Deirdre Fottrell QC and Laura Briggs acted for the Appellant, the children’s guardian, and Sam Momtaz QC and Sharon Segal acted on behalf of the Association of Lawyers for Children who were given permission to intervene, in the recent Court of Appeal decision in Re P-S . This is essential reading for any case in which a Special Guardianship order is contemplated. The case concerned two children. Both sets of paternal grandparents were assessed by the local authority positively as special guardians for the children and the local authority and guardian supported that as being in their best interests. The grandparents were not represented before the court at first instance where the court declined to make SGOs and instead made final care orders . The judge was concerned about SGOs being made in circumstances where the children had not lived with the prospective special guardians before. The judge relied upon informal guidance given by a High Court Judge in his role as a leadership judge which suggested that children should live with a prospective special guardian for an appreciable period of time before an SGO is made. The Court of Appeal allowed the appeal and concluded the judge was wrong to have made final care orders . The Court of Appeal confirmed that there are no residence requirements prior to the making of an SGO, and the court should not have relied on informal guidance to that effect. In the event that the court did not have the evidence needed to dispose of the case properly then the court must adjourn the proceedings even if the case is taken over the 26 weeks. The President stated that “the outcome is not to be determined by rigorous adherence to an inflexible timetable if justice is thereby potentially denied”. The decision has provided important guidance for practitioners in identifying the realistic placement options for a child at the beginning of the proceedings, highlighting the need for pre proceedings planning by the local authority and reminding practitioners of the need for early consideration of SGO applications to ensure case management directions can be made in a timely way.
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As a result of the submissions made, the Court of Appeal referred the issue of necessity of guidance in SGO cases to the Family Justice Council.