In the second part of an introduction to special guardianship orders, Sue Spencer looks at the recent Re S decision


Although the actual decision was obviously of huge significance to the parties themselves, the primary legal significance of the recent Court of Appeal case of Re S (a child) (adoption order or special guardianship order) [2007] EWCA Civ 54 lies in the analysis of special guardianship orders (SGOs) offered by the court's judgement.



The appeal arose from differing views of the basis upon which the child in the case should live with the carer, who, by the time of the appeal, all parties agreed was the right carer for this child. Judge Kushner at first instance found that birth mother and proposed carer (the foster carer) held each other in unusually high regard. She also found that the mother had made huge improvements in her life and was now in a settled relationship with a good man. The child displayed very challenging behaviour and, in the end, Judge Kushner did not think that the mother was strong enough to parent such a challenging child properly.



The question then was - should the child be adopted or placed with the carer under an SGO? At first instance, the judge placed the child under an SGO, of her own motion. She found that an SGO 'would provide a legal expression for [the child's] loyalty to both the appellant and her mother' (paragraph 104). This was upheld by the Court of Appeal.



The analysis of SGOs and the comparisons made with adoption in the judgment are of general application:

l Whilst there are similar criteria for the court to consider in deciding whether to make an adoption order or an SGO, one crucial difference is that an SGO, being a section 8 order, runs only until the child is 16 or 18. Section 1(2) of the Adoption and Children Act 2002 makes it clear that the court must consider the child 'throughout his life' when considering making an adoption order;

l An SGO restricts the exercise of parental responsibility by birth parents and terminates any local authority parental responsibility. It provides far more 'exclusivity' for the holder of the SGO than a residence order (paragraph 43);

l Adoption orders end the parental responsibility of the birth parents and are not just exclusive, but excluding;

l SGOs can be made against the wishes of parents. The concept of 'dispensing with unreasonably withheld consent' applies only to adoption matters;

l Both types of order are an interference with the pre-existing legal relationships within the birth family, but from an article 8 perspective (the right to respect for private and family life), the SGO is considerably less intrusive. At paragraph 49, the court said 'the fact that the welfare objective can be achieved with less disruption of the existing family relationships can be properly regarded as helping to tip the balance'; and

l An SGO will not have the same effect in 'skewing' the legal relationships within a household as would an adoption order (paragraph 57).



On this last point, Mr Justice Hedley's decision in S and B v Newport City Council [2007] FL 217 is of interest. The child in that case was six years old and had been placed with grandparents since the age of six months. Also within the household were a young cousin (age unreported) and two of the grandparents' own children, who were aged 19 and 13. The principal reason for preferring the SGO to an adoption order was the guardian's concerns about the somewhat unnatural legal relationships an adoption order would produce. The grandchild would immediately become his natural uncles' brother and also his natural cousin's uncle. The cousin was not to be considered for adoption, but was to remain in the family.



Delivering the judgment of the Court of Appeal in Re S, Lord Justice Wall was at pains to point out that S and B was not a template (paragraph 61) and that the oddity of legal relationships was not a bar to adoption. Each case must be considered on its own facts.



An SGO is not without its disadvantages. The absolute security which comes when there is an adoption order, with the severing of all legal ties with the birth family, can be a serious drawback in some cases, but can be beneficial in others.



An adoption order cannot be rescinded, though a second adoption order can be made. An SGO can be varied or discharged, but only with leave of the court, and that will only be given if there has been a significant change of circumstances (section 10(7A)). However, the position is different in relation to other section 8 orders:

l Residence order - leave may be needed by the class of person applying pursuant to sections 10(4), (5) and (5A) of the Children Act 1989, but in addition, leave is required for all other applicants. This is the effect of the slightly tortuous wording of section 10(7A);

l Other section 8 orders - a parent may apply for any other types of section 8 order without leave.



This led Lord Justice Wall to comment at paragraph 65: 'The absence of a general requirement for leave may seem to be surprising. SGOs are designed to produce finality, and there is, accordingly, logic in the proposition that a parent require leave of the court to reopen the issue of the order itself or of the child's residence. But, if so, one might expect similar considerations to apply to other forms of order under section 8. An essential component of the advantages produced by an adoption order for both adopters and children is that they are, in most cases, free from the threat of future litigation. If the same protection is not available in respect of SGOs, this may be a substantial derogation from the security provided.'



He went on to say that the court should consider supporting an SGO with a section 91(14) bar on all remaining section 8 applications by parents without leave, and that there was 'no doubt' that the court could make such a barring order 'indefinite' (paragraph 66). However, since the hurdle which a parent seeking such leave has to overcome is currently quite low, this was identified as a 'possible weakness in the scheme' (paragraph 67).



The SGO adds another level of order under which a child can be placed with a non-birth parent. It can have significant advantages over an adoption order in the right case, but can only be ordered once the full welfare checklist for both an SGO and an adoption order have been addressed, and the advantages and drawbacks identified for any particular child.



District Judge Sue Spencer sits at Leeds Combined Court Centre