England and Wales Family Court Decisions (other Judges)

Case No: ZE16C00232

IN THE FAMILY COURT AT EAST LONDON

 

 

Friday 2 December 2016

 

 

Before:

 

Recorder Sadd

 

Between

 

London Borough of Newham (Applicant)

 

And

 

L (First Respondent)

 

And

 

A (Second Respondent) (By the Children’s Guardian)

- - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - -

 

Mr Paul Pavlou for the Applicant

Ms Catherine Piskolti for the First Respondent

Mr Alistair Banks for the Second Respondent

- - - - - - - - - - - - - - - -

JUDGMENT (Approved)

 

 

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

Recorder Sadd:

 

Introduction

 

1. I am concerned with a child A, who is just one year old and who is the subject of care proceedings brought by the London Borough of Newham (Newham). A is represented by Mr Banks who takes instructions from the children’s guardian. The mother, L, is represented by Ms Piskolti. Newham is represented by Mr Pavlou.

 

Background

 

2. The background to the proceedings is that the mother who is just 19 years old was accommodated by Newham in September 2012 and placed in a foster placement.

 

3. Following the birth of A, the mother looked after A at her foster placement and at a residential family centre, from 9 November 2016.

 

4. The father, Mr K, does not have parental responsibility and has played no part in the proceedings.

 

5. Prior to the issue of care proceedings, Newham instructed Dr P to undertake a psychological assessment of the mother. In January 2016, Dr P identified the mother as being an emotionally vulnerable woman and recommended that her current therapist be approached by Newham to enquire how long therapy might continue, expressing a view that further work would be needed. No such enquiry was made by Newham until August 2016.

 

6. A parenting assessment was also undertaken by Newham with the assessor advising in March 2016 that Dr P should be asked to comment on the further type of support the mother needed. Newham failed to do this.

 

7. Care proceedings were issued by Newham on 13 April 2016. Concerns identified included the mother’s own vulnerability and her poor experience of being parented.

 

8. Following a series of case management hearings, including two non-compliance hearings, on 25 August 2016 and 7 November 2016, the case was listed for a contested final hearing for five days beginning 21 November 2016.

 

9. On 25 May 2016, the mother had put forward Ms B to be assessed as an alternate carer.

 

10. Following a favourable report, dated 10 October 2016, Newham sought a special guardianship order to Ms and Mr B (the proposed special guardians).

 

11. On 21 November 2016, the first day of the hearing, the mother made the brave decision that she would not oppose the making of the special guardianship order, following consideration of the analysis of the children’s guardian, who supported the making of the special guardianship order. This was on the basis that an appropriate support plan was provided for her and the proposed special guardians.

 

12. In light of the evidence before the court, including the assessments and the analysis of the children’s guardian, the court was satisfied that the welfare of A required the making of the special guardianship order. However, it was not possible to make the order on 21 November 2016 for reasons which will become apparent in the course of this judgment.

 

History of court proceedings

 

Case Management Orders

 

13. I record firstly some of the matters detailed in case management orders prior to my involvement in this case on 21 November 2016.

 

Hearing on 9 May 2016

 

14. On 9 May 2016, a direction was made for the solicitor for the mother to ask Dr P for recommendations as to what support should be put in place to assist the mother. This led to Dr P, on 17 May 2016, recommending a discreet piece of educative work be undertaken with the mother exploring with her how potential partners may present a risk.

 

15. On 9 May 2016, Newham was directed:

 

a. On receipt of the names proposed by the mother, to organise a family group conference and circulate the minutes. This was not done. This resulted in further directions in subsequent hearings, as late as 25 August 2016.

 

b. To serve by 31 May 2016 a brief statement in response to the further advice sought from Dr P and the support which would be put in place.  The statement was not filed until 12 July 2016 and said that a family support worker would undertake the work with the mother alongside her social worker.

 

c. To serve its final evidence by 25 July 2016. This was not served until the morning of the Issues Resolution Hearing on 2 August 2016.

