Threshold Before Permanence: What Re E Means for Fathers Facing a Special Guardianship Order

Media sweep: 27 September 2026

Fathers United. Rights Respected. Every Dad Matters.

The Court of Appeal has delivered an important judgment for families involved in public law children proceedings: Re E (Special Guardianship; Public Law Proceedings) [2026] EWCA Civ 1167.

The central message is clear. Where a Special Guardianship Order (SGO) is proposed at the end of care proceedings, the court should normally determine the section 31 threshold before making the SGO.

This matters because an SGO is not a minor administrative arrangement. It is a permanence order that can significantly alter a father’s practical role, decision-making authority and relationship with his child.

The ruling strengthens an essential safeguard: a permanent arrangement should not be created by sidestepping the legal basis for state intervention.

Important: This article is general information and is not legal advice. It focuses on England and Wales. Scotland and Northern Ireland have different legal systems, terminology and procedures. Fathers in those jurisdictions should obtain advice specific to their location.

The key point from Re E

The Court of Appeal held that, although the section 31 threshold does not technically apply as a statutory precondition to making an SGO, the court should typically determine whether the threshold is met before deciding whether to make an SGO at the conclusion of care proceedings.

The court must then consider:

The child’s welfare.
The realistic placement options.
The risks and protective measures involved.
Whether the proposed SGO is necessary.
Whether the interference with family life is proportionate.

The decision rejects a simple approach of asking only: “Which placement appears best for the child?”

Welfare is vital. But in public law proceedings, the court must also properly examine why state intervention is justified and whether the proposed permanent arrangement is legally and practically necessary.

What is the section 31 threshold?

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

The court may only make one of those orders if it is satisfied that:

The child is suffering, or is likely to suffer, significant harm; and
The harm, or likelihood of harm, is attributable to one of the statutory conditions.

Those conditions are:

The care given to the child, or likely to be given if an order were not made, is not what it would be reasonable to expect a parent to provide; or
The child is beyond parental control.

Both parts matter. It is not enough simply to say that a different home might offer greater stability or that another placement appears preferable. The evidence must establish significant harm, or a likelihood of significant harm, and connect that harm to the statutory circumstances.

What does “harm” mean?

The legislation defines harm broadly. It includes ill-treatment or impairment of a child’s health or development.

That can include:

Physical harm.
Emotional or psychological harm.
Impairment of social or behavioural development.
Harm arising from seeing or hearing the ill-treatment of another person.
Sexual abuse and other forms of non-physical ill-treatment.

The question is not whether a parent is perfect. The question is whether the evidence satisfies the statutory test.

What is a Special Guardianship Order?

An SGO is designed to provide a child with a secure, stable and permanent home with someone who is not necessarily a parent. A special guardian is often a relative, family friend or foster carer.

An SGO:

Gives the special guardian parental responsibility.
Allows the special guardian, while the order remains in force, to exercise parental responsibility to the exclusion of most other people with parental responsibility.
Provides a form of legal permanence.
Does not legally sever the child’s relationship with their birth parents in the same way as adoption.
Can sit alongside arrangements for contact with parents and other relatives.

The Court of Appeal recognised that an SGO is a very significant and intrusive order. It may not have exactly the same legal effect as adoption, but it can permanently shape where a child lives and how family relationships operate throughout childhood.

That is why the court must not treat an SGO as merely the least dramatic option after a care order has been ruled out.

Why the threshold should come first

The threshold acts as a safeguard for both children and families.

It prevents compulsory state intervention from being justified only by a broad welfare preference. The court must identify the harm relied upon, assess the evidence and make clear findings about disputed facts.

This sequencing matters:

What harm has the child suffered or is likely to suffer?
What is that harm attributable to?
Which realistic plan best protects the child and promotes their welfare?
Is the proposed order necessary and proportionate?

If an SGO is made first and the threshold is never properly tested, there is a risk that permanence becomes the answer before the legal basis for intervention has been established.

That is the structural concern addressed by Re E. A child should not be moved into a permanent arrangement outside the parental home simply because that placement appears settled, without the court examining whether the statutory justification for intervention has been established.

What an SGO means for a father’s parental responsibility

A father may retain parental responsibility after an SGO is made. However, the special guardian will generally be entitled to exercise parental responsibility to the exclusion of other people with parental responsibility, subject to statutory exceptions and any other court orders.

In practical terms, this can significantly affect a father’s ability to influence major decisions about:

Where the child lives.
Education.
Medical treatment.
Religion and upbringing.
Daily routines and care.
Travel and other important arrangements.

A father does not necessarily lose his legal status as a parent. But his parental responsibility becomes substantially limited in practice because the special guardian’s decision-making authority takes priority in most circumstances.

