Special Guardianship at the End of Care Proceedings: Threshold Still Matters

By Laura Hibberd

Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167

Special guardianship orders are often thought of as the “middle ground” of permanence: more secure than a care order, less final than adoption, and with the child’s legal relationship with their birth family left intact. It can therefore be tempting, at the end of lengthy care proceedings in which the local authority proposes an SGO rather than a public law order, to treat the final decision as a straightforward welfare exercise. The Court of Appeal’s decision in Re E is a clear warning against doing so.

In a judgment handed down on 10 September 2026, Lord Justice Moylan (with whom Singh and Phillips LJJ agreed) allowed appeals by a mother and maternal grandmother against an SGO made in favour of a local authority foster carer, and remitted the case for rehearing. The court held that where an SGO in favour of someone outside the child’s family is proposed as the outcome of care proceedings, the court should typically determine whether the section 31(2) threshold is met, and must consider whether the order is necessary and proportionate. A “simple welfare balance” is not enough (paragraph 9).

Background

E was born in March 2020. The first set of care proceedings began shortly afterwards, when the mother (who was later diagnosed with bipolar disorder) was found to be incoherent and making threats against E. Those proceedings concluded in July 2021 with an SGO in favour of the maternal grandmother, effectively by agreement. The order recorded that threshold was satisfied but that no public law order was required, and that the family intended that the mother, grandmother and E would all live together.

In March 2024, a “family friend” of the grandmother made a number of serious allegations to the local authority, most of which (including the most serious) were not pursued at the final hearing. E was nonetheless removed and placed in foster care under an interim care order. That first placement ended abruptly in August 2024, when the foster carer was arrested for drink driving and told police that she had left E, then aged four, alone at home. E then moved to her current foster carer, with whom she had lived for almost 18 months by the time of the final hearing.

At the final hearing in January 2026, the local authority, supported by the Guardian, sought an SGO in favour of the foster carer. The mother and grandmother each sought E’s return to their care, alone or jointly, and each indicated that she would agree to a supervision order. Notably, the only psychiatric and parenting assessments of the mother dated from mid-2024, and so were over 18 months old. More recent letters from her mental health worker reported that she had been discharged from services, concluding: “At present, we have no concerns regarding her mental health”.

Recorder Roche KC directed himself that the court had “the single question to determine, namely what is best for the welfare of the child“, adding that “There is no natural parent presumption in either private law or public law“. His analysis followed the welfare checklist. He did not address proportionality, and when asked for clarification after judgment explained that he had not considered threshold because he did not think it “necessary or appropriate to make an order under section 31. I did, however, consider harm and the likelihood of harm”. He made the SGO.

The Decision

The central conclusion is that: “both the context of the proceedings and the intrusive nature of the proposed order are such that the court should adopt broadly the same approach that it would adopt when making a care order“.

Threshold

Moylan LJ accepted that, as a matter of law, section 31(2) did not apply because the court had not made a care or supervision order. However, “the court should typically determine whether the threshold criteria under s. 31(2) … have been established before deciding whether to make an SGO at the conclusion of care proceedings“. “Typically” leaves room for cases where this is neither necessary nor appropriate, but this was not such a case. Three reasons were given.

First, a supervision order was a live option. By declining to consider threshold because he was not making a section 31 order, the judge “could be said to have effectively predetermined” that a return home under a supervision order was not realistic.

Secondly, the purpose of threshold is to protect both child and family from unwarranted state interference. Under section 14C(1) Children Act 1989, a special guardian may exercise parental responsibility to the exclusion of anyone else. This means an SGO is “a very significant interference in the family life of a child and her birth family”. The court endorsed Baroness Hale’s warning in Re B [2013] UKSC 33: “It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold“.

Thirdly, determining threshold ensures the court has a proper factual foundation on the nature and level of harm. The court drew on Sir Andrew McFarlane P’s observation in Re B [2022] EWCA Civ 407 that threshold “goes to the core of the judicial exercise in every case. It is, in essence, what the case is about“.

Proportionality

Relying on Re H-W [2022] UKSC 17, in which the Supreme Court applied the Re B principles of necessity and proportionality to care orders with plans for long-term foster care, Moylan LJ held that an SGO in favour of a foster carer falls within the same category. The court set out again the structured questions to be asked when removal from the family is proposed – these are not new and are set out in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 276, and again in Re H-W. The court should finally consider whether any interference with Article 8 rights is “necessary and proportionate”.

Applying those principles, Moylan LJ said: “I fully appreciate the pressures that the judge was under … However … I have, regrettably, come to the conclusion that the judge’s approach was flawed”. Although the remaining grounds were not decided, the court saw “considerable force” in many of them, “in particular the absence of any assessment of the mother since 2024 and the need for a proper analysis of the risks relied on by the Local Authority … based on clear findings”. The court had earlier observed that the judge referred to “a risk” of relapse without any further analysis of how likely it was.

The cost of getting it wrong is significant: proceedings which began more than two years ago “will now be further prolonged”. Undoubtedly this will expose E to the ongoing instability of being in proceedings, which has sadly characterised much of her life.

Implications

For those acting for local authorities, the message is that a final threshold document is not a formality simply because the care plan is for an SGO rather than a care order. Where the plan is permanence outside the family, the court should be invited to make threshold findings. When considering welfare and placement away from parents and particularly if outside of the family, the evidence must support a proper proportionality analysis. Evidence that the child is settled and happy in placement is a very relevant factor, but is not the only one. 

For those representing parents and family members, Re E provides a framework for challenge if a local authority has failed to properly consider less interventionist options. It is also a reminder to ensure threshold is properly determined for the court to have a basis from which to assess future risk and what harm that may cause a child for each of the realistic placement options. The court’s comments on stale assessments may also be of real value where a parent’s circumstances have moved on during long proceedings.

For all advocates, there is a practical lesson. Moylan LJ noted that these issues “received far more attention” on appeal than at the hearing below. If threshold and proportionality are in issue, they should be squarely raised at the IRH and final hearing, and, if a judgment appears to skip them, a prompt request for clarification should be made.

The judge’s statement that there is “no natural parent presumption” was also criticised by counsel for the mother as a “bald statement”, on the basis that, while there is no presumption, the fact that the mother and grandmother were E’s natural family remained an important and significant factor. This is requires balancing against a child’s settled status in a placement and forms part of the court’s analysis. It is a reminder for practitioner to avoid short hand for what we may consider to be well established principles which then over summarise a more nuanced legal position.

Conclusion

The pressure to conclude care proceedings within the statutory timescale is real, and the Court of Appeal was careful to acknowledge it. Re E reminds us that an SGO in favour of a foster carer is not a light-touch outcome, in particular when a parent and/or another family member is seeking to care for the child. It is a permanent placement outside the birth family, and the court must approach it with full and proper analysis. Threshold and proportionality are not boxes to be ticked; they are “what the case is about”.