Birmingham City Council v LR & Ors

This is the first appeal to reach this court under the Special Guardianship provisions contained in sections 14A to F in Part II of the Children Act 1989 (the 1989 Act) and the consequential Special Guardianship Regulations 2005 (SI 2005 / 1109) (the regulations). Sections 14A to F of the 1989 Act were inserted by section 115(1) of the Adoption and Children Act 2002 (the 2002 Act) and came fully into effect on 30 December 2005.

The appeal is brought by the Birmingham City Council (the local authority) against a decision made by His Honour Judge Cardinal sitting in the Birmingham County Court on 3 August 2006. It raises three questions of law which, the local authority argues, have important practical implications for this local authority and for local authorities generally in cases in which the question of special guardianship arises. They are as follows: -

Mr Michael Harrison QC, who appeared in this court for the local authority, invited us to answer the first two questions in the negative. He would like us to answer the third question in the affirmative, but reluctantly submits that we cannot, as a matter of law, do so.

The factual context in which the appeal arises is not contentious, although the outcome of the case was, when we heard the argument, disputed. We can, accordingly state the facts shortly. The local authority has brought care proceedings under Part IV of the 1989 Act in relation to a female child M, who was born on 17 September 2005, and who is thus now aged 15 months. It is common ground in those proceedings that the threshold criteria under section 31 of the 1989 Act are satisfied, and that neither of M’s parents is capable of caring for her. The local authority’s case before us was that the court should, in due course, make a final care order, and that M should be placed with adoptive parents who are not members of her family. M is currently in the interim care of the local authority, and living with foster parents.

The mother’s case was that M should live with her parents, the child’s maternal grandparents, whom, for the purposes of this judgment, we will call “the grandparents”. The grandparents, who had party status in the care proceedings, wished M to live with them under a special guardianship order. The court can only make such an order in the grandparents’ favour, however, if the grandparents have obtained leave (the word used in the applicable provisions of section 10 of the 1989 Act) to make an application for it. As at the date of the judge’s order on 3 August 2006 the grandparents had neither obtained such leave, nor had they made an application to apply for leave.

Pursuant to section 14A(6)(b) of the 1989 Act, the court can also make a special guardianship order of its own motion, if it considers that such an order “should be made”. However, for reasons which will rapidly become clear, that sub-section is not directly in play in the instant case.

The historical position was that there had been previous care proceedings concerning another child of the same parents called P, who was made subject of a care order in August 2005 and remained in his father’s care. The father, however, made it clear that he was not in a position to care for both children.

The local authority appeals against paragraph 4 of an order made by His Honour Judge Cardinal on 3 August 2006 in the care proceedings. The judge was giving directions, for which the solicitor instructed by the child’s guardian had applied. There was no formal application for any relief relating to special guardianship before the judge. The context for the directions appointment was a request by the guardian that the grandparents should confirm in writing their commitment to a previously ordered assessment of their capacity to parent M.

Paragraph 4 of the judge’s order requires the local authority to undertake an assessment of the grandparents under section 14A(9) of the 1989 Act, even though they had not, at that point, obtained the court’s leave to make the application. The local authority’s case, quite simply, is that, on 3 August 2006, and in the circumstances we have already set out, the judge was not entitled, as a matter of law, to require the local authority to undertake that assessment.

One of the consequences of the case being before Judge Cardinal on 3 August 2006 for directions and without any formal application having been made by the grandparents, was that he did not give a formal judgment, nor was he invited to do so by any of the parties. It also appears from the transcript that counsel for the local authority was taken by surprise when counsel for the grandparents announced that, subject to obtaining public funding, the grandparents intended to make an application for a special guardianship order.

The grandparents’ position on 3 August 2006 was that they had previously, on 8 June 2006, obtained the court’s permission to instruct an independent social worker, Mr. Nigel Sharratt, to conduct an assessment of their capacity to parent M. Unfortunately, although Mr. Sharratt had been ordered to file his report by 24 July 2006, he had not done so, apparently because the papers had gone astray. It appears that it was both the delay in filing Mr. Sharratt’s report, and concern about the grandparents’ commitment to the assessment which, quite properly, had triggered the guardian’s application for directions.

Counsel for the grandparents was, however, able to inform the judge on 3 August 2006 that Mr. Sharratt’s report was imminently expected, and that it would support the grandparents’ case. The grandparents, he argued, were indeed committed to caring for M. He stated that they intended to apply for a special guardianship order under section 14A to C of the 1989 Act, although he accepted, as was self-evidently the case, that they both required and did not have the leave of the court to apply for such an order.

The judge’s order, accordingly, is prefaced by the following recitals;

Upon hearing counsel for the (local authority) and the (grandparents) and solicitors for (M and her parents);

AND UPON the undertaking by counsel on behalf of (the grandparents) to file and serve an application for a special guardianship order within 7 days (sic), subject to being granted public funding to make such an application;

AND UPON solicitors for (the grandparents) urgently referring the matter to a circuit judge in the event of failure to lodge any application for a special guardianship order within 7 days;

AND UPON the local authority indicating that it may dispute the nature and extent of any report and assessment and its obligations under section 14 A of the (1989 Act) (as amended by the (2002 Act)) the matter is listed in accordance with paragraph 5 of the order set out below.

Items (2) and (3) of the recital should, of course, have read “an application for permission to apply for a special guardianship order”. This, for reasons which will become apparent is, in our judgment, a significant error.

