Special Guardianship Assessment & Case Law (You Need to Know)

It is important that you are aware of key case law when undertaking a Special Guardianship assessment.

I’m not a lawyer, I took my law modules in university like many of you. In this post, I have found information about relevant case law and from the trainings, I have attended.

You should of course do your own research and I remind you of my disclaimer. Please check that any information you use is still accurate and that there have been no changes to case law since this article was published.

Below you will find the Case Law you need to be familiar with when completing the Special Guardianship Assessment.

You will find a brief outline about the case law giving background and reasons why it came about.

What is Case Law?

Case law is the law that is created by the courts. It is the law that is established by following decisions made by Judges in earlier cases. Case law resolve any ambiguity when making decisions on current cases.

Relevant Case Law & Special Guardianship Assessment

It is important that you understand case law so that you will not find your special guardianship recommendations later being questioned.

This was the case for a judge and social workers, who were found to have misinterpreted the implications of Re B when analysing the placement options for a young girl in relation to a Special Guardianship Order versus an adoption order.

You can read the full Community Care Article, “Court orders rehearing of case where social workers ‘misunderstood’ case law”.

Here is an outline of the main Case Law that you should be aware of.

Case Law 

  • Re B (A Child) (Care Proceedings)[2018] EWCA Civ 20, [2018] All ER (D) 74 (Jan)

This case law is the court ruling on a decision to place a child with her siblings’ adopters, even when there was a viable family placement, which was upheld.

The case concerned a girl B, who was a little over a year old by the time of the final hearing in August 2017. B had a full sibling, H, who had been placed for adoption in 2016. Neither of B’s parents were able to care for B and did not put themselves forward to do so.

A cousin and her partner had been positively assessed.

The court of appeal decided that the fact of a full sibling in an adoptive placement should be weighed in the balance when considering placement for adoption even when there is a viable family placement available.

What does this mean practically for assessing social workers?

The judgment makes clear that in Re W (discussed below) a positive assessment of a family makes that option a ‘runner’ not a ‘winner’.

What is required is a global holistic assessment of the realistic options for the child with principles of paramountcy considering their welfare throughout their life in a manner that is proportionate and in which any ECHR Article 8 rights are engaged.

When there is information about a prospective adopter placement, it cannot be ignored but this does not createcompetition between family and adopters’.

Therefore, the existence of a sibling in a prospective adoptive placement can be considered, alongside the other options, when analysing the pros and cons of each realistic placement.

  • Case Law – Re W (A Child) (2016) [2016] EWCA Civ 793

Re W was an appeal case against a Judge’s decision to reject an adoption application in favour of a special guardianship order.

The Court of Appeal said the judge had failed to identify “significant errors” in social work evidence, and a “fatally flawed” welfare analysis, in reaching his decision.

The social workers, the appeal judges found, had misunderstood the ‘nothing else will do’ benchmark.

They had mistakenly jumped to the conclusion that just because a family placement had become available it was the right option (the child’s maternal grandparents came forward as potential carers, having not known about the child before).

In doing so they had failed to consider the impact on the child’s welfare, given she had lived with the adopters for two years and was attached to them.

case law and sgo
  • Case Law- Re B-S

It is the obligation of the Local Authority to implement the order which the court has determined is proportionate to work. The Local Authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order.

  • Re H (A Child) (Analysis of Realistic Options and SGO’s) [2015] EWCA Civ 406

Although the Court has the power to make such an order its own motion in accordance with section 14A (6) (b) CA 1989, that should not be the default position.

Such an order is a significant step in a child’s life that is intended to have long-term consequences and the protections that surround it should be respected.

  • Re R (A Child) [2016] EWFC B3

R born 20 March 2015 was placed in foster care

“17 August 2015, R moved to live with Maternal Aunt and Uncle. 

On 15 September 2015 Special Guardianship Orders were made in their favour in respect of R.

Regrettably, on 1 October 2015, R returned to his foster placement at the request of the Maternal Aunt following the breakdown of her marriage to the Maternal Uncle caused by his misuse of the Special Guardianship Order Allowance to fund the purchase of drugs and alcohol for gambling.

On his return to foster care, it was clear that R had suffered neglect.”

Final thoughts: Why Case Law and Special Guardianship is important

We’ve covered the main case law you should be aware of and should apply when completing the Special Guardianship assessment.

Don’t find yourself in the position where your analysis or recommendation is being questioned, make sure you have researched and understand the basis of your recommendation.

When you are looking at your recommendations and care planning for children and prospective special guardians, you should be aware of the above case law.

You will need to be able to decide which option to apply.  

We know that each case is unique and individual. You have to look at each special guardianship assessment on a case-by-case basis. No two cases are the same, however, you should use case law as a guide when this is relevant to the SGO assessment in order to reach the recommendation that is in the best interest of the child.  

You can find out more about case law at bailii.org

Special Guardianship Info –  Giving SGO a Voice