Re S, Re AJ, Re M-J
1. Facts:
• Background: The Court of Appeal (CoA) considered three conjoined cases involving applicants seeking adoption orders for children. In each case, the local authority (LA) proposed Special Guardianship (SG) instead of adoption. The core issue was whether SG was a suitable alternative to adoption in the context of child welfare.
• Legal Issue: The cases centred around the suitability of SG orders compared to adoption orders. Adoption results in the complete termination of parental rights, whereas SG allows for parental status to continue, albeit with enhanced responsibilities and authority granted to the special guardian.
2. Outcome:
• Court’s Decision: The CoA concluded that SG orders should not be automatically deemed less suitable than adoption. The Court emphasised that the primary consideration is what would best promote the child's welfare. SG was recognised as a viable option that could protect the child's welfare just as effectively as adoption in certain cases.
• Comparison of SG and Adoption: The Court noted fundamental differences between the two options:
◦ Adoption: Ends parental status and transfers all parental rights and responsibilities to the adopters.
◦ Special Guardianship (SG): Allows parental rights to remain with the biological parents, but grants the special guardian substantial authority and responsibility. Parents can still apply for Section 8 orders (contact, residence, etc.) if SG is in place, which is not possible under adoption.
• Human Rights Consideration: Under the Human Rights Act (HRA), intervention must be necessary and proportionate. Since SG does not sever parental status entirely, it was considered a less drastic measure while still providing strong protection for the child’s welfare.
3. Impact and Analysis:
• Suitability of SG vs. Adoption: The cases highlight that SG can be a preferable option in scenarios where preserving some connection to biological parents is beneficial or where adoption might be too severe a measure. The decision underscores that SG can be as effective as adoption in protecting child welfare, depending on the circumstances.
• Legal Precedent: The ruling established that SG should be given serious consideration as an alternative to adoption, particularly when it serves the child’s best interests. It challenges the notion that adoption is always the preferable option and recognises SG's significant role in certain child welfare cases.
• Impact on Practice: This decision influences how courts and local authorities assess and decide between SG and adoption. It affirms the need for a thorough examination of each case’s specifics, ensuring that the chosen legal arrangement aligns with the child’s best interests and the proportionality of the intervention.
• Rights of Biological Parents: The ruling also highlights the continued rights of biological parents under SG, allowing them potential contact and involvement, which contrasts with the complete severance of parental rights in adoption cases. This aspect is crucial in cases where maintaining some connection to biological parents is deemed beneficial for the child.