Paragraphs 1 and 3 of the order deal with various extensions of time. Paragraph 2 requires the grandparents to file and serve an interim report from Mr. Sharratt by 4.00pm on 4 August 2006. Paragraphs 4 and 5 of the order provided as follows: -

There are further ancillary orders relating to the hearing on 15 September, and the grandparents were ordered to file and serve a statement setting out in detail why they had had failed to attend any contact sessions with M since 1 June 2006. The judge refused permission to the local authority to appeal against the terms of paragraph 4 of the order.

The local authority’s appellant’s notice was filed in time on 16 August 2006, and contained grounds settled by Mr. Harrison, who had not appeared before the judge. Mr. Harrison’s skeleton argument in support of the local authority’s application for permission to appeal followed, and is dated 15 September 2006.

Due to the intervention of the long vacation, the local authority’s renewed paper application for permission to appeal was not placed before the single Lord Justice, Wall LJ, until 10 October 2006. On the material presented to him, it appeared that the local authority had an arguable case for asserting that the judge should not have ordered it to prepare an assessment of the grandparents for special guardianship purposes when the grandparents did not have leave to make an application for a special guardianship order, and when, on the available material, the prospects of such an order being made were, at best, speculative. He accordingly granted the local authority permission to appeal, and ordered the case into the list for 23 November 2006, when the same constitution was also due to consider another case under the special guardianship provisions of the 1989 Act, albeit one which also raised a different and unconnected point.

On 10 October 2006, Wall LJ was not told, and was thus unaware, not only that the local authority had not exercised the option given to it by the judge on 3 August to vacate the hearing fixed for 15 September 2006, but that on 15 September 2006 the judge had conducted a hearing and given the grandparents leave to make an application for a special guardianship order. Furthermore, the judge on 15 September 2006 had given detailed directions designed to ensure that all outstanding issues between the parties were to be heard over a five day fixture listed before himself and due to commence on 18 December 2006. The judge had given a judgment on the grandparents’ application, and had refused the local authority permission to appeal against his grant of leave. However, the local authority had taken no steps to obtain the permission of this court to appeal against it. By 10 October 2006 the local authority was, in any event, out of time to do so.

It was thus not until counsel for the grandparents and the guardian filed their skeleton arguments in answer to the appeal that the court became aware of the order made by the judge on 15 September 2006. We feel bound to say that had the single Lord Justice known on 10 October 2006 that the judge had made the orders on 15 September 2006 to which we have referred in paragraph 19 of this judgment, it is highly unlikely that the local authority would have been given permission to appeal against paragraph 4 of the order made on 3 August 2006. Whilst the points raised by the local authority would have been regarded as both interesting and important, they had, on the facts of the case, been addressed and overtaken both by the grant to the grandparents of leave to apply for an order section 14A(1) of the 1989 Act, and by the judge’s direction that the care proceedings, including all questions of how and where M should be placed, were to be heard at the fixture for 18 December. The local authority’s appeal was thus academic.

Mr Harrison had the grace to apologise for the local authority’s failure to alert this court timeously to the existence of the order made on 15 September. He assured the court that the local authority was raising the matter as one of principle, and one which was likely to arise in many cases under the special guardianship provisions of the 1989 Act. He also made it clear that, notwithstanding the local authority’s view that the judge had been wrong, as a matter of law, to require the local authority under section 14A(9) to undertake an investigation and produce a report on the grandparents’ application for special guardianship on 3 August 2006 prior to the grant of permission to apply for the order, it had nonetheless complied with the order and had undertaken the work. It had done so in order to ensure that there was no delay in the resolution of the proceedings.

Mr. Harrison explained that the appeal was being brought by the local authority as a ‘test case’ to obtain clear guidance urgently needed from this court concerning the interpretation of statutory provisions relating to the special guardianship procedures. The Appellant was a major local authority with a substantial case load of litigated child care cases. It had a legitimate interest in bringing proceedings to obtain clarification of provisions and procedures affecting an increasing number of cases.

Mr. Harrison submitted, accordingly, that a point of principle was involved and that what Judge Cardinal had done on 3 August was, unless corrected by this court, likely to be replicated in other cases up and down the country. The obligation to investigate and prepare reports on special guardianship applications constituted, he argued, a substantial burden on local authorities, and it was of importance that they knew clearly when and in what circumstances such reports could properly be ordered, and generally how they stood in relation to any individual who expressed an interest in applying for special guardianship. Due to the importance of the points which arose, therefore, Mr. Harrison invited us to rule on them.

Having heard further argument and considered the matter, we came to the conclusion that we would hear the appeal. We did so because we accepted that the points raised in this appeal are important and would be likely to arise again in any event. In practical terms, counsel on all sides had come to court prepared to argue the appeal. We accept, furthermore, that the local authority was taking a principled stance by implementing paragraph 4 of the judge’s order whilst, at the same time, seeking permission to appeal against it. Having heard full argument, we reserved judgment.

As this is the first appeal in this court relating to the recently enacted and implemented special guardianship provisions of the 1989 Act and the regulations, we propose to set out the three relevant sections (14A, B and C of the 1989 Act) in full: -

Section 14B is headed Special guardianship orders: effect and reads as follows:

Section 14C is headed: Special Guardianship orders: effect and reads as follows: -

Section 14D (variation and discharge of special guardianship orders) and section 14F (special guardianship support services) are not relevant to this appeal. Section 14E (special guardianship orders: supplementary) is of tangential relevance as it mirrors section 11 of the 1989 Act and requires the court, in proceedings in which any question of making, varying or discharging a special guardianship order arises, to draw up a time-table with a view to determining the question without delay and to give directions designed to ensure that the time-table is adhered to.

