Special Guardianship Orders – what are they?

 

Special Guardianship Orders, under Sections 14A to 14F of the Children Act 1989 and the Adoption and Children Act 2002, are now being used more frequently in Family Court proceedings. The Orders are used in cases where it has been established that the child(ren) cannot continue to be cared for by their birth parent(s). Special Guardianship Orders provide the child(ren) with a secure and long lasting placement, whilst also allowing familiar links, such as continued contact with birth parents and siblings (if agreed), as they do not extinguish the parental responsibility of the birth parent(s). They provide an alternative to the last resort of adoption, often keeping child(ren) being cared for within the wider family unit.  As such, Special Guardianship Orders are highly regarded as it allows the child security of placement and the Special Guardian legal rights.

What is a Special Guardianship Order?

A Special Guardianship Order places a legal right for a child(ren) to live with someone other than their birth parent(s) on a long term basis. The person who the child(ren) live with is known as the Special Guardian.  A Special Guardian can either be a sole person or a joint application – there is no requirement that you have to be married to make a joint application; for instance a grandmother and her partner could apply for a Special Guardianship Order over the grandmother`s grandson.

The Order grants parental responsibility to the Special Guardian to allow that person to make the day to day decision on caring for the child(ren) that is placed in their care, to the exclusion of all others with parental responsibility (ie birth parents) other than that of the other Special Guardian (if another was appointed by the Court).

This means that in practice birth parents are still involved with the child(ren) as they retain their parental responsibility, but for example, if there is a dispute over where the child should go to school, then whilst the birth parents would have a say in the decision making, the Special Guardian would have the final decision making power.

Who can apply for a Special Guardianship Order?

In order to apply for a Special Guardianship Order, you must be over the age of 18 years of age and not the birth parent of the child that you are seeking an Order over.

How do I apply for a Special Guardianship Order?

The first step is to consider when looking to make an application is whether you automatically have permission to apply for such an Order, or whether you must make an application to the Court seeking their permission to do so. Unless you can fulfil one of these criteria, you will need to make an application for permission to apply as the first step :-

• The child is a relative of you and has lived with you continuously for the last 12 months prior to making the application; or

• You are a Local Authority foster carer who has had the child living with you for a continuous period of the last 12 months immediately prior to making the application;

• The child has lived with you for 3 out of the last 5 years; and the child has not lived outside of your care for any period in the last 3 months; or

• You are the Guardian of the child; or

• The child is currently in Local Authority foster care and the Local Authority consents to you making the application; or

• You have a Child Arrangements Order or a Residence Order in respect of the child; or

• You have permission from the Court to make the application; or

• You have the consent of all those who hold parental responsibility.

Once the Court has granted you permission, you are able to make an application for a Special Guardianship Order.

Assessment and Financial assistance under a Special Guardianship Order

To determine the suitability of a child(ren) being placed with a prospective Special Guardian,  assessments will need to be undertaken. If an assessment is not automatically carried out, you can make a request for such assessment.

When a Special Guardianship Order assessment is carried out, there will be consideration of the following as part of the assessment :-

• The developmental needs of the child;

• The parenting capacity of the special guardian or prospective special guardian, as the case may be;

• The family and environmental factors that have shaped the life of the child;

• What the life of the child might be like with the prospective Special Guardian(s);

• Any previous assessments undertaken in relation to the child or prospective Special Guardian(s)

• The needs of the prospective Special Guardian(s) and of that person’s family;

• Where it appears to the local authority that there is a pre-existing relationship between prospective Special Guardian(s) and the parent of the child, the likely impact of the special guardianship order on the relationships between that person, that child and that parent.

There will also be assessment of what financial support and other services that may be available to the child(ren) and the prospective Special Guardian(s). This will cover a multitude of matters from looking at what additional courses/ training could be provided, to what furniture or respite care could be provided.  The Local Authority will usually consider the prospective Special Guardian(s) financial means, including their financial resources (wages/income) and outgoings (bills/financial commitments) and the financial needs of the child(ren).

The assessment must then be provided in written form for all to consider.

It is worth nothing that if a child was not/is not under the care of the Local Authority when the assessment is undertaken, there is no automatic right to an assessment of the Special Guardian Support services, but you can make a request for a support assessment.

Effect of a Special Guardianship Order

As stated above, if a Special Guardianship Order is made then it provides the Special Guardian(s) with parental responsibility for the child)ren) subject to the Order. This parental responsibility has overriding power over any birth parent(s) parental responsibility.

The Order also gives the Special Guardian(s) a right to have local authority support services, including financial support.

The making of a Special Guardianship Order also has the effect that it discharges any other existing Care Order or related Contact Order.

A Special Guardianship Order can be varied or discharged by the Court or by application by the Special Guardian, parent or child. This is usually the case when there has been s significant change in circumstances.

Under the Special Guardianship Regulations 2005, provision 3(2) a local authority can provide assistance in cash to a Special Guardian, for example to provide respite care or help with costs associated with facilitating contacts. This should be provided regardless of financial means.

Costs involved with the making an application for a Special Guardianship Order

Under  the Special Guardianship Regulations 2005 provision 6(2) (c) where the Local Authority support the making of a Special Guardianship Order over a prospective carer, they can contribute to any legal costs including court fees.  

If you would like further information, advice or support with applying for a Special Guardianship Order, please do not hesitate to contact the Family team on 0116 212 1000.

 

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