 

Hearing on 2 August 2016

 

17. On 2 August 2016, the court made further directions including that Newham serve a statement by 9 August 2016 to explain:

 

a.       The delay of eight weeks in filing the statement to address: the recommendations of Dr P and the support which would be put in place; why the statement did not fully address the recommendations of Dr P and the support which the local authority intended to put in place.

b.      Why Newham had not put in place a family support worker.

c.       The delay in filing their final evidence.

d.      Why Newham had not assessed Ms B.

e.       Why no family group conference had been arranged.

 

18. The court also recorded “its complete and utter dissatisfaction as to the non - compliance in this case and the impact the delay has had upon the timetable and agreed that the Local Authority needs to address the delays that have occurred in a statement”.

 

19. On 9 August 2016, Newham served a statement in which they apologised for the delay in addressing directions, the explanation being essentially that it had been necessary to pass the case to a new social work team. The statement also said that a family support worker was not put in place as the mother’s own social worker was already working with the mother and would have already incorporated the work recommended by Dr P.

 

Hearing on 25 August 2016

 

20. On 25 August 2016, the court was still concerned that Newham had not provided details of how the work recommended by Dr P would be delivered and so directed a statement to be filed by 2 September 2016 to deal with this.

 

21. A statement was subsequently filed by the mother’s social worker in respect of this work, which said that the practice manager in communication with the mother’s social worker was told that the work that Dr P directed was work which had been covered by the mother’s social worker and that she would continue to address the issues that Dr P raises with the mother. As a result, the family support worker had not been commissioned but would now start from 1 September 2016.

 

Hearing on 20 September 2016

 

22. On 20 September 2016, the court recorded that the case could not be completed within 26 weeks as the progress of the case had been significantly delayed because of the litigation failure of the local authority and that it was necessary to extend the timetable for the proceedings in order to resolve the proceedings justly.

 

Hearing on 12 October 2016

 

23. On 12 October 2016, the court recorded that Newham sought a special guardianship order to the proposed special guardians and set the case down for final hearing with directions including that Newham should: 

 

a. By 14 October 2016, serve the following in respect of the proposed special guardians: DBS checks; medicals; the financial support package and the support package.

 

b. By 19 October 2016, serve a further statement in respect of the work recommended by Dr P with the mother.

 

24. Newham filed two further statements in respect of this work, which it was submitted on behalf of the children’s guardian and the mother, gave no reassurance that the work recommended by Dr P had been undertaken.

 

Hearing on 7 November 2016

 

25. On 7 November 2016, the court recorded that Newham proposed that A be placed with the proposed special guardians under a special guardianship order and that Newham confirmed it was still awaiting DBS and medical checks in respect of the proposed special guardians and that it had been consistently chasing these since the first request was made. Directions included:

 

a.       An extension of the time for service of the medical and DBS checks to 17 November 2016 and for service of the financial support package to 8 November 2016.

b.       PNC checks in respect of the proposed special guardians to be served by 17 November 2016.

 

26. Despite Newham’s proposal of a special guardianship order on 7 November 2016, Newham filed with the court a care plan, dated 8 November 2016,which stated that additional questions needed to be explored before Newham was confident that the placement would meet the child’s needs.

 

Final Hearing

 

21 November 2016.

 

27. On 21 November 2016, at the outset of the hearing, the court was informed by Mr Pavlou that:

 

a.       The medical checks, DBS checks, the support package and financial support package had been undertaken.

b.      Newham was now in support of the special guardianship order, the additional questions having been resolved to its satisfaction.

c.       The proposed special guardians had received legal advice, the order dated 7 November 2016 having recorded that Newham would fund such advice.

 

28. However, in the course of the day it became clear that the proposed special guardians had not received any legal advice.

 

29. The court was unable to sit in any event on 22 November 2016 and the hearing was adjourned until 23 November 2016, the plan being that the proposed special guardians were to obtain legal advice on 22 November 2016, on the basis that the parties and the court would be provided with the documentation required, in particular the support package.

 

23 November 2016

 

30. On 23 November 2016, the court was provided with an amended care plan dated 22 November 2016 proposing a special guardianship order. The court was also informed that:

 

a.       Despite the information given to the court on 21 November 2016, neither the DBS checks nor the medical assessments were available.

 

b.      The request for DBS checks for Mr B had only been received on 18 November 2016 and they would take up to three months to be available. The court was initially informed that the DBS checks had been requested on 7 November 2016 but it would seem that this was incorrect.