Mr Harrison provided an analysis of the special guardianship provisions, and their inter-relationship with section 10 of the 1989 Act (persons entitled to apply for section 8 orders) in the form of two tables, which we found extremely helpful, and which we reproduce as appendices to this judgment.

Mr. Harrison relied on the regulations principally to demonstrate what he submitted was the heavy burden of inquiry imposed on local authorities under them. In particular he referred us to regulation 21 and to the Schedule to the regulations which set out the matters to be dealt with in any report to the court pursuant to section 14A(8)(b) of the 1989 Act. The schedule is extensive, and we do not propose to set it out. We accept Mr. Harrison’s submission that, whilst some of the information required for the report will be within the knowledge of the local authority in any event, much will not be. Furthermore, we agree with him that full and detailed inquiries are required if a person is to be given the status of a special guardian, a status which, as section 14C makes clear, confers on its recipient in broad terms parental responsibility “to the exclusion of any other person with parental responsibility for the child”.

The grounds of appeal settled by Mr Harrison are admirably clear and concise. We recite them in full: -

The learned judge ordered the Appellant local authority to investigate and prepare a report for the court as required under sub-section 14A(8) on a basis that was plainly wrong.

The discretion to request an investigation and report under sub-section 14A(9) is to be exercised only when it appears to the court, having regard to evidential material before it, that there is at least a real possibility that the court will make the special guardianship order under sub-section 14A(6)(b) in the proceedings.

The learned judge acknowledged that he did not know “the reality of the prospects of this application [for a special guardianship order] succeeding”. He acted simply upon intimation from counsel for the grandparents that there would be an expert’s report recommending that a special guardianship order be sought. He declined to consider material indicating that a special guardianship order for either or both of the grandparents would not be realistic.

Further, the learned judge exercised his discretion upon a mistaken belief that by not implementing sub-section 14A(9) he would merely be delaying a statutory obligation that would fall upon the local authority in any event by the imminent written notice of the grandparents under sub-section 14A(7). It was conceded that the grandparents were not “entitled to apply for a special guardianship order” within section 14A(5) of (the 1989 Act) and that they required the leave of the court to apply under section 14A(3)(b). It was not open to the grandparents to give a written notice of intention to make application for a special guardianship order as provided for by section 14A(7) before obtaining leave under section 14A(3)(b).

We have a full transcript of the hearing before the judge on 3 August. Counsel for the grandparents told him that Mr Sharratt had started an assessment of the grandparents. No report was available, although Mr. Sharratt’s preliminary view could, it was said, be made available very quickly, and was said to be supportive of M’s placement with her grandparents under a special guardianship order. Counsel recognised, however, that he needed leave to make an application for such an order. He submitted either (1) that the giving of notice by the grandparents under section 14A(7) triggered the three month period in which the local authority had to report pursuant to section 14A(8); alternatively (b) the court could make a direction of its own motion that the local authority undertake the assessment. He expressed the grandparents’ intention to give notice to the local authority under section 14A(7) within the next twenty four hours. Counsel did not, however, know if his clients were covered by their public funding certificate to make the application for permission, but argued that if the notice had been given, the local authority would have to do the work in any event, and to refuse to order them to start now would simply build delay into the process.

As we have already indicated, counsel for the local authority was plainly taken by surprise at an application being made for the court to ask the local authority to investigate and report under section 14A(9). He pointed out that previous assessments of the grandparents by the local authority had been unfavourable, and that they had recently failed to attend for contact with the child. This prompted the judge to make some comments upon which Mr. Harrison relies. On page 27 of the transcript, the judge says: -

Slightly later the judge says: -

The judge was also firmly of the view that there was no difference in the nature of the obligation imposed on a local authority between, on the one hand, a report triggered by notice given by an individual of an intention to apply for a special guardianship order under section 14A(7) and, on the other an investigation and report requested by the judge under section 14(A) (9). On page 30 of the transcript, the following exchange occurs between the judge and junior counsel for the local authority: -

As this is the first case to reach this court under section 14A of the 1989 Act, we propose to set out the arguments addressed to us in full.

For the local authority, Mr. Harrison developed his submissions in oral argument in the following way. He acknowledged that earlier, independent and unfavourable assessments of the grandparents undertaken by or at the behest of the local authority should not be regarded as conclusive. However, the judge’s response on 3 August to the possibility that a special guardianship order might be appropriate was to the effect that: (1) the grandparents were going apply for a special guardianship order; (2) that the notice of their intention to apply for the order would, of itself, compel the local authority to investigate and report; and (3) therefore by exercising the court’s own power to order investigation and report, the judge would be doing no more than accelerating an inevitable process.

That analysis, Mr. Harrison submitted, was plainly wrong in law, as was the judge’s view that it was sufficient for the purposes of section 14A(8) and (9) that counsel for the grandparents undertook to make application for permission to apply for a special guardianship order, and that Mr Sharratt was going to say there should be such an application.

The judge had been made aware both that independent social worker reports in the current and previous proceedings had not recommended the grandparents as carers, and that the grandparents had missed recent contact appointments with the child. He had acknowledged that he did not know what the prospects of the application succeeding were, but reiterated his view that the local authority would be required by law to start work on its report upon the grandparents lodging an application, and that, accordingly, all he would be doing by not ordering a report himself would be delaying a statutory obligation that would fall on the local authority on the filing of the application.

