Care Proceedings: Potential Special Guardian
22 December 2022
Are there circumstances in which a potential special guardian should be refused permission to become a party to care proceedings? That was the question before the Court of Appeal after a Recorder had refused Mr B’s application, identifying evidence that would inevitably cause any application made by him for leave to bring a Section 8 order to fail and therefore confirming that there was no role for him to play in the proceedings: S, Re (Children: Party Status) [2022] EWCA Civ 1717 Moylan, Peter Jackson, Nicola Davies LJJ
Mr B met the Respondent mother shortly after she arrived in England in 2014. After a brief cohabitation, the mother became pregnant with a boy, C, now aged 5. Mr B is not C’s father. Mr B and the mother again began to live together and he supported her during the pregnancy and was present at C’s birth. They all lived in Mr B’s home until 2020 when the mother obtained her own tenancy. Throughout Mr B was involved in C’s care and a close bond developed between them. More recently C had been diagnosed with ASD[1] which placed particular demands on his carers.
The following year the mother gave birth to D. Her mental health deteriorated and she and the children moved in with Mr B. Later she was detained under section 3 of the Mental Health Act 1983. Before being taken to hospital she asked for C to be cared for by Mr B. D was placed in foster care.
The local authority issued care proceedings in respect of the children and an interim order was made on the basis of an interim care plan that C remained with Mr B with a direction that he be assessed as a special guardian.
Two local authority reports described the strength of the relationship between C and Mr B, but despite these reports C was shortly afterwards taken into foster care after a hearing of which Mr B was given no notice.
Allowing the appeal, Peter Jackson LJ said that the court needed to consider the broad contours of the care proceedings. The best outcome, by unanimous consent, would be for the mother to be able to recover the care of both children, but at the time of the Recorder’s decision there was no certainty about that.
The Recorder could not legitimately determine on the basis of the available information that any application made by Mr B would inevitably fail and that there was therefore no role for him to play in the proceedings. The court’s task was to decide whether his case was “a runner” not whether it was “a winner”.
The salient features that should have led the court to grant the application were (1) the importance for C of his relationship with Mr B, particularly in the light of his special needs; (2) the lack of any similarly important adult relationship, apart from with his mother; (3) the relatively moderate gravity of unproven allegations made against Mr B; (4) the requirements of natural justice in the peculiar circumstances of C’s removal from his approved interim carer; (5) the benefit to the court in having all realistic options before it for C’s sake; (6) the inability of Mr B to participate effectively without party status in circumstances where all parties had dismissed his case; (7) the need to avoid delay.
The Recorder should have identified (a) that the nature of the proposed intervention was appropriate to the circumstances, whether or not it would ultimately be successful; (b) that the applicant had an unusually strong connection with the child for someone who was not a relative, and (c) that there was no significant risk of intervention harming the child.
The outcome of this appeal was particular to its facts and it would be unusual for a potential special guardian to become a party to proceedings, but the case underscored the importance of judges considering carefully any combination of features which made a case unusual therefore justifying an unusual order, whilst at the same time ensuring that due process was observed.
[1] Autistic Spectrum Disorder
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