| Adoption — Adoption proceedings — Special guardianship order — Whether more appropriate than adoption order — Whether judge entitled to order special guardianship of her own motion — Children Act 1989, s14A (as inserted by Adoption and Children Act 2002, s115)
In re S (A Child)(Adoption: Special Guardianship)
CA: Thorpe, Tuckey and Wall LJJ: 6 February 2007
A judge was entitled of her own motion to make a special guardianship order pursuant to s 14A of the Children Act 1989 (as inserted by section 115 of the Adoption and Children Act 2002), in proceedings brought for adoption.
The Court of Appeal so held in giving its reasons for dismissing an appeal on 23 November 2006 brought by the prospective adopter of S against the decision of Judge Kushner QC, sitting as a judge of the High Court, to make a special guardianship order rather than an adoption order.
WALL LJ, delivering the judgment of the court, said that the statutory scheme for making special guardianship orders was designed generally to allow unfettered access to the court thereafter by parents in relation to all orders except residence. It that respect special guardianship did not always provide the same permanency of protection as adoption. Thus, in a finely balanced case, the balance could well tip in favour of adoption. There was no doubt, as s 14A(6)(b) of the 1989 Act made clear, that the court had power to make a special guardianship order of its own motion, where the welfare of the child was in issue in any family proceedings. If no application for a special guardianship order had been made by any of the parties, a common reason was that no-one wanted it. The statute therefore implicitly envisaged an order being made against the wishes of the parties, and in a case in which the party seeking a different order did not want to be appointed the child’s special guardian. In the present case, their Lordships took the view that the judge had been entitled to conclude on balance that S’s welfare was better served by a special guardianship order. The judge had thus been entitled not to address the question of parental consent. Although the trigger for the report identified in s 14A(8) of the 1989 Act was notice to the local authority given by a prospective special guardian, in the present case the order had been made under s 14A(6)(b). In such circumstances, s 14A(11) was unequivocal, and the court did not have the power to make a special guardianship order “unless it has received a report dealing with the matters referred to in subs (8)”. Accordingly, in a case such as the present, it was incumbent on the judge to exercise her power under s 14A(9) to ask the local authority to conduct its investigation and prepare a report. Subject to that last point being satisfactorily resolved, the appeal would be dismissed.
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Appearances: Catherine Shelley (Salt Veeder, Bury) for the prospective adopter; Yvonne Healing (Woodcock & Sons, Bury) for the mother; Richard Humphry (Howarth Maitland, Bury) for the father; Alan Cryne, solicitor (Temperley Taylor, Middleton) for the guardian.
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