Mr. Harrison submitted that the judge’s reasoning involved the following interpretations of s.14A, each of which the local authority submitted was wrong. Firstly, the judge had been wrong to hold that an individual who needed the leave of the court before making an application for a special guardianship order could properly, before obtaining leave, give notice of his intention to make an application under s.14A(7), with the effect that the local authority must act in accordance with the mandatory provisions of s.14A(8). Mr. Harrison submitted that this cannot have been what parliament intended. The true construction of s.14A(7) was that no individual who required leave to make an application under subsections (3) or (6)(a) could give notice of his intention to do so without first obtaining the required leave. The reason for this was that the mandatory obligations upon a local authority under subsection (8) were considerable, and on the judge’s construction would be triggered by any applicant not statutorily entitled to apply for an order regardless of the prospective merits or prejudice to the welfare of the child such an application might involve.

Secondly, section 14A(12) provides that s.10(9) of the 1989 Act applied to applications for leave to apply for a special guardianship order, thereby imposing obligations upon the court to have regard to the specific matters contained in section 10(9) of the 1989 Act when exercising a discretion to give leave. Mr. Harrison reminded us that the material parts of section 10(9) read as follows: -

Mr. Harrison submitted that it was important to distinguish the position of an individual statutorily entitled to apply for an order. It was common ground that the grandparents were not statutorily entitled to apply, and M was in the care of the local authority under interim care orders. Applying s.10(c)(ii), if the grandparents had the consent of the local authority to apply, they would become individuals statutorily entitled to do so. The judge’s interpretation of the provisions put persons who were not entitled to require the local authority to investigate and report under subsection (8) in the same position as those who are so entitled. That, however, was not the case if the true construction of the Act of 1989 is that notice of application could not be given before leave was obtained.

Mr. Harrison further submitted that where care proceedings were already in progress, it cannot have been the intention of parliament to give an unfettered right to any non-entitled person to trigger the requirements of subsection (8) at any stage in the proceedings. The judge had thus been wrong to hold that the power under s.14A(9) to “ask” a local authority to investigate and report may be exercised without considering whether an application for a special guardianship order has realistic prospects of success. Mr. Harrison pointed out that although the statute used the word “ask”, the term plainly meant “order”. The local authority has no discretion to decline the “invitation”: it “must” investigate and report in the terms required by subsection (8).

Mr. Harrison submitted that the exercise of this power would usually arise where no investigation and report had been triggered by a proper notice under s.14A(7), so that the court was contemplating exercising its powers under s.14(6)(b) – to make a special guardianship order even though no application has been made. The court should not exercise its discretion to make such an order – and should not order a report under section 14A(9) - unless there was at least a real possibility that the court will make such an order.

Mr. Harrison submitted that his construction fitted appropriately with the terms of the Act of 1989. This was for the following reasons: -

a special guardianship application should not become an automatic addition to any application to care for a child by fostering or under a residence order, especially in view of the support services required to be provided under the regulations.

Finally, Mr. Harrison argued that the judge had been wrong to hold that it was possible for the court to define (and thereby limit) the requirements of a local authority to investigate and report under subsection 14A(8) where the court acts under subsection 14A(9). Whilst the local authority would welcome this construction of the provisions, the terms of the statute and the matters prescribed by regulations referred to in s.14A(8)(b) suggested otherwise. The reasons for this were;

Mr. Harrison also referred to the financial and other support provisions. He pointed out that the local authority had legitimate concern about the indiscriminate use of special guardianship applications. These arose in relation to the Special Guardianship Support Services required to be provided under Part 2 of the regulations. He pointed out that for these purposes, under paragraph 2 of the regulations, a person becomes a “prospective special guardian” and a child became a “relevant child” when notice of intention to apply was given under s.14A(7), or the court makes a request under s.14A(9). The implications of the Part 2 regulations were, he submitted, considerable.

M’s father, who is publicly funded in the care proceedings did not appear and was not represented before us. Perfectly sensibly, his solicitors took the view that he was not in a position to play any active role in the appeal. We had, however, skeleton arguments from both the grandparents and the guardian.

For the grandparents, Mr. Jeremy Weston submitted that the drafting of the Act did not provide for leave being granted prior to notice of an intention to apply for a Special Guardianship Order being given. It followed that if that had been the intention of parliament then the Act would have been drafted in those terms.

Mr. Weston did not accept that the obligations imposed on the local authority by reason of section 14A(8) could be properly described as considerable. In any event, he argued that balanced against such obligations was the fact that the local authority in the circumstances of this case was seeking significantly to interfere in the private and family life of the child and family by pursuing a care plan based on adoption.

Mr. Weston did accept that in the event that the court is required to consider the grant of leave to apply for a special guardianship order, section 14A(12) provides that the court must have regard to the matters set out in section 10(9). He further accepted that the maternal grandparents required leave to apply for a special guardianship order (such leave, of course, having been granted subsequently by HHJ Cardinal on 15 September 2006).

Mr. Weston argued that the judge was, in effect, exercising a proper case management power, and had well in mind the need for what the local authority had itself described as “the orderly management and disposal of care cases” when he considered the present case on 3 August 2006. It was plain that he had in mind the need for delay to be minimised in the case and that the final hearing should not be put in jeopardy. He was, accordingly entitled to make the order he had made.

As to the exercise of the judicial discretion to make an order under section 14A(9), Mr. Weston submitted that before making such an order a judge will inevitably have concluded that it is necessary for the court to consider making a special guardianship order at a final hearing and, accordingly, that a report is required to be prepared by the local authority. The Act did not specify that, before making such an order, a judge had to be satisfied that the application for a special guardianship order had realistic prospects of success. To impose such a requirement / threshold would, he argued, be premature given that the contents of the report ordered would be of assistance to the court in considering that very issue.

