A Child (Discharge of SGO: local authority party status), Re

These proceedings concern one child, a girl aged 10. She lives with her grandparents under a special guardianship order made in 2018. Her mother (“M”) applies, with the leave of the court, to discharge the special guardianship order, and in the alternative for an increase in contact.

I am required to determine, at this early stage in the proceedings, which local authority (if any) should be a respondent to the application. I heard submissions on the point at a case management hearing last week and informed the parties that I would give my decision in writing.

The local authority which brought the care proceedings in which the special guardianship order was made was LB Redbridge. Its case is that it should not be a party to this application. None of the parties – the child, her mother or her special guardians – live in the Redbridge area any longer, and Redbridge has no up to date information about the family. Redbridge suggests that if it is necessary for a local authority to be a party to the proceedings that should be LB Newham, where the child and special guardians live, or alternatively the City of Westminster, where M lives. Newham have provided special guardianship support services to the family, and Westminster have had some recent involvement with M during the course of a successful application by M for a child arrangements order for her older child.

Newham and Westminster have had informal notice of this application. Newham attended a previous hearing and made clear its view that if a local authority is a party to these proceedings that local authority should be Redbridge. Westminster has not expressed a view.

The other parties to the proceedings are neutral on the issue, but anxious to avoid further delay.

None of the parties are aware of any authority directly relevant to this issue. The relevant statutory provisions are as follows.

FPR 2010, r.12.3 sets out who the parties to an application to discharge a special guardianship order are. They are:

R.12.3(3) provides:

The decision to join or remove a party is a case management decision which is subject to the overriding objective in FPR 2010, r.1(1) of enabling the court to deal with cases justly, having regard to any welfare issues involved. Dealing with a case justly includes, so far as is practicable –

Not directly applicable to this application, but relevant by analogy, CA 1989, s 31(8) provides for the designation of a local authority within care proceedings. The local authority which is designated in a care order (interim or final) is:

The higher courts have repeatedly made clear that arguments between local authorities about designation are a waste of valuable resources and should be avoided. When disputes do come to court, judges are encouraged to undertake a “rapid and not over-sophisticated review” of the evidence in order to determine the issue: Re B (A Child) [2020 EWCA Civ 1673.

CA 1989 s14F imposes a duty on each local authority to make provision for special guardianship support services, which are defined in the statute and in regulations. The Special Guardianship Regulations 2005, reg 5 reads:

On behalf of Redbridge Ms Taylor-Ezechie has filed a skeleton argument setting out the local authority’s position. Although not explicitly conceded in that document, Ms Taylor-Ezechie accepted during the course of oral submissions that the operation of r.12.3 means that the starting point is that Redbridge has automatic party status. She points out however that the court has power to discharge Redbridge as a party under r. 12.3(3), and argues that that power should be exercised in the circumstances of this case.

Ms Taylor-Ezechie relies on the fact that, as a result of the operation of SGR 2005, reg 5, it is now Newham and not Redbridge which has a duty to provide special guardianship support services to the child and special guardians. Redbridge has had no direct involvement (other than through the continuing payment of a special guardianship allowance) since 2021. It is Newham which has been supporting the family with issues including contact between M and the child. The key welfare information that is likely to be relevant to the issues before the court is all held by Newham. If Redbridge remains a party to the proceedings, in practical terms it will be necessary to liaise closely with Newham in respect of the provision of information for the proceedings, and to look to Newham to implement and support any decision made by the court.

Alternatively, Redbridge argues that Westminster, as the local authority which has recently prepared a s7 report dealing with M’s parenting capacity in the context of her application to resume the care of her older child, may be best placed to assist the court.

I accept that the court has power, by virtue of r. 12.3(3), to discharge Redbridge as a party to these proceedings, and to join a different local authority. However, in my judgement such power should be exercised conservatively.

Per r.12.3, where a parent seeks to discharge a special guardianship order made in care proceedings the parties to the application to discharge are the same as the parties in the original care proceedings, plus the special guardian(s). The local authority is a party, as is the child, represented through a children’s guardian.

The application to discharge, although a private law application, will therefore take on some of the complexion of public law proceedings. There are, in my judgement, good reasons for that. A special guardianship order made at the conclusion of care proceedings will often be made against a background of serious harm to the child. Its discharge in favour of the parent to whom the harm was attributed is likely to require careful consideration and professional input. For that reason, it seems to me that a decision to discharge the original local authority as a party to the proceedings, without substituting another local authority, will be relatively unusual.

As to whether another local authority should be substituted, the most obvious candidate in most cases will be the authority where the child and special guardian are living at the time of the application. Parliament could have provided for that local authority to be an automatic respondent on an application to discharge a special guardianship order. The decision not to do so, and instead to revive the role of the local authority which conducted the initial care proceedings, must be taken to be deliberate.

In an application by one local authority to designate another within care proceedings the court will adopt a straightforward mechanism in order to produce a determination as swiftly and efficiently as possible. In arguments over designation there are often welfare and convenience factors which point away from the outcome mandated by s31(8). Despite that, the authorities make it clear that the statute is to be applied robustly. Certainty of outcome is prioritised over a more flexible but less predictable discretionary approach.

There are, in my view, good reasons to take a similar approach to the current issue. Special guardianship orders are intended to provide a child with a permanent placement, and may remain in force for many years. It is therefore not unusual for a family to move from one local authority area to another during the currency of a special guardianship order. Opening the door to arguments based on the degree of involvement of any particular authority would risk increasing the length and cost of the litigation.

This case is likely to require a careful professional assessment of M’s parenting capacity and the extent to which the risks she previously posed have reduced, as well as an assessment of the child’s relationships with family members and her particular needs. I am satisfied that it is not a case where the court can proceed simply by directing a s7 welfare report. It will be necessary for a local authority to have full party status.

I accept that there may be some practical advantages to Newham taking on the role of the local authority in these proceedings. Certainly most of the relevant recent information about the family will be held by Newham. However the monitoring of a special guardianship order is not a particularly onerous task and I would not expect Newham’s social work records to be very voluminous. Local authorities, particularly in London, are used to sharing information as families move from one area to another, and have procedures in place for doing so.

Westminster prepared a s7 report within the proceedings relating to M’s older child and therefore that local authority has some relatively up to date information about M’s parenting capacity. However, having read that report, it is clear to me that the issues in those proceedings were very different, and that Westminster was not required to undertake the sort of in-depth assessment of M’s parenting capacity that is likely to be required in the present case. There are no real advantages in Westminster being joined as the local authority party within these proceedings.

There are therefore insufficient grounds for departing from the default position created by r.12.3. As the local authority which was a party to the original care proceedings Redbridge is an automatic party to this application. The application by Redbridge to be discharged as a party is refused.

I confirm, pursuant to paragraph 5 of the President’s Guidance: Citation of Authorities: Judgments of Circuit Judges and District Judges, 24 February 2025, that I intend this judgment to be citable. This statement is issued with the approval of the Family Presider.