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Family Law

The leading authority on all aspects of family law

20 DEC 2007

CARE: Birmingham City Council v R [2006] EWCA Civ 1748

[2006] The Times December 29 (Court of Appeal; Thorpe, Tuckey and Wall LJJ; 20 December 2006)

The local authority plan was for the child to be placed with adoptive parents from outside the family. The maternal grandparents had party status in the care proceedings, and wanted the child to live with them under a special guardianship order, supported by the mother. The grandparents needed to obtain leave to make an application for a special guardianship order under s 14A(3) Children Act 1989, and under s 14A(7) 3 months' notice of any such application had to be given to the local authority. The grandparents had not sought such leave by the date of the directions hearing. At the directions hearing the judge ordered, inter alia, that the local authority undertake an assessment of the grandparents under s 14A(9). The authority appealed, arguing that the judge was not entitled to require that the assessment be undertaken. Although the appeal had been rendered academic by the subsequent grant of leave to make an application for a special guardianship order, the appeal was heard because of the importance of the issues.

A person who required the leave of the court to make an application for a special guardianship order could not either make an application for such an order or give notice of an intention to do so unless and until he had obtained the court's permission to make the application. Section 14A(8), requiring the local authority to investigate and prepare a report, was not triggered when a person who required the court's permission to make an application, but had not obtained it, purported to give notice of an intention to make an application for a special guardianship order. The judge should not have invoked s 14A(9) to compel the local authority to perform its obligations to investigate and to prepare a report under s 14A(8) in circumstances in which permission to apply for a guardianship order was needed, but the person concerned had not yet obtained permission (unless under s 14A(6)(b) the court considered that a special guardianship should be made even though no application had been made).

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