If, however, contrary to his primary submission, this court came to the view that a judge when exercising his power under section 14A(9) did need to consider the prospects of success, then Mr. Weston submitted that the Judge ought only to conduct a “broad assessment of the merits” as opposed to applying any “reasonable prospects of success” criterion. In this context, Mr. Weston relied on a statement by Wall LJ at paragraph 46 in Re R (Adoption: Contact) [2006] 1 FLR 373 at 385, in which he had said (in the context of an application for permission to apply for contact in adoption proceedings) that neither section 10(9) of the 1989 Act nor the decisions of this court in Re J (Leave to issue application for residence order) [2002] EWCA Civ 1364 (Re J). [2003] 1 FLR 114 and Re H [2003] EWCA Civ 369 prevented such a broad assessment. However, what they prohibited was “the determination of the application on the “no reasonable prospects of success” criterion.

Mr. Weston accepted that the local authority was relying on previous assessments of the maternal grandparents that were not supportive of M being placed in their care. However, he argued that the following matters were relevant:

a circuit judge on 8 June 2006 had clearly taken the view that there was merit in further assessment of the maternal grandparents and had given permission for there to be an independent social work assessment by Mr Sharratt;

the report heavily relied upon by the local authority was subsequently the subject of significant criticism by Mr Sharratt. It was accepted that the contents of the latter’s report were not available to HHJ Cardinal on 3^rd August but the fact that Mr Sharratt supported placement with the maternal grandparents under a special guardianship order was known;

the judge was plainly entitled on the facts of this case to exercise his discretion under Section 14A(9) in the manner he chose.

Mr. Weston also submitted that the order made by the judge had not repeated any of the previous assessments of the maternal grandparents and in any event was made against a backdrop of previously flawed assessments. Further, the assessment and report ordered by the judge had specifically been addressed to the question of special guardianship and designed to inform the decision at final hearing.

Mr. Weston submitted that consideration of special guardianship orders could not be rightly described (as the local authority had described them) as an “automatic addition to any application to care for a child” but instead represented a proper regard to the necessary consideration of all the menu of orders available to the court at the conclusion of the proceedings. In particular, Mr. Weston relied on the proposition that when the court is considering whether to make a special guardianship order or a care order, the court and local authority must have regard to the “welfare checklist” in Section 1(3) of the 1989 Act, including subsection (g): “the range of powers available to the Court under this Act in the proceedings in question.” Furthermore, pursuant to section 31A(2) of the 1989 Act (inserted by section 121(2) of the 2002 Act), a local authority conducting care proceedings was obliged, while the proceedings were pending, to keep any care plan prepared by it under review and, if it was of the opinion some change was required, to revise the plan, or make a new plan, accordingly.

Furthermore, given that the local authority’s care plan was for adoption outside the family, Mr. Weston relied on section 1(6) of the 2002 Act which provided that the court must always consider the whole range of powers available to it in the child’s case (whether under the 2002 Act or the 1989 Act). The “whole range of powers” clearly includes consideration of placement under a residence order, a residence order with a section 91(14) restriction, fostering, special guardianship orders and adoption.

Mr. Weston also placed reliance on ECHR Article 8. The local authority in seeking a care order and placement order was interfering in the exercise of the right to respect for private and family life enjoyed by the child, parents and grandparents. Adoption was the most significant interference in family life. In order for the court to be satisfied that the interference was in pursuit of a legitimate aim under Article 8(2) of the European Convention, was necessary in a democratic society and was proportionate to the aim pursued, the local authority was required to consider the full range of orders available to the court.

As to the court’s power to define the extent of the investigations and report by the Local Authority under section 14A(8) when acting under Section 14A(9), Mr. Weston accepted that neither the 1989 Act nor the regulations expressly provided any power for the court and/or the Local Authority to restrict or otherwise define the areas on which there is to be investigation and report. He acknowledged that pursuant to section 14A(8)(a) and (c) the report must deal with the suitability of the applicant to be a special guardian and any other matter which the local authority consider to be relevant. He also accepted that, in addition, section 14A(8)(b) provided that the report must deal with any matters as may be prescribed by the Secretary of State, and that regulation 21 provided for the matters that are to be dealt with in the report to be prepared for the court and set out in large detail the matters that are prescribed for the purposes of section 14A(8)(b).

Mr. Weston submitted, however, that the Act nonetheless allowed local authorities a substantial degree of latitude under section 14(A)(8). It was, for example, a matter for the local authority which individual (whether independent social worker or otherwise) they identify to undertake such an assessment. Mr. Weston further argued that whilst it was not possible or permissible for the local authority simply to adopt the findings of a previous assessment nonetheless much of the detail that would inform the assessment ought to be readily available to any local authority which had previous assessments available and had properly considered all available kinship (or other) placements for a child. Mr Harrison, accordingly, protested too much.

Mr. Weston argued finally that in suitable cases, where, for example, there had been a lack of engagement in the assessment process, and/or a significant change in circumstances, it was open to the local authority to an application to the court to discharge the order made under section 14A(9) thereby avoiding unnecessary cost and potential prejudicial delay.

For the guardian, Mr. Peter Anthony spoke to a skeleton argument prepared by Miss Lorna Meyer QC. He made it clear that the guardian had supported the judge directing a special guardianship report at first instance and sought to uphold the approach of the judge in this court. He submitted that the judge’s approach was consistent with all the relevant statutory provisions regarding special guardianship reports.

Since the guardian supported the grandparents’ submissions, we will attempt only to refer to that part of the argument advanced on his behalf which added to the points made by Mr. Weston. Furthermore, much of Miss Meyer’s skeleton related to the arguments which had been advanced to the judge on 3 August, whereas Mr. Harrison had, of course, both refined and distilled them into the three propositions of law arising set out in paragraph 2 of this judgment.

