Court of Appeal says care and special guardianship orders can coexist (and be made together)

On 30th April 2021, the Court of Appeal handed down judgment in the case of Re F and G (Discharge of Special Guardianship Order).

The two key issues considered by the Court were whether as a matter of law care and special guardianship orders (SGO) can coexist and, if they can, whether in the circumstances of this case the judge was wrong to allow the SGO to continue – the subject children having been removed from the care of the ‘father’ in whose favour the SGO had been made.

Whilst the Court of Appeal’s acceptance that the two orders can coexist, (and on the facts of this case be made at the same time), will surprise many practitioners, especially in light of the Public Law Working Group’s recent statement that consideration of making of a Supervision together with a SGO should be a ‘red flag,’ Celestine Greenwood of Exchange Chambers, welcomed the decision.

Celestine, led by Deirdre Fottrell QC of 1GC, was instructed to represent the special guardian who was not the biological father of the children but who had been in their lives and cared for them as their ‘father’ from birth.

The SGO had been made and subsequently permitted to continue by the court of first instance to ensure that the ‘father’s’ status, commitment to, and interest in the children were safeguarded.

The Court of Appeal has remitted the question of whether it was wrong to permit that order to continue, the children having been removed into care by the local authority, to the Family Court.

Commenting on the case, Celestine Greenwood said:

“The issues raised by this case put the spotlight on how family life in the UK has changed dramatically over the years. It raises the very important issue of how the law can and should recognise and protect the non-biological parent-child relationships that exist up and down the country and that are vital to the individual children and adults involved. “

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