Tag Archive for: proportionality

The Court of Appeal’s key message

A Special Guardianship Order made at the end of care proceedings in favour of a foster carer can represent a very significant state interference with family life.

The court cannot treat that outcome as though it were merely choosing between two broadly equivalent welfare options.

The judgment must confront why permanent placement outside the birth family is necessary and proportionate, and in cases such as Re E the court should determine the section 31 threshold rather than leaving the factual basis for state intervention unresolved.

Re E: five things to know first

1. The mother and maternal grandmother won the appeal.
The case was sent back for rehearing.

2. The Court did not say the child must return to her family.
The rehearing must determine the outcome using the correct legal framework.

3. Welfare remains paramount.
But a simple welfare balancing exercise was inadequate for an intrusive long-term placement outside the birth family.

4. Section 31 threshold does not legally apply to every SGO.
However, the Court said that at the conclusion of care proceedings the court should typically determine whether threshold has been established before deciding whether to make an SGO, subject to the circumstances of the individual case.

5. Necessity and proportionality are not optional extras.
The court must explain why the proposed interference with family life is justified and why less interventionist options are insufficient.

What happened in Re E?

E was born in March 2020.

Earlier care proceedings had concluded in 2021 with a Special Guardianship Order in favour of her maternal grandmother.

Further care proceedings began in March 2024 and E moved into foster care.

By the final hearing, E had been living with her current foster carer for approximately 18 months and had regular contact with her mother and maternal grandmother.

The Local Authority’s final plan, supported by the Children’s Guardian, was for E to remain with the foster carer under a Special Guardianship Order.

The mother and maternal grandmother sought E’s return to family care.

They were also prepared to accept supervision arrangements.

The first-instance judge concluded that E’s welfare was best served by remaining with her foster carer under an SGO.

The reasoning centred upon welfare and the perceived risk of significant emotional harm if E returned to the mother and grandmother.

But the judge did not determine the section 31 threshold and did not undertake the necessary proportionality analysis.

That became the central issue on appeal.

Why is a Special Guardianship Order so significant?

A Special Guardianship Order can sometimes be spoken about as though it were a relatively moderate alternative to a care order or adoption.

That can obscure its real legal effect.

Under section 14C Children Act 1989, the special guardian has parental responsibility and, subject to other existing orders, may exercise that parental responsibility to the exclusion of other people with parental responsibility, apart from another special guardian.

The Court of Appeal emphasised the importance of permanence.

An SGO is designed to provide a secure, long-term legal arrangement for the child’s upbringing.

That can be entirely appropriate.

But where the proposed special guardian is a foster carer and the consequence is that a child remains permanently outside their birth family, the order represents a substantial interference with existing family relationships.

What went wrong at first instance?

The trial judge directed himself that E’s welfare was paramount and undertook a welfare balancing exercise between the available options.

That proposition was not wrong in itself.

The Children Act 1989 does require the child’s welfare to be the court’s paramount consideration.

But the Court of Appeal held that the analysis stopped too early.

Lord Justice Moylan said the judge was wrong to apply a simple welfare balance.

The court should also have addressed whether the proposed long-term interference with E’s family life was:

• necessary;
• proportionate;
• supported by an adequate factual foundation; and
• justified by the identified risk of harm.

This is a critical distinction.

Imagine two possible placements:

Placement A appears more stable and carries fewer identified risks.

Placement B allows the child to remain within their birth family but requires substantial support and risk management.

A welfare comparison might favour Placement A.

But public law requires another question:

Is removing the child permanently from family care actually necessary, or could the identified risks be adequately managed through a less interventionist option?

That is the question which proportionality forces the court to answer.

Why did the section 31 threshold matter?

Section 31(2) Children Act 1989 provides the statutory threshold for making a care or supervision order.

The court must be satisfied that the child:

• is suffering, or is likely to suffer, significant harm; and
• that the harm or likelihood of harm is attributable to the care being given, or likely to be given, not being what it would be reasonable to expect a parent to give, or to the child being beyond parental control.

There is an important technical distinction in Re E.

Section 31 threshold is not, as a matter of statutory law, a prerequisite to making every Special Guardianship Order.

The Court of Appeal expressly recognised that.