Mr Anthony, however, agreed with Mr. Harrison that, unlike the provisions of regulation 27 of the Fostering Services Regulations 2002, there was no discretion allowed to the local authority in the regulations as to the content of the report prepared pursuant to section 14A(8)(b). The statute and regulations made it quite clear what information was required although the local authority could include additional information if it considered it to be relevant. There was, however, no statutory provision which enabled the local authority to curtail the information. In particular, there was no difference in the responsibilities imposed on a local authority in investigating and preparing its report, dependent upon whether the route was by notice (section 14A(8)) or court order (section 14A(9)). The purpose of the report was to enable the court to determine whether (bearing in mind the welfare checklist pursuant to section 1 of the Act) the court should make a special guardianship order or some alternative order for the child. That question remained the same whether the route is by notice and application or by the court’s own motion. There was no justification for the report to embrace different standards or detail of information depending on the route followed. Unlike the situation where local authorities were considering whether to approve a person as a foster parent, it was the court and not the local authority which took the final decision whether to make a special guardianship order.

As to the argument that leave must be granted before notice under the Act can be given, Mr Anthony pointed out that this point was not raised before the judge below, and argued that the local authority’s construction could not be implied from the wording of the statutory provisions or the regulations. Counsel agreed with Mr. Weston that such an intention could have been easily reflected in the provisions had parliament so intended.

Mr. Anthony added that if a non-entitled person is able to trigger the preparation of a special guardianship report, such a person would be in a better position to establish whether it was appropriate to issue any application for leave to apply for special guardianship. The court proceedings could then continue in a timely and well ordered fashion. Should such a person require leave first before being allowed to give valid notice, additional delay was being built in both to the court proceedings and the assessment process. This could not be in the interest of the child - see section 1(2) of the 1989 Act. A leave application would need to be issued, listed and determined: then an inevitable three month delay would ensue unless in each occasion the court used its power to direct a report (and to direct the time by which it should be filed).

Mr. Anthony further submitted that in the instant case, even if the grandparents were granted leave to make their application for special guardianship, they would be prohibited from making the application for special guardianship itself unless before the beginning of the period of three months ending with the date of the application they had given notice to the local authority looking after M. Leave did not equate with notice. Thus if they had not already been parties to ongoing proceedings, this would mean that upon issuing the application, further directions with reference to the filing of evidence and the listing of a hearing of appropriate length would be needed. Potentially therefore two additional stages of delay were thereby encountered.

Mr. Anthony further submitted that the judge’s reliance in this case on the fact that an undertaking would be given immediately for issuing an application (which, Mr. Anthony accepted would, in the first instance, need to be for leave to make the application) might be a little misleading. It was clear that no written notice had yet been given to the Local Authority and so if the route of making a formal application alone was to be pursued there would be a statutory delay of three months.

As to the argument that the court should only order a special guardianship report where it considered that there were reasonable prospects of success, the guardian agreed with the grandparents that the section and regulations did not require any such ‘filter’. The power of the court to order a report was not, statute, limited in any way, either by the need for the court to have granted leave nor by it being in a position to assess the likelihood of success. The judge in the instant case heard the points raised on behalf of the local authority which may have indicated that the applicants were potentially unsuitable. He also heard the views of an independent expert. He placed reliance on that information as well as upon his concern that there should be no unnecessary delay when concluding to order the report. He had been entitled to do so.

Mr. Anthony further submitted that a court may require information from the special guardianship report itself in order properly to determine the prospects of success, particularly in private law applications, where the Local Authority was not already involved in the proceedings.

Counsel also referred us to the case of Re J as being relevant to a consideration of whether it appropriate for the court to assess the prospects of success before making a direction, and only to do so when there were realistic prospects of success. Counsel pointed out that the court could not make a special guardianship order without a report. There was, accordingly a real risk in importing such a test at the stage of ordering a report. Counsel argued that the grandparents’ Article 6 rights would be infringed if the court not only dismissed their application without a full enquiry being held, but also prevented information which might have informed the court as to the merits of their application being placed before the court for consideration.

In the instant case, it was accepted that the court on 3 August could not yet have reached the point as envisaged by section 14A(6)(b), although the judge may reasonably have considered that a special guardianship order might be made at the final hearing having heard the evidence of the authors of the opposing assessment reports and the views of the guardian. It certainly appeared that the judge had reached the stage envisaged by the definitions under the regulations, namely that he was in the process of considering whether a special guardianship order should be made and needed the report (and indeed the information in the special guardianship report) before he could properly conclude that process.

Even on 3 August, the judge had been aware that Mr Sharrat, an experienced assessor, was making a recommendation for special guardianship and that it would be necessary to consider the strengths and weaknesses of the conflicting assessments at final hearing.

Mr. Harrison replied to the points made by the grandparents and the guardian, but for the purposes of our decision, we do not think it necessary to rehearse his arguments. By way of preliminary observation, we should say that we take the view that whilst ECHR Articles 6 and 8 are engaged in these proceedings (as they are in every public law family case) neither article, in our judgment, adds anything to the argument.

We start with the third of the points identified in paragraph 2 of this judgment which, for ease of reference, we repeat:

In this regard, we accept the virtually unanimous submissions of all three counsel that the answer to this question must be “no”. We need not, we think, repeat the arguments already rehearsed from in particular the guardian on this point. We agree that there is no provision either in the statute or the regulations for any restriction, reduction or alteration in the information which the local authority is required to cover.

