Family Law Update: Family Justice Council interim guidance on special guardianship

Practitioners will be familiar with the case of P-S (Children) [2018] EWCA Civ 1407, a successful appeal against the making of final care orders. At the conclusion of the original proceedings all parties were in agreement that Special Guardianship Orders (SGOs) should be made to the children’s paternal grandparents. However, the first instance judge declined to make SGOs on the basis that the children had never lived with their proposed carers. Instead the court proceeded to make final care orders to test the placement. This was on the basis that if all went well a future application could be made to discharge the care orders and substitute them with SGOs for both children.

The Court of Appeal in allowing the appeal gave some general guidance as to the approach that should be taken when considering the making of SGOs at the conclusion of care proceedings.  However, at the time Sir James Munby, then President of the Family Division noted “that there is a real need for authoritative guidance to sit alongside the statutory materials”.

The first step towards that authoritative guidance has appeared in the form of interim guidance issued by the Family Justice Council with the approval of the current President. What is clear is (i) there is greater emphasis on the parties identifying potential alternative carers at an early stage in the proceedings; (ii) that all parties are expected to be proactive identifying alternative carers, and (iii) that where appropriate the court shouldn’t be bound by the straitjacket of the 26 week time limit.

The key practical points to be taken from the guidance are:

• The local authority initial evidence must clearly identify by reference to a detailed genogram or similar any potential alternative carers.
• At the commencement of the proceedings all parties should file and serve position statements in advance of the first CMH and these should include details of proposed alternative carers.
• The Guardian’s Initial Analysis/position statement should explicitly address the identification of alternative carers and their contact details. 
• The identification of alternative carers should not be governed by the parents approval or disapproval but must focus on the child’s best interests.
• If the whereabouts of the prospective carers are unknown active steps should be taken to locate them.
• Potential alternative carers who have been negatively assessed must be advised of the importance of making any challenge without delay.
• In cases where realistic individuals are identified late in proceedings, proposed carers live abroad or where further time is needed to assess the quality of the relationship between the child and the proposed carer an extension of the 26 weeks’ time limit may well be justified.

The guidance itself can be found here.

Victoria Burgess is a member of the Garden Court Family Team.

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