This is one reason why the threshold question matters so much. Before that decision-making structure crystallises, the court should properly determine the factual basis for intervention and assess whether placement away from the father is necessary and proportionate.

Contact after an SGO

An SGO does not automatically end a child’s relationship with their father.

Contact may be:

Set out in the order.
Regulated by a separate child arrangements order.
Agreed between the father and the special guardian.
Supported through a contact plan involving professionals where appropriate.

The special guardian usually manages the child’s day-to-day life. That means contact arrangements need to be realistic, clear and centred on the child’s welfare.

If contact is not working, a father should avoid relying only on informal complaints. He should:

Keep a dated record of missed or changed contact.
Communicate calmly and in writing where possible.
Focus on the child’s needs rather than personal conflict.
Seek advice about applying for or varying a child arrangements order.
Check whether the court requires permission for a particular application.
Consider mediation or other dispute-resolution options where safe and suitable.

An SGO is intended to provide permanence, not to erase a child’s important family relationships. Fathers should ensure that contact is considered carefully before the order is made.

How an SGO compares with other permanence options

Issue	Special Guardianship Order	Child Arrangements Order	Adoption
Parental responsibility	Gives the special guardian parental responsibility. The special guardian can generally exercise it to the exclusion of others with PR, apart from another special guardian, subject to statutory exceptions.	A person named as someone with whom the child lives may obtain parental responsibility, but it is generally shared with the parents and others who hold PR.	Adoptive parents obtain parental responsibility. Birth parents normally lose parental responsibility and the legal relationship is fundamentally changed.
Decision-making	The special guardian usually makes major and day-to-day decisions, although some decisions require consent or court involvement.	Decision-making is more shared. The order does not usually give the non-parent the same overriding authority as an SGO.	Adoptive parents make decisions as the child’s legal parents.
Permanence	Intended to provide long-term legal permanence, usually until the child reaches adulthood, while preserving the legal link with the birth family.	Can provide stability, but is generally less permanent and less powerful than an SGO.	Usually the most legally permanent option and severs the legal relationship with the birth family, subject to the law relating to contact and adoption.
Father’s legal relationship	Father remains a legal parent but may have limited practical authority. Contact should be addressed separately or by agreement.	Father generally retains a more direct role in shared parental responsibility, depending on the order.	Father’s parental responsibility is normally ended by adoption.

An SGO therefore sits between a child arrangements order and adoption in legal effect. It preserves the child’s legal connection with the birth family but gives the special guardian substantially enhanced authority.

What fathers should do now

If an SGO is being proposed in care proceedings, early preparation is vital.

1. Seek legal advice and party status

Ask whether you are already a party to the proceedings. If not, obtain advice about whether you should apply to be joined or otherwise participate.

Do not assume that your position will be fully presented by another party.

2. Ask how the threshold is being addressed

Check:

What facts are relied upon?
What harm is alleged?
Is the harm said to have occurred, or is it a future risk?
How is the harm attributed to your care or proposed care?
Are the allegations disputed?
Has the court been asked to make clear findings?
Is the threshold being treated as a question to be determined rather than merely recorded by agreement?

Re E gives fathers a strong reason to ensure that this analysis is not bypassed.

3. Present a realistic care proposal

If you seek care of your child, set out a practical plan covering:

Housing.
Schooling.
Health and appointments.
Childcare.
Work commitments.
Support from relatives or trusted adults.
Safeguarding measures.
Contact with the other parent and wider family.
Any services, assessments or parenting work you have completed.

The court needs evidence, not only assurances.

4. Preserve evidence of your relationship with your child

Keep an organised record of:

Contact and parenting time.
School or nursery involvement.
Medical and dental appointments.
Financial and practical support.
Messages about arrangements.
Steps taken to address concerns.
Positive professional observations.
Your child’s routine and needs.

Avoid inflammatory commentary. Clear, factual records are more useful than accusations.

5. Consider your wider family network

The court should consider realistic options. That may include placement with you, shared support, or another safe arrangement within your family network.

A proposal must be credible and child-focused. Explain who can help, what safeguards are available and how risks would be managed.

The wider message for fathers

Re E is not a guarantee that an SGO will be refused. It is not a replacement for evidence, assessment or careful legal representation.

But it is an important safeguard. It confirms that a permanent placement outside a parent’s care must be approached with proper legal discipline.

The court should not simply say that a child is settled elsewhere and stop there. It should identify the harm, test the evidence, examine realistic alternatives and decide whether the proposed permanence is necessary and proportionate.

If you are facing an SGO proposal, engage early. Ask questions. Prepare evidence. Make sure your relationship with your child and your realistic care options are properly understood.

Join us in championing clear process, equal scrutiny and meaningful father-child relationships.