Update: children

The law of special guardianship orders (SGOs) continues to advance. They were added to the menu of Children Act 1989 orders less than half a decade ago. These SG allowances have unquestionably been the area of most unrest and litigation. B v London Borough of Lewisham [2008] EWHC 738 (Admin) was positively welcomed by grandparents and other relative carers: it held that Lewisham's policy of aligning SGO allowances to adoption allowances was unlawful. Black J (as she then was) stated that foster care core allowances and enhancements did not incorporate any element of remuneration. So there was no reason thatthe maximum SG allowance should not be the total of those two elements paid to foster carers.

It is understood that many local authorities subsequently revisited their SG policies to make them consistent with the judgment. In Barrett v Kirklees Metropolitan Council [2010] EWHC 467 (Admin), an SGO was made to the child's grandmother at the end of care proceedings. Her SG allowance was equivalent to two thirds of the local authority's fostering allowance. The question was whether the allowance was sufficiently close to the core fostering allowance as referred to in the SG guidance and the Lewisham case. Kirklees argued that in constructing its rate, it was exercising a discretion which was only challengeable on proper administrative law grounds. Langan HHJ said that the 'deviation in this case must inevitably be characterised as substantial and the required justification has to be proportionately powerful' to be considered lawful. In seeking to find justification, Kirklees turned to its cabinet decision. The rationale expressed in the decision was found inter alia not to have any logical connection to the decision. To set the allowance at two thirds of the fostering allowance was held unlawful as it involved a substantial departure from the guidance.

Discharge of SGOs was the subject of Wilson LJ's judgment in Re G (A Child) [2010] EWCA Civ 300. The appeal before the bench was settled by consent as the grandmother agreed with the mother's originating application that she be granted leave to apply for discharge of the SGO. Before the circuit judge, the grandmother argued that while she accepted that there had been a change in circumstances since the SGO was made, this was not 'significant' as required by the statutory test for leave to apply (section 14D(5) CA 1989). The mother had relied in the main on the fact that she had given birth to another child since the SGO was made in respect of the subject child and had parented that child without any local authority concerns. The judge did not view that to be significant when looking at the test, but more worrying was that he had been directed (by counsel for both parties) to consider section 10(9) CA 1989 which concerns itself only with the test for leave to apply for section 8 CA 1989 orders '“ which was erroneous as it involved reading into the test for leave to apply for discharge of SGOs an additional limb; something that Parliament did not intend.

Wilson LJ went on to ponder the disparity between the test in relation to SGOs and what presents as a lower threshold in relation to leave to apply for revocation of a placement order where the test refers only to a 'change in circumstances', absent the word 'significant'. He mentions it only as a flag as this was not a direct issue before the court. He did, however, say that 'for the time being I proceed upon the basis that there is no relevant difference' and that as the Court of Appeal had given guidance in relation to the revocation issue in M v Warwickshire County Council [2007] EWCA Civ 1084 that should also apply to leave applications to discharge or vary SGOs. It is an interesting point as Wilson LJ's approach involves reading out a work which Parliament had expressly used. This is undoubtedly an area which will call for the Court of Appeal's assistance in future as the SGO-holder who argues against discharge will wish to rely on a 'golden rule' interpretation as it ensures a more difficult test to overcome than that suggested by Wilson LJ.

Local authority failings

The local authority in Re X, Y and Z (children) [2010] EWHC B12 (Fam) attracted vast criticism from the appeal judge, HHJ Bellamy. The case had been set up for a 20-day fact-finding hearing in the High Court involving seven advocates including three QCs. Legal costs of the parents and children (all borne by the LSC) were in the region of £398,000. The case history is detailed and long and at the present hearing the local authority applied for leave to withdraw (under rule 4.5 FPR 1991) its application for care orders, close to two years after it commenced proceedings. The judge summarised the background thoroughly before visiting three questions. On the issue of whether to grant leave, the judge considered the few case authorities, discerning the following principles:

• The question to be addressed is whether the withdrawal of the proceedings will promote or conflict with the child's welfare - is there any advantage to the child in continuing the proceedings?
• The children's guardian has a duty to put their view to the court, but should think long and hard about opposing an agreement between the local authority and parent if sensible and appears to protect the child.
• Any party opposing must advance solid and cogent reasons but the decision was firmly the court's to make.
• Before pursuing such an application, the local authority should seek and consider the views of the children's guardian before reaching a final decision on whether or not to apply.

