here, the court did say that given the fact this man had been a significant, paying a figure to these Children for a significant part of their young life so far, even though the Children were not going to be living with them any longer, they were now going to be in foster care or species of the care order. It was still nonetheless relevant and therefore in the children's welfare, best interest for him to retain that Special Guard Order for their benefit in that regard, in particular. It's a very very useful case to look at. Now that then brings me on to this other case which is uh looking at special ship order and, and chart arrangements. This is the case of A Can council M and H and T. This 2021 decision handed down by Mrs Justice Judd. And what this case really looks at is uh the situation surrounding leave, the situation surrounding the interrelationship between special guard orders and child arrangements orders. So the case itself involved two applications before the court. One was the application by the grandmother under section 10, 9 of the Children at which were seeking leave uh or permission to apply for either a special grant support or a child arrangements or to specify and living with with respect to a child aged seven months. And secondly, the application involved one where the local authority had applied under the inherent jurisdiction for permission not to carry out an assessment of the grandmother as a possible carer. So there were in fact two applications before the court that the parents were unmarried and only the mother had parental responsibility for the child. Ok. Now the baby that was born uh wasn't planned a couple mother, father, I've been studying at university. They decided that really they were unable to take on that responsibility for the child, given their position in their lives and they sought for this child to be adopted. So they contact the local authority before the baby was born. And the social worker also met the mother's family who were supportive of mother's decision to hand the baby over for adoption. Uh Father said to shook that his mother i paternal grandma also supported the decision. Maternal family members have visited. Some photos were taken for life story work. But just before the baby went to an a a foster placement, which was a foster to adopt placement. So that that then potentially materialize into adoptive adoptive placement. The social worker received a phone call from the grandmother saying that she'd just become aware of the child's existence and uh she wanted to care for the baby. And uh she said that her son had told her that if she went ahead with this, he would never speak to her again. So you've got a grandmother here who is basically wanting a child to be placed to for her to be assessed whether he had a child being placed with her. So social workers spoke to the parents. They were clear that the baby should not be placed with her grandmother. Father's mother was a single parent with depression and she was unemployed, living in social housing. And the parents asked the local authority not to assess their grandmother or even share any further details of what was happening. She was very distressed to grandmother. She couldn't understand why the parents are really asking for this. So there was obviously that conflict between the the father and his mother in that circumstance. Now this is where the local authority had in fact lodged two applications. Firstly, they asked for an order asking the court to exercise its inherent jurisdiction to determine whether the parents consent to the adoption should be accepted. In accordance with section 19 of the adoption Children Act ie they were given that consent that given it to caf should be accepted or should there be any assessments under of family members in this regard? And secondly, the local authority lodged an application under the how jurisdiction when they were asking the court to make a declaration as to whether it is lawful for the local authority not to assess the maternal grandmother. Now, this is where the paternal grandmother also applied for permission to apply for child arrangements, special guardianship orders. Uh So the parents attended a caf curse mother gave her consent for the child to be adopted and uh mother confirmed that she didn't want to be notified of an application for or the actual making of the adoption order. So what would the court do here? Well, the court looked at a duty that was placed upon the local authority in terms of assessing wider family. And this is where the court took the view that uh there is uh that even though there is a procedure for a parent to relinquish or pay for adoption, it doesn't mean that there is no duty on the local authority to consider the wider family. And in fact, uh this brings in the expectation that local authority would consider the child's family as potential carers for the child. The specific reference to the 2019 case of, we hate that some of you will feel familiar with this case. That Mr Justice Cobb specifically looked at the statutory and practice guidance and his lordship did say that there is not an absolute duty upon local authorities to assess family member that each case has to be looked at in its own facts. So there may well be some situations where it would not be appropriate to assess the family member. There is also section 17 which imposes which impose a general duty upon local authorities to safeguard and promote the welfare of Children within their area. So far is consistent with their duty to promote the bringing of Children by their families. And section 22 C eight, which says that there is a preference for the place of Children with an individual who is a relative friend or other person connected with a child in that regards. So there are those expectations there in terms of the position then, uh with the primary legislation, the court referred to re B this 2012 decision where the court made clear that neither paramount principle in section one of the Children nor the welfare checklist applied to such applications. So putting it simply what the court was saying is, yes, there is that test for whether or not we give leave to the grandmother to apply for a special guard order to sorry to give notice to be assessed as a special guardian and also uh to apply for the uh child arrangements. Liquid order. There are the factors we do have to look at the prospects of success. Uh We do have to look at uh her connection to the child, the reasons for the local authority being involved and the local authority plans for the child. And here on the facts, the court did say that the fact that the person may have an arguable case may not necessarily be sufficient to enable them to have leave under section 10 of the Children Act. There is room in cases concerning Children should be checked at a very early stage. Uh The courts of broad discretion to do that, there's no absolute entitlement to an assessment. We're looking to care for the child. So that was made clear in the case of the of this 2011 decision. And furthermore, it is for a judge in each case to make a fair determination of the claims of the parties and the issues and the prospect of a grandparent taken over the child's care must always be looked at carefully. Uh There aren't going to be levels of really investigation in that section 10 9 is directed at the risk to child or disruption occasion by the proposed application and any delay that occasion by or associated with the application is an obvious source of disruption and harm and must be clearly considered under this provision. So ultimately, Wayne all those factors up, the court took the view that granting the grandmother's application would cause disruption to the extent that the chance of welfare would be harmed. A further assessment of the grandmother, no matter what the outcome could not take away the fact that any decision to place a child with her and emotional harm that was likely to cause even with a high quality of care, particularly given the conflict between her and her son and uh her son's partner. So with that in mind, given that given the emotional harm, given the delay, given the disruption that would cause the child's welfare in making determination, the court dismissed the grandmother's application and therefore did grant the local authority's application for her not to be assessed. So you can see very difficult decision which the court had to make on the facts in what was in the child's welfare best interest. Ok. So this brings this part of the session to an end. And you can see then that in this session, I've spent a fair bit of time going through with you special Guard orders, how they work the law practice the procedure of these and also some of the developing case law on this. I hope it's been a useful session for you. And thank you as always for listening and I'll speak to you next time. Thanks very much. Bye for now.
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