 

c.       The proposed special guardians had not been asked to sign any consent for PNC checks and none had been undertaken. This was rectified by them signing such consents at court.

 

d.      Ms B had DBS checks already as a result of an application she had previously made independently. She told the court that she had forwarded these to Newham in June or July and had queried with them whether, in light of this, it was necessary to have further checks but she had not received any reply.

 

e.       The proposed special guardians had not been able to get legal advice as their solicitor had not received a financial support plan. In the course of the day, a support plan was provided but it lacked the necessary detail, e.g. no named person was identified to assist the mother and the proposed special guardians in relation to contact or future communication and no timescales were given for the duration of the financial support.

 

f.       Ms B had attended a medical on 14 November 2016. The report was available on that date but the fee for its issue had not been paid by Newham and so it had not been issued. It was therefore arranged that Ms B attend the surgery in the afternoon with the fee to obtain the report.

 

g.      Mr B had not attended the medical on 14 November 2016 and so there was no report available for him. However, with the children’s guardian’s assistance, a private doctor was instructed to assess him on 24 November 2016 at 9 am, subject to the fee being paid by 4pm by Newham.

 

31. Following representations. I decided that it was not in A’s best interests to adjourn the proceedings to await the DBS checks and directed Newham to use its power to obtain the result of PNC checks on an emergency basis.

 

32. The issue of costs was raised by Ms Piskolti, who had prepared a detailed skeleton argument before the hearing, reciting the failures of Newham, including its failure to comply with case management orders. She made the valid point that, if Newham had complied with directions, the hearing could have been finalised on Monday 21 November 2016. Ms Piskolti also asked me to publish the judgment in due course naming Newham.

 

24 November 2016

 

33. In the course of the day the court was provided with:

 

a. The medical assessments of the proposed special guardians, Mr Banks having paid the necessary fee for the assessment of Mr B, as it had not been paid by Newham. The medical reports raised no issues.

 

b. The clear DBS check for Ms B, which she had obtained independently.

 

c. An e mail from the proposed special guardians’ solicitor detailing her concerns about the support plan, e.g. the timescales for receiving financial support. She requested amendments to be made urgently, particularly as she had agreed to see the proposed special guardians once more on an urgent basis that afternoon at 5pm to assist the court and the parties. An amended support package was provided at 4.08 pm, with both Mr Banks and Ms Piskolti still correctly raising concerns that it did not comply with Regulation 3 of the Special Guardianship Regulations 2005.

 

d. An email was received stating that the PNC checks were clear.

 

e. A support package was provided for the mother but this was written in the most general terms, e.g. no specifics were provided of when or where the mother would be moved to new accommodation. In addition, the social worker continued to state that she had undertaken the work recommended by Dr P, despite the mother’s assertion that she had not and the concern expressed by the children’s guardian in her analysis that Newham had not evidenced that the work had been undertaken.

 

34. It was therefore necessary to adjourn the hearing once more, in order to establish the outcome of the proposed special guardians’ meeting with their solicitor and for the mother’s allocated social worker to consider amending the mother’s support plan in light of the comments of Ms Piskolti.

 

35. The issue of costs was raised again by Ms Piskolti who provided me with two authorities on wasted costs. I warned Mr Pavlou that I would be considering exercising my powers at the end of proceedings to make an order for costs against Newham.

 

25 November 2016

 

36. The court was provided with a further care plan dated 24 November 2016, which stated that, “on the basis of the assessments and the recent deterioration between the mother and the applicants Newham was not confident that the making of the special guardianship order necessarily met the best interests of A but that Newham respected that further delay would not be in A’s best interests and so, if the court were minded to make a special guardianship order, the support package was specified”.  In something of an understatement, Mr Banks described this apparent change of mind in Newham’s thinking after three days at court as confusing, with clarification being needed as to what Newham was proposing.

 

37. The amended care plan also provided that contact would be supervised by Newham at a contact centre until July 2017, in contradiction to the plan agreed at court on 21 November 2016 that the contact of the mother would be once a month initially supervised in the community by Newham for 12 months.

 

38. The court was provided with a further support package dated 24 November 2016, with a similar reservation expressed in relation to the making of the special guardianship order. 