In the event, the judge did grant leave but was concerned to do so as the children would then be children in need under section 17 CA 1989 and he wished to investigate whether it was proper for the court to indicate an unwillingness to grant the local authority leave until first satisfied that the local authority would provide particular services and support. It appears the judge was not happy with the local authority's response to the two issues of refunding the parents the costs of a cancelled holiday and the family's strained housing conditions. On the question of whether the above principles regarding leave to withdraw required the judge to adjourn the application so that the local authority could return with a more acceptable care package, the judge stated that the court's power was limited and restrained from judicially reviewing the decisions of the local authority in this regard. It would have to fall to an aggrieved parent to petition the Administrative Court.

The judge then reviewed the cases dealing with costs in children law cases, noting that orders for costs were rare and affirmed that the 'appropriate test to apply '“ is the conduct of the local authority reprehensible or beyond the band of what is reasonable?'

Having reviewed the behaviour and failures of the local authority, HHJ Bellamy found the test met and ordered the local authority to pay a total of £100,000 towards the parents' costs. In terms relevant to child care lawyers and the LSC, this is equivalent to funding more than 27 parents' legal representation (excluding advocacy) costs in London at the fixed fee rate of £3,589 per case.

Leave to remove

Relocation cases have again featured in the higher courts with a spate of judgments where leave to remove had been refused. In the policy arena, the Washington Declaration on International Family Relocation, issued in March, seeks to harmonise the approaches taken by jurisdictions in dealing with such difficult cases. Three cases of note to those advising on leave to remove are Re TG (a child) [2009] EWHC 3122 (Fam), BD v AID [2010] EWCA Civ 50 and F v M [2010] EWHC 1346 (Fam).

In TG, several practice points can be gleaned. First, if a party wishes to, they can rely on socio-legal research into relocation (such as Professor Freeman's report for Reunite) then leave should be sought to produce such works into evidence.

Second, cases of this nature should attract the highest levels of case preparation. In this case, the mother's case was criticised: 'Her evidence did not approach the detail and maturity expected in opposed applications of this kind until very late in the court process,' and, even at that late stage, it was still being added to 'in major ways'. In the context of the pendulum swinging, applicants cannot afford to leave any stone unturned. Applications must be water-tight with precise proposals and supportive evidence to back up proposals.

Third, the danger of a poorly-prepared evidential case will be that the proposals (no matter how genuine) may appear ill thought out when described in oral evidence and the scope for contradiction and confusion huge. These problems will impact adversely on the court's view of credibility and trustworthiness. The applicant's motivation will come under strict scrutiny in the future, and therefore must be addressed in a statement as soon as possible to prevent doubt being casted.

Fourth, it is vital to any applicant's case that he or she gives consideration to the left-behind parent as the court and that party must have a measure of confidence that that relationship will be maintained. Such issues go directly to 'welfare' which, of course, is a primary consideration for the court.

Meanwhile, in BD, although permission to appeal was refused, the now president, Wall LJ, stated: 'There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left-behind parent.' Essentially this was not the right case to be taken to the Supreme Court, but the president appears to have laid a clear marker that the Payne principles are ripe for reconsideration.

The case of F v M raises the issue that respondents will often cross-apply in these cases for shared residence orders. Mostyn J states that these are nowadays the rule rather than exception (even when the division of care is unequal). 'There is very good reason why such orders should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was one of the reasons that we were ridden of the notions of custody and care and control by the Act of 1989.'

In a rights-based context, the case also suggests the right of the child, while growing up, to have 'a meaningful participation by both of his parents in his upbringing' is, in the judge's view, to be near to the very top of the hierarchy of rights protected by the ECHR. Mostyn J continued: 'This very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases.' Those acting for respondents must ensure that submissions are made on the point so that the court is reminded to weigh the factor in its decision making.

In discussing the difficulties with the current approach in the context of the declaration, Mostyn J stated: 'The declaration supplies a more balanced and neutral approach to a relocation application, as is the norm in many other jurisdictions. It specifically ordains a non-presumptive approach. It requires the court in a real rather than synthetic way to take into account the impact on both the child and the left-behind parent of the disruption of the periodicity and quantum of the prevailing contact arrangement. The hitherto decisive factor for us '“ the psychological impact on the thwarted primary carer '“ is relegated to a seemingly minor position at the back end of paragraph 4(viii).'