Legal Update: Discharge of SGOs

In a recently published serious case review [No: 2021/C9028] a child, at the conclusion of care proceedings, was made subject to a special guardianship order (SGO) to two paternal family members. Some 21 months later, this order was discharged following an application by the parents, supported by special guardians and paternal family. The court appointed a Cafcass reporting officer to advise the court on welfare matters. Incorrectly, neither the child nor the local authority were made parties to the discharge proceedings. The reporting officer interviewed the child who did not wish to return to the parents’ care. The local authority did not oppose the discharge. The order to discharge the SGO was made by consent. It is reported that the “transition plan” to the parents’ care was neither adhered to nor supervised. As a result, the child returned to the family home where the local authority’s perception of the apparent improvement in the relationship between the parents and the ability of the mother to protect this child and newly-born siblings was not sustained.

If the SGO is made at the conclusion of care proceedings, the local authority that issued the care proceedings is automatically a party to the application for leave to discharge the SGO. However, there is a risk that notice may not be given, especially if the local authority has no continuing involvement with the child and, more so, if the child is no longer living in the area of the court that made the special guardianship order.

The two-stage process is designed to “filter” discharge applications to give some stability to the care arrangement for the child and the special guardian – see Section 14D(3) of the Children Act 1989. The applicant, usually a parent, must have the court’s permission to issue the discharge application and show at this first stage that there has been a “significant change” in circumstances to persuade the court that a full hearing of the application to end the order should go ahead. The parent is unlikely to have legal advice when making their application and is unlikely to know who must be told of the application. Court staff dealing with the paperwork may not be aware that this order was made in care proceedings, treating it as a straightforward private law application to discharge the SGO or for a Child Arrangements Order. There is a risk that relevant information is not with the court either at this first stage or at the full hearing if permission is given, with the child returning to the care of the parent or another person in the family without full awareness of the risks for the child and the child’s wishes not being considered.

Information about how many such discharge applications are heard without the local authority being served with notice is hard to come by, but it would seem there is a risk of gaps in the procedural steps in the system.

Practitioners at CoramBAAF’s SGO special interest group have raised this as a matter of concern, which suggests that this may not be a rare occurrence.

POINTS FOR PRACTICE

• Social workers and their legal advisers may need to review and agree a procedure with their local family court committees so that the council is notified of any applications that may alter a private law order made at the conclusion of care proceedings.

• Court staff need to be aware and have a system in place to confirm if the order was made in care proceedings and that the relevant local authority is served with notice. Serving notice is a requirement of the Family Procedure Rules – PD12C.

• Local authorities may wish to ensure that the court uses a central point of notice to the authority and that the legal team is copied into any such notice.

• Court staff need to be aware that if the child is a party to proceedings the court must consider whether a children’s guardian should be appointed. Where there have been care proceedings, the original guardian should be re-appointed, if possible.

• If practicable, the same tribunal that made the original order should hear any application for leave to discharge the SGO, and the bundle from the care proceedings should be disclosed into the discharge proceedings.

• If a Cafcass reporting officer is appointed and council social workers are contacted, they need to be aware that the local authority – or the authority where the child lived previously and that started the care proceedings – must be made a party to the proceedings from the outset along with the child.

• Special guardians are not entitled to free legal representation and may feel pressured to agree with the parent: they need to know that they can approach the local authority for SGO support, including help with legal fees, if an application to discharge is made.