This is a post by Sarah Phillimore

EDIT – 20th June 2018 the Court of Appeal  have now considered this issue of such ‘gloss’ upon the statute n the case of P-S (Children) [2018] EWCA Civ 1407 (18 June 2018), The CoA held that the Judge was wrong to make a care order instead of an SGO, relying on the local guidance which said that SGOs should not be made if the child had not lived with the prospective SGs for some time. If there were concerns about the appropriateness of the SGO, the correct response was to adjourn the final decision not make a ‘short term’ care order.

Recently I attended the Family Court at Worcester where I was representing a family member who wished to apply to be a Special Guardian to a new born baby. I was alarmed to be told by the local authority representative that there was a local direction that prevented a Special Guardianship Order being made unless the child had lived with the prospective Special Guardians for ‘some time’.

I asked to see a copy of this guidance/directive as, of course, this is not a requirement in the statute. When the court is being asked to make a SGO it looks at the welfare checklist in the Children Act and makes the child’s welfare its paramount consideration. There is no specific direction to consider how long the child had already lived with the prospective Special Guardians – and of course, if the child in question is a new born baby, its highly unlikely that child has lived much with anyone at all.

I was relieved to see that the guidance/directive was not in fact a prohibition on the making of a SGO where the child had not lived with the applicants – but it did seem to be adding quite a significant extra layer to the requirements of the statute.  See this post for more detailed discussion about how an SGO can be made under section 14 of the Children Act 1989.

I assume this guidance/direction must be a response to the general concern that SGOs were being made too hastily in cases where local authorities did not feel they had sufficient evidence to jump the hurdle of ‘nothing else will do’ that would justify the making of a care order with a plan for adoption. I discuss this further in this post which examines the huge rise in SGOs made alongside Supervision Orders.

But issuing local guidance in response to Special Guardian Orders that should not have been made,  is like changing the colours of your bucket when your roof is leaking. The roof needs to be fixed. If there really is such a serious and widespread inability of lawyers and social workers to prepare and analyse cases so that judges can make orders in the best interests of children, how reasonably can anyone expect piecemeal local guidance to fill the gap?

I also raise serious questions about the legitimacy of any such guidance which purports to add such a significant gloss to a statute. Lawyers and Judges cannot ‘make’ law’  – we must identify existing law and apply it. If the Children Act and its requirements for the making of a SGO are insufficient, those gaps must be filled by Parliament.

The relevant part of the local guidance/directive reads as follows. I have put my comments in bold:  
1. Special Guardianship Orders … In public law proceedings where the court is being invited to consider a placement with prospective special guardians should the court, assuming the threshold criteria are satisfied, (i) make a care order and leave it to the local authority and the prospective guardians to decide when the time is right to place the child with them and/or to support the prospective special guardians making an application for an SGO or (ii) keep the proceedings open under interim orders pending a time when the court considers it appropriate to make a SGO in favour of the prospective special guardians? The answer is that it all depends on the particular circumstances of each case. Exactly. This is why additional ‘guidance’ can often do more harm than good. Each case is dependent on its own facts and a consideration of what is in the best interests of the particular child involved. I suggest the following points may be of assistance to determine what is the right course in any particular case:
a. a SGO must not be made without the court having a full special guardian assessment report. It is an essential component of the court’s decision making process; this should go without saying. It is depressing therefore that it has to be said. 
b. a SGO should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians; this is alarming. This is not a provision in the Children Act. It seems to operate to exclude very young children from consideration. This is neither rational nor reasonable and is promoting a move away from considering the welfare of the particular individual child before the court. 
c. the special guardianship assessment report process must not be curtailed in an attempt to conclude proceedings within 26 weeks; again – should go without saying. Depressing it needs to be said. 
d. in some cases a child arrangements order may be the order which meets the welfare best interests of the child; Yes. Why even bother saying this? But if the matter before the court is in care proceedings then equally we need to recognise that child arrangement orders are not going to be a likely mechanism for keeping a child safe. Care orders can only be made if child has suffered or is at risk of suffering significant harm. 
e. where the care plan (providing for placement with the prospective special guardians and, in time, support for the prospective special guardians to apply for a SGO) is agreed and/or is approved by the court, the proceedings should be concluded with the making of public law or private law orders; Yes.
f. where a local authority cannot approve a placement of a child with prospective special guardians under the auspices of an interim care order (i.e. the requirements of placement or fostering regulations cannot be met) the court may sanction a placement under an interim CAO or, if the circumstances justify the same, under wardship;
g. only in exceptional cases should care proceedings be prolonged solely for the purpose of awaiting the outcome of a trial placement of a child with prospective special guardians and/or the completion of a SGO assessment report. Agreed – but this requires recognition that assessments must therefore be on going as soon as possible if they are to be finished within the timescales of 26 weeks. Judges are continually critical of late arrival of family members but we need them to start actually exercising their judicial authority over this and managing cases; the message needs to go out loud and very clear that there is no excuse for late arrival of family members as prospective carers. Everyone’s minds needs to be focused on what other family members could be available. And courts need to start having the courage to refuse to consider assessments of people who arrive late, unless there is exceptionally good reason and they really didn’t know what was going on.