But Lord Justice Moylan went on to say that the court should typically determine whether the threshold criteria have been established before making an SGO at the end of care proceedings.

Why?

Because threshold performs an important constitutional function.

It identifies the factual justification for compulsory state intervention in family life.

It prevents the process from drifting into:

“This child would probably have a better life somewhere else.”

That is not enough.

The state does not remove a child permanently from family care merely because another placement is considered preferable.

The intervention has to be justified by the harm or risk of harm identified in the evidence.

Necessity and proportionality: what do they actually mean?

The proportionality principle comes from both domestic child law and Article 8 of the European Convention on Human Rights.

Article 8 protects respect for private and family life.

The right is not absolute.

The state can intervene to protect a child.

But the interference must be justified.

The Supreme Court in Re H-W (Children) [2022] UKSC 17 restated the requirement that intrusive public-law orders must be necessary and proportionate.

The longstanding principle is that the court should make the least interventionist order capable of adequately protecting the child.

This does not mean:

“Always leave the child with the birth family.”

It means:

if a less intrusive option can safely meet the child’s needs, the court must properly evaluate it.

The questions the court should be asking

Re E draws heavily upon the structured proportionality analysis restated in recent Court of Appeal authority.

In practical terms, the court should be able to answer questions such as:

What Re E does not say

This judgment should not be overstated.

It does not establish that:

• a child must remain with or return to their birth family;
• a foster carer should not become a special guardian;
• Special Guardianship Orders are inappropriate at the end of care proceedings;
• section 31 threshold is legally required for every SGO in every context;
• family placement automatically outweighs stability;
• the child’s existing attachment to a foster carer is unimportant; or
• the first-instance judge’s final welfare conclusion was necessarily wrong.

The appeal succeeded because the legal route to the decision was inadequate.

The correct outcome still has to be decided at rehearing.

That is an important appellate-law distinction:

A court can reach a plausible welfare conclusion and still be wrong in law because it did not perform the analysis required before making the order.

Why the final factual matrix matters

There is another important evidential lesson in Re E.

The Local Authority’s case changed significantly during the proceedings.

The original threshold document relied upon a number of serious allegations.

By the final hearing, most of the most serious allegations were no longer pursued.

The Court of Appeal noted that for roughly the first eight months the case being advanced by the Local Authority was therefore substantially different from its final threshold case.

This matters because decisions should be made on the case that actually survives to final hearing.

Not the case which existed at issue.

Not the allegation which once appeared in an early social-work statement.

Not the concern which was later abandoned.

Not the most dramatic historical version of events.

The court needs a clear final factual matrix.

This is exactly why evidential status matters.

Has the case against your family changed during proceedings?

Long-running children cases often accumulate multiple threshold documents, reports, assessments and professional opinions.

The risk is that allegations which were withdrawn, modified or never proved continue influencing the welfare narrative.

JSH Law can provide defined-scope support with:

• chronologies;
• threshold and allegation mapping;
• evidence-source registers;
• contradiction analysis;
• identifying withdrawn, disputed and established matters;
• witness-statement preparation support;
• position statements;
• Cafcass and professional-report analysis;
• appeal-paperwork support; and
• hearing preparation.

The aim is to make clear what the case actually is now — not merely what has been alleged at some point in the proceedings.

Book a consultation

What does Re E mean for parents?

If the Local Authority proposes that your child remain permanently outside the birth family, do not focus only on arguing that you are the better parent.

The more forensic questions are:

• What exact harm is relied upon?
• What facts establish it?
• What remains disputed?
• What has been withdrawn?
• What risk is said to exist now?
• How likely is that risk?
• What safeguards could reduce it?
• What support has been considered?
• What harm would the child experience through permanent separation?
• Why is the proposed order said to be necessary?

That creates a more legally focused case than simply saying:

“I love my child and they should be with me.”

Love matters.

But the court has to decide risk, welfare and proportionality.

What does this mean for grandparents and kinship carers?

Re E is also important for wider family members.

Family Court proceedings sometimes become framed as:

parent versus foster placement.

That can overlook viable kinship options.

Where a grandmother, grandfather or other relative is putting themselves forward, the court should have a clear evidential basis for assessing that option.

