S (A Child), Re No. 2

This is an addendum to the substantive judgment of the court in this appeal ([2007] EWCA Civ 54), which was handed down on 6 February 2007. It is also a judgment of the court, although, unlike the substantive judgment, it has not been discussed with the other members of the court involved in the two further decisions handed down at the same time, namely Re AJ [2007] EWCA Civ 55 and Re MJ [2007] EWCA Civ 56.

In paragraphs 126 to 128 of the substantive judgment, we made the point that although the judge had made her order under section 14A(6)(b) of the 1989 Act (set out at paragraph 15 of our main judgment), she had not directed a report from the local authority under section 14A(9). In these circumstances, since the court is prohibited by section 14A(11) from making a special guardianship order unless it has received a report dealing with the matters identified in section 14A(8), we queried whether the order made by the judge was one which she should not have made until such time as she had ordered and received such a report. We invited submissions in writing on the point, which we have now received. Since we had expressed our view at the conclusion of the argument that the appeal would be dismissed on its merits, we decided not to delay the handing down of the substantive judgment whilst this point was addressed.

The lead in the provision of written argument on the point was taken by Miss Catherine Shelley, counsel for the appellant, with whom the other parties in the case agreed. Miss Shelley began by pointing out that the issue of lack of jurisdiction to make a special guardianship order, for want of a suitability report, had not been relied on as a ground of appeal. She gave as the reason for this that it seemed to all parties in the case that the wording of the Act did not require a “special guardianship report” per se.

Miss Shelley acknowledged, however, that the wording of section s.14A(11) of the 1989 Act required a report She argued that the vast majority of the information required as to the appellant’s suitability to care for the child was already before the court in the reports filed in support of the adoption application, namely the Schedule II report, the Form F and minutes of the permanence panel decision. In addition, there was information before the court in evidence of the appellant’s views as to special guardianship and as to S’s wishes and feelings.

She further argued that on a review of Schedule I of the Special Guardianship Regulations (the Regulations) it appeared that the only data required that was not before the court comprised the following:

photographs of the child and her natural parents;

details of the neighbourhood in which the appellant and child live; and

details of the appellant’s income and expenditure and an assessment of her support needs under the Special Guardianship Support provisions.

It was therefore thought, she argued, that the court had sufficient information to make an order, save for the ordering of a report on the appellant’s financial position and support requirements. On this basis it was thought unnecessary and onerous to require a further report to be prepared by an over-stretched local authority.

Miss Shelley submitted that it would be of assistance to know this court’s views as to whether the local authority should now provide a completely new report or simply file a report with the missing information by way of an addendum to the reports already filed for the adoption application. She pointed out that had the adoption application been made under the 2002 Act, the reports in support of that adoption application would have contained the information required by the Regulations and more. Those documents should also contain their authors’ considered views as to a special guardianship order as an alternative to adoption.

Miss Shelley further submitted that it would be of assistance to have guidance for future cases, where the application for adoption is made under the 2002 Act, as to whether the information in the adoption or placement order reports could suffice as the reports required by s.14A(11) in circumstances where the court decides to make a special guardianship order without application, pursuant to s.14A(6)(b).

Miss Shelley argued that such a pragmatic approach – in the cases where a special guardianship order is made as an alternative to adoption - would be more practicable in terms of avoiding delay for the child and reducing the burden on local authorities of providing a report that would essentially be duplication of material already before the court. She accepted, however, that in those cases where the special guardianship order was being advanced as an alternative to an application for a residence order, a full, further assessment and report would be needed.

The wording of Miss Shelley’s submissions as recorded in paragraphs 3 and 4 above gives the impression that the point was considered by the parties. There is, however, nothing in the judge’s judgment to indicate that she had addressed her mind to the point, and whilst we have some sympathy with the thrust of Miss Shelley’s submissions, section 14A(11) is, in our judgment, unequivocal: “The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8)”.