We do, however, think it important to pause to reflect why this is so. In our judgment it is because special guardianship is an issue of very great importance to everyone concerned with it, not least, of course, the child who is its subject. It is plainly not something to be embarked upon lightly or capriciously, not least because the status it gives the special guardian effectively prevents the exercise of parental responsibility on the part of the child’s natural parents, and terminates the parental authority given to a local authority under a care order (whether interim or final). In this respect, it is substantially different from a residence order which, whilst it also brings a previously subsisting care order in relation to the same child to an end, does not confer on any person who holds the order the exclusivity in the exercise of parental responsibility which accompanies a special guardianship order.

The importance of the concept of special guardianship informs our view both of the statutory provisions and the arguments advanced to us so skilfully on all sides. Although the issues raised by this case do not require us to examine the circumstances in which a special guardianship order (as opposed to any other order in relation to a child) would be made on its merits, it does require us, we think, to examine the circumstances in which such an order falls to be considered.

Although firmly embedded in Part II of the 1989 Act, and thus part of its private law, as opposed to public law, provisions, it is nonetheless self-evident that special guardianship will frequently fall to be considered as one of the options for a child in care proceedings, once – as here - the threshold criteria under section 31 of the 1989 Act have been established, and the court has to consider, on a welfare basis, what (if any) order is in the best interests of the child or children concerned.

The instant case provides a good example. The natural parents of the child concerned are ruled out as carers. The choice, accordingly, is, in real terms, between adoption outside the family, or placement with family members – in this case, the child’s grandparents. In circumstances such as these, it seems to us that the first question which arises will not be the nature of the order under which the child is to live with her grandparents, but the more fundamental question: is it in M’s best interests to be adopted, or is it in her best interests to live with her grandparents? If the answer to the first part of that question is that it is in M’s best interests to be adopted outside the family, then its second limb does not arise. It is only if the court decides that it is in the child’s interests not to be adopted outside the family, but to live with her grandparents that the question arises as to the order by which that result is to be achieved.

In these circumstances, there are, in real terms, four options. Making no order is, in our judgment, not an option. It would leave parental responsibility with M’s parents who, by common consent, are not in a position to exercise it. The prospect that they may do so by placing M voluntarily with her grandparents leaves M wholly unprotected and vulnerable to parental whim. An order of some sort is plainly required.

The first option is that M could live with her grandparents under a care order. That, however, requires the agreement of the local authority, since, under a care order it has the right to determine the extent to which the child’s parents exercise parental responsibility (see section 33(3) of the 1989 Act) and the court has no power to impose on a care order any conditions that the child who is the subject of the order shall live with a particular person: - see the decision of this court in Re T (a minor) (care order: conditions) [1994] 2 FLR 423. Thus if the court were to wish to place M with her grandparents under a care order, that wish would be incapable of implementation if the local authority declined to change its care plan to accommodate placement with the grandparents. So much is elementary.

Equally elementary is the proposition that if the court were to decline to make a care order, its options are: - (1) a residence order in favour of the grandparents simpliciter; (2) a residence order in favour of the grandparents combined with a supervision order in favour of the local authority; or (3) a special guardianship order. All three would bring to an end the interim care order under which M is currently living. All three would terminate the local authority’s parental responsibility for M, and whilst (unlike an adoption order) neither a residence nor a special guardianship order in the grandparents’ favour would terminate the parents’ parental responsibility, the latter would not simply vest parental responsibility in the grandparents, but would entitle them to exercise it to the exclusion of the parents, save in certain defined respects which we do not think material to the present argument.

In our judgment, therefore, the question of a special guardianship order being made at the conclusion of care proceedings is likely, in the majority of cases, to be subservient to the more general (and more fundamental) question as to where the child should live, and with whom. Special guardianship only arises if those who apply for it are able to overcome the previous hurdle of the court being satisfied that it is in the interests of the child concerned to make her home with them.

In this context, we are less impressed with the arguments advanced on the guardian’s behalf in relation to delay than we would be in other situations. That, of course, is not to say that, wherever possible, the court should not, at the conclusion of care proceedings, make a final order determining the child’s future for the remainder of his or her majority. That thought was plainly – and properly – in the mind of the judge in the instant case, and the time-table which he set on 15 September (combined with the grant of permission to the grandparents to make their application for special guardianship) clearly gives him jurisdiction to make a special guardianship order – if warranted on the merits – at the conclusion of the care proceedings fixed for a five day hearing on 18 December 2006: - see section 14A(6) and (7) of the 1989 Act.

In our judgment, therefore, in care proceedings where the applicant for special guardianship does not require leave to make an application for special guardianship; or where he or she does require leave and it has been granted; or even where special guardianship is a real possibility but no application for it has been made, it may well be appropriate for the court to attempt to ensure that everything is in place to enable a special guardianship order to be made if that is the order which, at the conclusion of the care proceedings, the court determines is in the best interests of the child. Nothing we say in this judgment is designed to prevent that occurring.

In our judgment, however, the question of who may apply for a special guardianship order, and what must occur when such an application is made must be seen in the context that special guardianship is a matter of fundamental importance for the child and the special guardians. This, accordingly, directly raises the question, common in care proceedings, where relatives of the child, who need the court’s leave to apply for a special guardianship order, put themselves forward as potential carers. How do such applications fall to be treated?

The decision whether or not to make a special guardianship order is, of course, for the court. In the instant case, we are not concerned with the court making an order of its own motion under section 14A(6)(b). In the instant case, the court could only make such a special guardianship order in favour of the grandparents once they had obtained the leave of the court to make an application for special guardianship (section 14A(3)b)). Furthermore, as the guardian points out, notice has to be given to the local authority three months before the date of the application.

