Appeal judges at the High Court found that a judge at the East London family court’s “approach was flawed” after guardianship was awarded to a child’s foster carer without establishing if the threshold for permanent removal from the child’s family had been met.
In a Court of Appeal (Civil Division) judgment in Re E (A Child) (Special Guardianship Order: Public Law Proceedings), handed down remotely on 10th September, Lord Justice Moylan said Recorder Roche KC had been “wrong to apply a simple welfare balance” and “should have considered the issue of proportionality”. Lord Justice Singh and Lord Justice Phillips agreed.
The child’s mother and maternal grandmother had been granted permission to appeal a special guardianship order (SGO) made on 4th February 2026 by Recorder Roche KC, at the conclusion of care proceedings by the local authority, and the matter has now been remitted for rehearing.
The case concerns E, a six-year-old girl, whose first set of care proceedings began soon after she was born, in May 2020, due to concerns over her mother’s mental health. The proceedings concluded in July 2021, and special guardianship was awarded to E’s maternal grandmother.
The mother and grandmother lived together with E for several years, with the mother managing her mental illness with medication. She had been detained under the Mental Health Act when E was a baby and treated for post puerperal psychosis, but was released from hospital in July 2020 and was supported by her GP to come off her medication in 2023.
In March 2024, the local authority received a referral from someone who said he was a friend of E’s grandmother, who made a number of serious allegations. The allegations were later disputed and were not pursued by the local authority at the final hearing. However, as a result, two social workers visited the home and found E’s grandmother was abroad looking after her own mother.
The social workers were concerned at E’s mother’s “erratic presentation”, what E was saying had happened to her – including that her mother had bitten her – and how E was behaving. This led to them contacting E’s grandmother and asking if she would agree to E being accommodated by the local authority. The local authority claimed E’s grandmother had agreed, although she later disputed this.
E, then aged four, was removed from her mother’s home on 12th March 2024 and placed in foster care, with care proceedings beginning two days later. She had to be moved to a new foster carer, however, in August 2024, when her then foster mother was arrested for drink driving having left E alone at home.
E has remained living with the same foster carer since then and has had regular contact with her mother and grandmother since then, mostly face-to-face in a supported setting.
At the final hearing on care proceedings in January 2026, the local authority, supported by E’s foster carer, sought an SGO in favour of the foster carer. The mother sought the return of E to her care or to the joint care of herself and E’s grandmother. The grandmother sought the return of E to her care or to the joint care of herself and the mother. The mother and the grandmother each indicated that they would agree to a supervision order.
Recorder Roche KC, delivered his judgment on 3rd February 2026, saying: “In my judgment, taking [E’s] welfare as my paramount consideration, it is in her best interests to remain in her current placement under a special guardianship order. I do not believe that [E’s] best interests would be served by a return to the care of her mother and maternal grandmother even if they were provided with support under a supervision order.
“The risk of [E] suffering significant emotional harm firstly as a result of the move, secondly while living in the care of her mother and grandmother, and thirdly as a result of the possible breakdown of that placement is too great.”
Both E’s mother and maternal grandmother sought to appeal on the basis that the judgment didn’t address either the threshold criteria in s. 31(2) of the Children Act 1989 – to show that the child is suffering or is likely to suffer significant harm – or the issue of proportionality.
Mr Barnes KC, who acted pro bono on behalf of the mother, claimed “the judge had strayed very far from the proper approach required for the determination of care proceedings, where findings are made in relation to threshold, there is a proper analysis of competing options and a need for justification for removing a child permanently from their birth family”.
He referenced what Baroness Hale had said in Re B [2013], about the important role played by the threshold criteria, and on what Dame Siobhan Keegan LCJ said in Re H-W, about the need for the court to consider whether a proposed order was necessary and proportionate.
Lord Justice Moylan wrote in his decision: “I fully appreciate the pressures that the judge was under to deliver his judgment and to conclude these proceedings which had greatly exceeded the statutory time limit. I also appreciate, as referred to above, that we have been able to focus principally on the right legal approach while the judge had to consider a wide range of issues. However, it will be clear from what I have said above that I have, regrettably, come to the conclusion that the judge’s approach was flawed.”
“First, I consider that the judge should have determined whether, and if so how, the threshold criteria were established, which would have included determining the matters relied on by the Local Authority in its final threshold document. 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. It is, however, also because this should have been included as part of the structure of the judgment 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 foster carer.”
He added: “Secondly, I consider that the court was required to apply the 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.”
He described the mother and maternal grandmother’s appeals as having “considerable force” and highlighted 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 if E were to return to the care of the mother and or her grandmother “based on clear findings”.
The judgment concluded: “The mother’s and the [maternal grandmother’s] appeals must be allowed and the matter remitted for rehearing.”