It follows that the need for a report dealing with the matters identified in section 14A(8) as a pre-requisite for a special guardianship order being made is not limited to the receipt by the local authority of written notice under section 14A(7) by an individual who intends to make an application for such an order. It also plainly applies in relation to an order made under section 14A(6)(b) where the court (as in the instant case) considers that an order should be made, even though no application for such an order has in fact been made by any of the parties.

In practice, therefore, what in our judgment should happen in a case to which section 14A(6)(b) applies, and where there is no report under section 14A(8), is that the judge should exercise his or her powers under section 14A(9) and request the local authority to conduct the investigation and to produce a report dealing with the matters contained in section 14A(8)(a) to (c) of the 1989 Act. Until that report has been received by the judge, the court cannot make a special guardianship order.

It further follows, in our judgment, that in the instant case, the judge did not have the power to make a special guardianship order on 13 July 2006, and should not have done so.

That said, however, we agree with Miss Shelley that on the facts of this case, the court can properly adopt a pragmatic approach to the report. In paragraph 46 of its decision in Re R (a child) (special guardianship order) [2006] EWCA Civ 1748, [2007] 1 FCR 121 at 135 (Re R), this court accepted the submission made by the local authority in that case that it was not possible for the court to define (and thereby limit) the requirements of a local authority to investigate and report under section 14A(8) where the court acts under section 14A(9). We agree with that proposition. However, in a case to which section 14A(6)(b) applies, and in which the bulk of the information required for the report under section 14A(8) is already before the court in a different form, it would seem to us to be unduly burdensome for the local authority to be required, as it were, to start again from scratch, and produce a fresh report, much of which would simply reproduce and duplicate the information already before the court. Such an approach is not, we think, required by the Statute.

We therefore accept Miss Shelley’s submission that the local authority should not be required to complete an entirely new report. What we think should happen is that the local authority should be asked by the court to file a report, which will fulfil the terms of section 14A(8); (i) by providing the missing information; and (ii) by setting out the remaining information in the form of cross-references to the information already before the court in other reports.

None of this is in any way to diminish the importance of the report under section 14A(8) as explained in Re R. Furthermore, we are clearly of the view that in every case in which the court is minded to invoke section 14A(6)(b), the court should carefully consider the manner in which its powers under section 14A(9) will fall to be exercised. In some cases, the information required by the report will already be before it in a different form. In such cases (for example, applications under the 2002 Act) we agree with Miss Shelley that it would be unduly burdensome on a local authority to have to start again from scratch, and to produce an entirely fresh report, much of which would be duplication.

Miss Shelley also acknowledged, however, that in some cases, the information required by section 14A(8)(a)and (b) will simply not be before the court. In such cases, the local authority may well be required by the court to conduct a fresh investigation and prepare a fresh report. For example, in a private law case, the local authority may not be a party to the proceedings in which considerations involving section 14A(6)(b) arise. In such a case, the judge will undoubtedly need to request a full investigation and report under section 14A(9) before a special guardianship order can be made.

In our view, the court should adopt a common sense approach to these matters. If the material is already before the court, it can be cross-referenced, and need not be duplicated in a different format. Where, however, a fresh investigation and report is required, the local authority must undertake both without preconceptions.

In the instant case, it may well be that the local authority maintains its view that adoption is preferable to a special guardianship order. However, on a proper review of all the facts, the judge has disagreed, and this court has upheld her decision. In these circumstances, it seems to us that the need for the report under section 14A(8), whilst not a pure formality is, nonetheless, not a reason for allowing the appeal, and requiring the judge to revisit the merits of the case.

In these circumstances, and whilst it has to be acknowledged that the order made by the judge on 13 July 2006 was made in breach of section 14A(11) of the 1989 Act, that breach can be rectified by the request, which this court will make, that the local authority, having completed its investigation of the case, prepares a report under section 14A(8), that report (i) to provide the information required by the section and the Regulations not already before the court; and (ii) to provide the balance of the information required by the section by reference to those parts of the evidence already before the court in which that information is set out. Once that report has been received by the judge, there should be a further hearing before her in which the special guardianship order, and any other ancillary orders, can be made.

Against this background, we remain of the view that this appeal should be dismissed.