On 3 August the grandparents had not obtained leave. They plainly could not, therefore, at that point make an application for a special guardianship order. All they could do was to apply for permission to make an application for an order. The court order is plainly in error in recording their undertaking to make an application for a special guardianship order within 7 days.

The second pre-condition for the making of the order is notice. The grandparents are required by section 14A(7) to give notice to the local authority of their intention to make the application for a special guardianship order three months before the application itself is made. Receipt of the notice triggers the local authority’s report.

In our judgment, it simply was not open to the grandparents on 3 August to give notice of their intention to make an application for a special guardianship order. The reason for this is simple: they did not have the capacity on that date to make such an application. In order to give the notice required by section 14A(7), it seems to us that they must first have obtained permission to make the application. Only once they had obtained permission to make the application, could they give the local authority notice of their intention to do so.

In our judgment the judge on 3 August confused two quite distinct concepts. The first is an actual application for a special guardianship order. The second is an application for permission to apply for such an order. Persons who have the right to make an application for special guardianship must give the local authority three months notice of their intention to make it. Persons who do not have the right to make an application for special guardianship, and who require the court’s permission to make the application cannot, for the reasons we have given and as we read the statute, give notice of their intention to apply for a special guardianship unless and until they have got permission.

It follows, in our judgment, that Mr. Harrison is entitled to succeed on the first of the points identified in paragraph 2 of this judgment. Neither an undertaking by the grandparents to apply for permission to make an application for special guardianship (mistakenly referred to in the order as the application itself) nor notice to the local authority of their intention to apply for permission to make an application for a special guardianship order was capable on 3 August 2006 of triggering section 14A(8).

We agree with Mr. Harrison’s submission that it cannot have been the intention of parliament that any announcement by anybody of an intention to apply for a special guardianship order should trigger section 14A(8). Such a conclusion would, in our judgment, be absurd. If the argument is correct, a relative who had not even met the child and who had had no connection with her or her parents since her birth could give notice of an intention to apply for a special guardianship order, and the local authority would be obliged to implement the procedure identified in section 14A(8) which, it is common ground, there is no discretion to vary. Section 14A(8) is, in our judgment, only triggered either when a person who is entitled to apply gives notice of an intention to do so, or when a person who needs the court’s permission to apply, obtains that permission and then gives notice.

This leaves section 14A(9). This section plainly gives the judge a discretion. It empowers him to ask the local authority to conduct the section 14A(8) investigation and to prepare a section 14A(8) report. But in what circumstances does that discretion properly fall to be exercised?

The discretion must plainly be exercised judicially. In our judgment, the discretion would plainly fall to be exercised if the judge was satisfied within section 14A(6)(b) that a special guardianship order should be made even though no application for such an order had in fact been made. In those circumstances, there would be no report, and since the judge cannot not make a special guardianship order without such a report – see section 14A(11) – he would need to bespeak one under section 14A(9).

However, it is plain to us that this was not the situation which appertained on 3 August, and in our judgment it was premature of the judge to make an order under section 14A(9) on that day. No application for a special guardianship order had been made, or was capable of being made by the grandparents. The prospects of such an order were wholly speculative, as the judge himself recognised in the passage from the hearing we have set out in paragraph 33 of this judgment. It follows, therefore, the judge acted prematurely and was wrong to make an order under section 14A(9) on 3 August.

By 15 September, of course, the situation had changed radically. The grandparents had obtained evidence from Mr. Sharratt providing powerful support for their application for permission to apply, and the judge duly granted it. No appeal against that order has been pursued. It is that order which permits the grandparents both to give notice to the local authority and to make the application for a special guardianship order.

In our judgment, therefore, the judge was wrong to make his order on 3 August 2006 on the basis that he was simply anticipating the inevitable. If the grandparents had applied but failed to obtain permission to make the application for a special guardianship order, the only possible trigger for the local authority’s investigation and report would have been section 14A(9) and it would seem to us to follow that if the court refuses permission to apply for a special guardianship order, it would be wholly inconsistent with that decision if the court nonetheless ordered the local authority to investigate and report under section 14A(9).

It follows that Mr. Harrison, in our judgment, is also entitled to succeed on the second of the three propositions identified in paragraph 2 of this judgment.

We have already dealt with the third proposition identified in paragraph 2 of this judgment. For the reasons we have already given, we are unable to construe the section in the manner in which Mr. Harrison would like us to be able to construe it. Mr Harrison can, however, we think take some comfort from the fact that, on our construction, section 14A(8) can only be triggered in defined circumstances, and in the circumstances in which it is likely to be triggered, the work will indeed be required for the court’s ultimate determination of the proceedings.

We rule, accordingly that –

We are conscious that we have not dealt with every point made on behalf of the grandparents and the guardian. In particular, we are aware of a potential ambiguity in the use of the phrase “make an application” in section 14A(7) of the 1989 Act. We are, however, satisfied on the facts of the instant case that it will be open to Judge Cardinal to determine the grandparents’ application for special guardianship on or after 18 December 2006. This is because whenever the application is deemed to be made (and assuming the grandparents gave notice to the local authority on or shortly after 15 September 2006 of their intention to apply for an order) the three month period in 14A(7) of the 1989 Act will clearly have elapsed, and the judge will have the local authority’s report. The judge will thus have all the relevant material to enable him to proceed. Alternatively, of course, by the conclusion of the care proceedings, if no application has been made, he will be able to exercise his powers under section 14A(6)(b).

It is self-evident, but we nonetheless make it clear, that nothing in this judgment is designed to address the merits of a special guardianship order in this case, or in any way to influence the outcome of the proceedings being heard by the judge on 18 December 2006.