 

39. However, at the outset of the hearing I was informed that I should ignore these documents and that the care plans and support plans were in the process of being amended once more and had been requested by the end of the day.

 

40. In any event, the proposed special guardians had not been able to get legal advice due to the lateness of receipt of the support plan on 24 November 2016. However, a further appointment was available at 10 30 am on Monday 28 November 2016, subject to receiving the amended support plan by 4 pm.

 

41. By 2 30 pm, the court had not received an amended care plan or support plan and so adjourned until 3 30pm, with a direction that they should be filed by that time.

 

42. At 3 30 pm,  I was informed by Mr Pavlou that he had received an email from Newham stating that the amended care plan and support plan could not be provided today. Mr Pavlou was not able to say when they would be provided or able to give a clear explanation for the failure to produce the documents. It would seem, however, from the purported explanation given on 28 November that this important task was just not prioritised by Newham.

 

43. In light of the absence of the key documents, Mr Pavlou sought an adjournment to Tuesday 29 November 2016. In view of the delays to date, I refused such an application and directed that the Deputy Director of Children’s Services attend at 10am on Monday 28 November 2016 to explain to the court why a final care plan and support package were not available by the fourth day of a final hearing.

 

28 November 2016

 

44. I was provided with an amended care plan. However, it contained contradictory descriptions of the proposed contact arrangements, with the result that it was not clear whether contact would be supervised in the community or at a contact centre or how long it was proposed that supervision would continue.

 

45. Moreover, no amended support packages were made available by the outset of the hearing. However, I was informed that they would be available shortly and that it had been possible to rearrange the appointment for the prospective special guardians to see their solicitor to 12 noon. It was therefore still hoped that the order could be finalised that day.

 

46.  The Deputy Director of Children’s Services, attended the hearing and was unable to offer an explanation for Newham’s failures but apologised on behalf of Newham and assured me that a full enquiry would take place into such failures.

 

47. In the course of the day an amended final care plan and support package were made available. While the care plan supported a special guardianship order, the care plan and support packages were amended on a number of occasions, throughout the day. The consequence of this was that a final care plan and support package were not available for the court until late afternoon, with the result that it was not possible for the solicitor for the proposed special guardians to consider them or the draft child arrangements order. In light of this, it was necessary to adjourn the hearing once more, with directions that Newham serve on the solicitor for the proposed special guardians the amended care plan, the support plans and draft orders.

 

48. Ms Piskolti renewed her application for the judgment to be published, supported by Mr Banks. The application was opposed by Mr Pavlou. In light of this I directed skeleton arguments to be filed on this issue.

 

2 December 2016

 

49. The court was able to make the special guardianship and child arrangements orders by agreement, having received confirmation that the care plan, orders and support packages had been approved by all the parties and the proposed special guardians, subject only to the timing of the payment of the lump sum which I was informed would be paid by 5 December, the latest date acceptable to the proposed special guardians.

 

Analysis

 

50. My paramount consideration is the welfare of A and in coming to my decision I must take into account the welfare check list laid out in S 1 Children Act 1989.

 

51. Having considered all the evidence before me, I am satisfied that the welfare of A requires me to make the special guardianship order to the proposed special guardians, together with a child arrangements order specifying that the mother shall have contact as agreed, namely a minimum of once a month for a period of four hours from 1 February 2017, with Newham supervising such contact for the first six months and thereafter until January 2018 if required.

 

52. It is to the mother’s credit that she supports the making of this order in the best interest of her child. Such a decision will have been painful and difficult for her to make.

 

53. The children’s guardian states, in her analysis, that there has been a clear failure on the part of Newham in relation to the mother and that she has been let down on a number of occasions. She goes on to say that she is not convinced that Newham has evidenced that the work recommended by Dr P has been undertaken and stresses the importance of it being undertaken regardless of the outcome of the final hearing.

 

54. I would echo the importance of this work and the concern which has been expressed by Ms Piskolti about Newham’s failure to put in a family support worker until September.

 

55. The mother is young and vulnerable and requires practical and emotional support from Newham, including support to help her in coming to terms with the loss of her child.