Relevant questions may include:

• What concerns are actually made against the relative?
• Are those concerns proven?
• Can they protect the child from identified risks?
• What support would make placement viable?
• What assessment has been undertaken?
• Has the assessment become outdated?
• Does the relative understand previous findings?
• What is the child’s existing relationship with them?

The answer cannot simply be that the foster placement is already settled.

Settlement is highly relevant.

But it must form part of a legally sufficient comparative analysis.

What does Re E mean for foster carers?

The judgment is not hostile to foster carers becoming special guardians.

A foster carer may have provided outstanding care and developed a profound attachment with the child.

An SGO may ultimately be the right outcome.

But a foster carer’s relationship with the child also deserves procedural fairness.

In Re E the appeal initially had to be adjourned because the foster carer had not been joined or given an opportunity to make submissions even though the outcome could substantially affect her.

That is another useful reminder:

where somebody’s established family life with a child may be directly affected by an appeal, their procedural position cannot simply be overlooked.

No “natural parent presumption” — but that is not the same as no protection for family life

There is an important distinction here.

The law does not operate on the basis that a biological parent automatically wins because they are the parent.

Welfare remains paramount.

But the absence of a parental presumption does not mean the state is free to choose whichever household appears objectively preferable.

Family life is protected.

Compulsory intervention needs justification.

That is the role of threshold, risk analysis, necessity and proportionality.

Those safeguards do not guarantee a family placement.

They ensure the court properly explains why a family placement can or cannot safely meet the child’s needs.

If you are a litigant in person, what should you look for?

Apply the JSH Law Six-Question Check

Re E is almost a textbook example of why the JSH Law Six-Question Check matters.

Could this create a ground of appeal?

Potentially — but not simply because a party disagrees with an SGO.

Re E demonstrates that an appellate issue may arise where the court has:

• failed to determine material disputed facts;
• failed to determine threshold where it should have done so;
• treated an intrusive SGO as a simple welfare choice;
• failed to evaluate realistic less-interventionist options;
• failed adequately to analyse risk;
• or failed to undertake a sufficient necessity and proportionality assessment.

Whether any individual case contains an arguable appeal depends upon the actual judgment, reasons, evidence, procedural history and order.

And appeal deadlines may be short.

For practical appeal guidance, see How to Appeal a Family Court Decision in 2026.

The wider lesson from Re E

The importance of this judgment goes beyond Special Guardianship Orders.

Family justice repeatedly has to balance two serious responsibilities.

The state must protect children from harm.

But it must also protect families from unnecessary state intervention.

Those responsibilities are not opposites.

They are the reason the legal safeguards exist.

Welfare tells the court where the child’s interests lie.

Threshold identifies the factual justification for compulsory intervention.

Risk analysis examines what may happen and how serious it would be.

Proportionality asks whether the proposed response goes further than necessary.

And Article 8 requires the court to remember what is actually being interfered with:

a child’s family life.

A permanent placement outside the birth family cannot be justified merely because it looks like the better option. The court must show why the level of intervention is necessary on the facts it has actually established.

That is the real importance of Re E.

Need help making sense of a complex Family Court case?

JSH Law provides defined-scope support to litigants in person in children proceedings.

Depending on the agreed scope, support can include:

• chronologies;
• threshold and allegation analysis;
• evidence-source mapping;
• witness-statement preparation support;
• position statements;
• professional-report analysis;
• appeal paperwork;
• court-bundle preparation support; and
• hearing preparation and McKenzie Friend support where appropriate.

The purpose is not simply to produce more paperwork. It is to make the legal and evidential issues easier for the court to identify and decide.

Book a consultation

Related JSH Law guides

• How to Appeal a Family Court Decision in 2026
• Family Court Bundles in 2026
• The JSH Law Six-Question Check
• Can Family Court Findings Be Reopened? Re SB [2026] EWFC 264

Primary and authoritative sources

• Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167
• Children Act 1989, section 31 — Care and Supervision
• Children Act 1989, section 14A — Special Guardianship Orders
• Children Act 1989, section 14C — Effect of Special Guardianship Orders
• Re H-W (Children) [2022] UKSC 17 — UK Supreme Court
• F (Children: Placement Orders: Proportionality) [2026] EWCA Civ 990
• Re B (A Child) [2013] UKSC 33