Section 37: guardianship order

In the same circumstances as a hospital order is available, the court may ‘by order… place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified’ (s37(1)).

The relevant criteria are:

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that …

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

In R (Buckowicki) v Northamptonshire County Council [2007] EWHC 310 (Admin)M it was held that the judge’s decision to impose a guardianship order is subordinate to the willingness of the local authority to accept the guardianship, and that the local authority has a wide discretion and, in refusing, were entitled to take the claimant’s propensity to be violent and disruptive into account.

The same considerations for discharge apply as to s7 guardianship applications except that the nearest relative:

  • cannot discharge under s23 (sched 1 part 1 para 8).
  • can apply to the Tribunal once in each 12-month period of the guardianship order (s69(1)(b)).


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