 

56. I turn now to the failures of Newham in its conduct of these proceedings.

 

57. The case management orders record the court’s concerns at the delay in listing the final hearing, caused by the failure of Newham to comply with court orders, and the court’s concern about the support being provided to the mother.

 

58. Moreover, as a result of the continuing failure of Newham, it was not possible for the court to make the agreed special guardianship order on 21 November 2016, the first day of the hearing. This was in light of the lack of medical assessments, any PNC checks and a support package for the proposed special guardians, all of which were due to be filed, pursuant to the order of 7 November 2016, by at the latest 17 November 2016.

 

59. As a result, the proceedings were protracted until Friday 2 December 2016 entailing a hearing of six days, rather than one and a delay in reaching a decision for A.

 

60. The work, which should have been done before the hearing, had to be undertaken during the hearing, with the advocates taking a large role in this, under the oversight of the court and with the care plan and support packages being amended repeatedly.

 

61. It is completely inappropriate for a hearing to be conducted in this way. It is a waste of court time and publicly funded legal costs. The only other option would have been an adjournment which would not have been in A’s interests.

 

62. I also have no confidence that an adjournment would have resulted in Newham taking the necessary steps, given its failure to comply with directions to date.

 

63. In addition, it is to the mother’s credit that she attended court every day despite the intolerable strain the hearing must have put on this young and vulnerable mother, particularly in light of the difficult decision she had made on the first day.  

 

64. Moreover, it would seem that the court was given inaccurate information at the outset of the hearing, when I was informed that the DBS checks, support package and medical assessments had all been undertaken.

 

65. From the face of the order, it would also seem that the court was given inaccurate information on 7 November 2016, as the order records that Newham confirmed that it was awaiting DBS checks and medical checks and had consistently chased these since the first request was made, while the request for the DBS checks for Mr B would seem to have been received on 18 November 2016 and none were submitted for Ms B.

 

66. I do not know where the responsibility for the provision of such inaccurate information lies. However, it is clear that the failure of Newham to comply with case management orders has not only lengthened the hearing unnecessarily but ran the risk of the need to adjourn the hearing, which would not have been in A’s interest.

 

67. Such an adjournment has only been avoided by the combined efforts of the advocates and the court.

 

68. The situation was compounded by the changing position of Newham not only in relation to the proposals for contact but, of more concern, in relation to the making of the special guardianship order. While its final care plan supported the making of the order, prior to this, Newham supported the making of the order at the hearings on 12 October 2016 and 7 November 2016; filed a care plan with a changed position on 8 November 2016, deeming further enquiries being necessary; supported the making of the order at the outset of the hearing on 21 November 2016 and filed an amended care plan on 24 November 2016 expressing reservations about the making of such an order. The stress of such changes of plan, on the mother and proposed special guardians, would have been intolerable.

 

69. I turn to the question of costs.

 

70. Mr Banks and Ms Piskolti ask me to order costs against Newham in relation to costs incurred by the need to attend at court after the hearing of 21 November on the basis that, if Newham had complied with directions, proceedings could have been concluded on 21 November.

 

71. I have the power to make a wasted costs order against Newham’s legal representatives, if I am satisfied that they have behaved in a way which is improper, unreasonable or negligent. However, as I have stated in the course of the hearing, I do not believe that it is right to prolong these proceedings to exercise a forensic analysis of Newham’s decisions and actions in this case, with a view to deciding where the fault lies, namely whether it is with the legal department or with children’s services.

I take into account that it is the responsibility of children’s services, to formulate the care plan and support package as part of the special guardianship assessment.

 

72. I do however find that this is a case where it is appropriate to  make an order for costs against Newham on the basis of the discretion I am given under r. 44.2 (1), Civil Procedure Rules 1998, taking into account r. 44.2 (4), which provides that, in deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including the conduct of all the parties, with r 44.2(5) stating that conduct includes conduct before as well as during the proceedings.

 

73. In coming to this decision,  I accept that orders for costs against Local Authorities are infrequently made and for good reason, as stated by HHJ Bellamy in Coventry City Council v X,Y and Z (Care Proceedings: Costs) ( 2011) 1FLR 1045.

