England and Wales County Court (Family)

Her Honour Judge H :

I am dealing today with an application by X Local Authority in respect of a little girl called S-L.  The Local Authority initially commenced proceedings not very long after S-L’s birth.  She was born on 17th May 2008 and, not very long after that date, she was found to have suffered an injury, so that the Local Authority, on 24th July 2008, issued an application for a care order.  Matters have proceeded somewhat slowly and it is only today, 2nd February 2010, that the proceedings are being concluded. 

After the removal of this little baby from her parents’ care, she was placed with a lady named SF, who is her maternal great aunt.  That great aunt today asks me to make a special guardianship order in her favour rather than making a care order to the Local Authority.  The Local Authority also ask me to a special guardianship order.  The Guardian, although initially expressing quite recently reservations about the making of that order, today concludes that the making of a special guardianship would be in the best interest of S-L.

Up until yesterday, when the matter was listed for the first day of a final hearing, the mother was seeking a further assessment.  As a result of discussions which occurred yesterday, that is no longer her position.  However, she does ask the Court to consider making a care order, placing S-L in the care of the Local Authority rather than making a special guardianship order.

I have to remind myself of some rather basic principles under the Children Act 1989.  Obviously, the first of those is that S-L’s welfare is my paramount consideration in deciding what order to make.  I have to consider the welfare checklist set out in that Act; and that has been addressed within the Guardian’s report and amplified verbally today by Mrs B in terms of some of the issues which concern S-L.  But perhaps, in the context of this case and the two competing orders which are put before the Court, the most important principle of the Children Act is that the Court should start by making no order at all and then work upwards to the most serious order rather than looking to make the most draconian order initially and then move downwards.  There is no doubt in my mind whatsoever that making a special guardianship order in respect of this little girl is less draconian than making a care order. 

Mrs B, on behalf of the child, has pointed out some of the advantages to making a special guardianship order rather than a care order. To my mind, perhaps the most significant for S-L is that SF will have parental responsibility for her and will be able to make day to day decisions about her life without interference from the Local Authority.  The Local Authority support her in her role as special guardian but do not have the same ability to interfere in the child’s life.  For instance, if S-L wanted to stay with a school friend or a relative overnight, the Local Authority would have to be consulted; and that seems to me an unwarranted interference in the life of a child who everybody acknowledges is receiving excellent care in a placement she has been in now for a considerable period of time.  Overall, there is no doubt whatsoever that SF provides an excellent standard of care for S-L and, for her to have to turn to the Local Authority for permission to do a large number of things which normal families do, would be an unwarranted interference in her family life with S-L.

I also bear in mind the case law, which Miss P has helpfully and hastily looked up for me, which is that a care order should not be made in order to secure resources of the Local Authority.  The argument put forward by the mother, who would ask me to make a care order, was that it would enable the Local Authority to be involved in the arrangements for contact.  That involves a resources issue.  But, of course, I am satisfied that the Local Authority, on the basis of the special guardianship support plan, are willing to be so involved at least for 12 months in any event.  Furthermore, the Local Authority should not in general terms (although I accept that I have done it in the past) have imposed upon them a care order when they do not seek one.  I am helpfully assisted by the Guardian, who has carefully considered the matter and moved her position to support the making of a special guardianship rather than a care order for all the reasons which have been outlined.

In all the circumstances of this case, this little girl is entitled to have the most normal of family lives that she can have, given the fact that she cannot live with her parents.  I am satisfied that that can be accomplished by the making of a special guardianship order, which removes the statutory role of the Local Authority in her life.

I would like to conclude by thanking SF for her commitment to this little girl.  She has been placed with her for many months now.  SF has shown a commitment to the child; a commitment to the Court proceedings; an ability to work with the Local Authority; an ability to work with the Guardian; and an ability to give the highest possible standard of care to this little girl.  I thank her on S-L’s behalf for that.  I hope they continue to thrive.  There has been a lot of tip-toeing around SF’s age today, but there is no doubt at all that, not only does she provide S-L with a high standard of care, but that those around her are willing to assist her in that.

I make the order which appoints SF as special guardian for S-L.  There is a preamble in the order which sets out the arrangements for contact.  I know the Local Authority will facilitate that certainly for the first 12 months and may well be involved thereafter because they have a duty to review the position in 12 months’ time in any event.

As far as the issue of costs is concerned, I am going to leave Counsel to draft the order in due course, but there needs to be public funding assessment of the First, Second and Third Respondents’ costs.  As far as SF’s costs are concerned, I would order the Local Authority to pay her costs to a maximum of £3,500 excluding VAT, to be assessed if not agreed.