A Special Guardianship Order can provide a child with permanence and stability. It can enable a child to live securely with a relative, family friend or foster carer without the legal relationship with their birth parents being brought to an end through adoption.
However, a Special Guardianship Order is still a very significant order. That is particularly true where it is made in favour of a foster carer at the conclusion of care proceedings, with the result that the child remains permanently outside their birth family.
The Court of Appeal considered this issue in Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167. The judgment is an important reminder that the court cannot approach such a decision as a straightforward choice between competing welfare options.
What happened in Re E?
The case concerned a six-year-old child who had been living with a local authority foster carer for approximately 18 months. At the final hearing, the local authority and the children’s guardian supported the making of a Special Guardianship Order in favour of that foster carer.
The child’s mother and maternal grandmother opposed that plan. They sought the child’s return to the care of the family, either to one of them individually or to them jointly. They were also willing to accept the support and oversight of a Supervision Order.
The trial judge decided that the child should remain with the foster carer under a Special Guardianship Order. In reaching that decision, the judge applied the welfare checklist and considered which placement would best meet the child’s needs.
However, the judge did not determine whether the threshold criteria under section 31 of the Children Act 1989 was satisfied. Nor did the judgment contain the necessary evaluation of whether permanently placing the child outside her family was a necessary or proportionate.
The judge’s view was that, because no Care Order or Supervision Order was being made, it was unnecessary to decide threshold. A welfare analysis was considered sufficient.
Why did the Court of Appeal intervene?
The Court of Appeal found that this was the wrong approach.
A Special Guardianship Order gives the special guardian parental responsibility and ordinarily allows them to exercise it to the exclusion of others with parental responsibility, including the child’s parents. It is intended to provide legal permanence and can have consequences at least as significant as a Care Order.
Where a local authority proposes that care proceedings should conclude with a Special Guardianship Order, the court should in the majority of cases adopt broadly the same approach as it would when considering a Care Order.
That ordinarily requires the court to:
- decide whether the threshold criteria under section 31 of the Children Act 1989 is established;
- make clear findings about the harm the child has suffered or is likely to suffer;
- assess the nature and likelihood of any future harm;
- consider whether the risks could be reduced or managed through support or a less interventionist order;
- compare all realistic care options; and
- decide whether the proposed care plan is necessary and proportionate.
The court must do more than ask which placement appears to offer the child the greatest degree of stability or the best overall welfare outcome.
Why does threshold matter?
The threshold criteria is not a procedural technicality.
Before the state intervenes compulsorily in family life, the court must identify the significant harm which the child has suffered or is likely to suffer and determine what that harm is attributable to. Only then can the court properly assess what order is required to protect the child.
This matters because it is not enough to conclude that a child might be better off in another household. The court must identify the harm from which the child requires protection and determine whether permanent placement outside the family is necessary to address it.
In Re E, determining threshold was also essential because the mother and grandmother were proposing that the child return to the family under a Supervision Order. The court could not properly rule out that option without first deciding whether the legal test for making such an order was met.
By treating threshold as unnecessary because a Special Guardianship Order was preferred, the trial judge had neglected to establish the facts of the matter, which would have informed any welfare decision which followed.
The importance of up-to-date evidence
The Court of Appeal also expressed concern about the evidential basis upon which the mother had been ruled out.
The principal psychiatric and parenting assessments of the mother were more than 18 months old by the time of the final hearing. There was more recent evidence that she had remained stable, had engaged with treatment and had been discharged from mental health services with no current concerns about her mental state.
The earlier parenting assessment had not concluded that the mother could never care safely for the child. It identified difficulties which might be addressed through treatment and parenting work. Nevertheless, the mother had effectively been ruled out without a sufficiently current reassessment of her position.
The judgment is therefore also a reminder that decisions about permanent family separation must be based on current evidence. Historic concerns remain relevant, but the court must evaluate the parent’s circumstances and abilities at the time of the final hearing.
Does threshold have to be decided in every case?
The Court of Appeal stopped short of saying that threshold must be determined whenever a Special Guardianship Order is made during care proceedings.
There may be cases where deciding threshold is unnecessary or inappropriate because of their particular circumstances. However, where the proposed order places a child permanently outside their birth family, particularly with a foster carer, the court should ordinarily make clear findings on threshold and undertake a full necessity and proportionality analysis.
Why is the decision important?
Re E confirms that a Special Guardianship Order is not a softer alternative which avoids the need for the careful analysis required in care proceedings.
The label attached to the final order does not determine the level of scrutiny required. What matters is the effect of the order on the child and their family.
Where a Special Guardianship Order would result in a child remaining permanently outside their family, the court must identify the factual and legal basis for that intervention. It must consider whether the risks can be safely managed in another way and whether a less interventionist order could meet the child’s needs.
In Re E, the lack of threshold findings meant that there was not a sufficient factual foundation for ruling out the mother and grandmother. The appeal was therefore allowed and the case was sent back for a rehearing, further prolonging proceedings that had already lasted more than two years.
How we can help
Decisions made at the conclusion of care proceedings can affect a child and their family throughout childhood.
Parents and family members should receive clear advice about:
- the threshold allegations relied upon by the local authority;
- whether those allegations are accepted or disputed;
- whether assessments remain current and reliable;
- the realistic options for the child’s care;
- the support that could make a family placement viable;
- whether a Supervision Order or another less interventionist arrangement has been properly considered; and
- whether the final care plan and proposed order are necessary and proportionate.
Our Family Law team represents parents, children and family members throughout care proceedings, including cases involving Special Guardianship Orders, Care Orders and Supervision Orders. Early advice can be particularly important where a family member is being assessed as a potential carer or where a parent considers that the evidence relied upon no longer reflects their present circumstances.
Read the judgment: Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167
