This issue was considered by the Court of Appeal in the case of Re F and G (Discharge of Special Guardianship Order) heard on 5th March 2021 with judgment being handed down on 30th April 2021 and clarification of this point comes as welcome news. (link to judgment below)
The principal issues arising on this appeal were:
- Whether as a matter of law the two orders can coexist and
- If they can, whether in the circumstances of this case the judge was wrong to allow the SGO to continue.
The Judge at first instance refused permission to appeal but did state that in doing so, he was following convention in allowing the Court of Appeal to decide whether to grant permission, but for that convention, he would have been minded to grant permission “in order that the issues raised in this case could be considered at an authoritative level” which evidences what we had learnt to be the case, namely that opinion was divided as to whether these 2 orders could be made alongside one another.
On the facts of this particular case, the 2 Orders were made at the conclusion of the care proceedings, the Court having undertaken an analysis as to risk and determining that a Care Order was the proportionate final Order providing for the children to remain placed with their former step-father (the only person whom they identified as their father), a placement they had been in since the commencement of care proceedings. This was not opposed but that matter was complicated by the fact that the step-father had not completed the full fostering assessment and the absence of him holding Parental Responsibility for the children meant that the placement could not be regulated by way of the usual mechanisms.
The solution identified was to make the SGO followed by the Care Order, the sequencing of those Orders being important since if the SGO had followed then the Care Order would have been discharged.
Conversely, the Court of Appeal decision highlights a great deal of statute supporting the fact that an SGO is not discharged upon the making of a Care Order. Furthermore, the Court of Appeal stated that “Given the complexity and gravity of cases that come before the family courts, it would not be right to deprive judges of an option which Parliament has made available through its carefully drafted provisions” and therefore whilst the statute may have been drafted without this particular application in mind, there was no bar to the placement which had been identified as best meeting the needs of these children, being regulated in this way.
Whilst this clarification is welcome news, this case does raise the important issue as to how the non-biological parent/child relationship can and should be recognised by the law.
The second ground of appeal as to whether the Judge was wrong to allow the SGO to continue has been remitted and that decision will therefore be considered further. In the event that the SGO is discharged, the parental responsibility of this important adult in the lives of these children will also be discharged with no alternative remedy available in law to address that. This poses the question as to whether the law has adequately responded to how family life has changed over the years, which in my opinion, it does not seem to have done.
You can read the judgment for yourself here: F & G, Re (Discharge of Special Guardianship Order)