Re E (A Child) (Special Guardianship Order: Public Law Proceedings)

Court

In The Court of Appeal (Civil Division)

Practice Areas

Public Children Law

Two members of 4PB appeared in the reported decision of Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167.

Chris Barnes KC (acting on a pro bono basis) and Lucy Logan Green (acting on a reduced cost basis) (instructed by Bindmans LLP) appeared on behalf of the first Appellant, the mother.

The mother and maternal grandmother appealed a Special Guardianship Order (“SGO”) made on 4 February 2026 at the end of care proceedings and in accordance with the final care plan in which the Local Authority set out that it was “seeking a Special Guardianship Order to be granted to” the child’s foster carer.

The Court of Appeal held that the conclusion of the first instance judge’s approach was flawed. Instead, the judge should have determined whether, and if so how, the threshold criteria in s.31 (2) was established, which would have included determining the matters relied on by the Local Authority in its final threshold documents. Firstly, this is in part because the care options which required analysis and determination included the making of a supervision order as well as, on the mother’s and the maternal grandmother’s respective cases, a care order. In addition, because this should have been included as part of the structure of the judgement so as properly to reflect that the court was determining care proceedings and that one of the options being considered was an SGO in favour of E’s (the child’s) foster carer.

Secondly, the court was required to apply with conventional and well-established principles which apply when the court is deciding whether to remove a child from their family which include whether the order which the court is proposing to make is necessary and proportionate. This was required to properly reflect the fact that the court was determining care proceedings and that the order being sought was an SGO in favour of a foster carer, an “intrusive” form of order which, to quote from Re H-W (Children) [2022] UKSC 17, “has consequences almost as far-reaching” as an adoption order and certainly not less than those of many care orders.

Lord Justice Moylan allowed the mother’s and maternal grandmother’s appeals and the matter is to be remitted for rehearing.

Read the judgment here.