 

74. I also accept that it is unusual to order costs in children’s cases but, given the failures of Newham to comply with directions and the resulting delay caused in making the final orders, Newham quite properly does not resist an order for costs of the advocates’ attendance at court from 23 November 2016 onwards. I find this to be the appropriate order, which in my judgment reflects the conduct of Newham, rather than the broader order that Newham pay the costs incurred during the period from 22 November onwards.

 

75. The issue between the parties is the basis of the assessment of such costs under r 44.3, Mr. Banks, supported by Ms Piskolti, arguing that I should direct an assessment on an indemnity basis while Mr. Pavlou asks me to direct an assessment on the standard basis.

 

76. In coming to my decision, I have taken into account the following authorities:

 

a.       An order for indemnity costs is a wholly exceptional order in family proceedings Re B (Indemnity Costs) (2008) 1FLR 205 and

 

b.      An award of costs on the indemnity basis is only justified where a paying party has been responsible for conduct which is unreasonable to a high degree, not ‘merely wrong or misguided in hindsight'.  Kiam v MGN Ltd (No 2) [2002] 1 WLR 2810, CA.

 

77. I also take into account that this is not a case where Newham was unreasonable in bringing or pursuing the proceedings and that I have already made an exceptional order for costs against Newham on the basis of its conduct.

 

78. Having considered all these matters, I do not accept that this is a case where it is appropriate to award costs on an indemnity basis and direct that the costs of the advocates’ attendances at court from 23 November 2016 be paid by Newham and assessed on a standard basis.

 

79. I turn lastly to the question of whether this judgment should be published with Newham being named, as requested by Ms. Piskolti and Mr. Banks and as resisted by Mr. Pavlou.

 

80. My starting point is the Practice Guidance issued by the President of the Family Division on 16 January 2014, Transparency in the Family Courts: Publication of Judgments (2014).

 

81. Paragraph 1 of the Guidance provides that it is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.

 

82. The Guidance distinguishes between two types of judgment, namely those that the Judge must ordinarily allowed to be published (paragraphs 16 and 17) and those that may be published (paragraph 18).

 

83. Paragraph 20 of the Guidance also provides that : in all cases where a  judge gives permission for a judgment to be published, public authorities and expert witnesses should be named, unless there are compelling reasons why they should not be so named; the children who are the subject of the proceedings in the family courts and other members of their family should not normally be named in the judgment, unless the judge otherwise orders, and anonymity in the judgment should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families,  unless there are compelling reasons to do so.

 

84. It is submitted by Ms. Piskolti and Mr. Banks that this is a case where paragraph 16 applies namely that permission to publish a judgment should always be given whenever the Judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media.

 

85. In the alternative, it is argued that paragraph 18 applies, namely that the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication and the Judge concludes that permission for the judgment to be published should be given. The Guidance goes on to make clear that in deciding whether to publish a judgment, the Judge shall have regard to all the circumstances, including the rights arising under any relevant provision of the European Convention on Human Rights.

 

86. Mr. Pavlou submits that this is not a judgment that must ordinarily be published and that it is not in the public interest to publish the judgment. His essential case is as follows.

 

87. Publication increases the risk of the family, child and special guardians being identified and the special guardians’ views need to be obtained on this issue.

 

88. Publication will only seek to lessen the confidence of the public in Newham which may cause repercussions in other cases. He also asks me to take into account that Newham has engaged an independent person, an ex-Ofsted inspector, to review its practice and that I have signalled my intention to refer this judgment to the Designated Family Judge who will be discussing the case with Newham.

 

89. I grant the application to publish this judgment and find that the criteria in paragraphs 16 and 18 are both met for the following reasons:

 

a.       Publication is in the public interest as this case clearly demonstrates the delay and costs caused by non-compliance with court directions and sends a clear signal that the court deprecates such failures, in the hope that publication of such judgments may contribute towards a change in Local Authority practice.

 

b.      There is no compelling reason why Newham should not be named in line with paragraph 20 of the Guidance. Newham is a public body which should have public accountability and the catalogue of errors in this case is such that it should be held accountable both to the mother and also to the public.

 

c.       The anonymity of the family and prospective special guardians can be protected in the judgment which will bear the standard rubric set out in paragraph 21 of the Guidance.