Applications for Special Guardianship Orders

Special Guardianship offers an option for children needing permanent care outside their birth family. It can offer greater security without absolute severance from the birth family as in adoption.

It will address the needs of a significant group of children, mainly older, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.

It will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.

A Special Guardianship Order offers greater stability and legal security to a placement than a Child Arrangements Order.

Children subject to a Special Guardianship Order are eligible as previously Looked After Children for additional support with their education (Sections 20(4) and 20A(4) of the Children and Young Persons Act 2008). For further information please go to Supporting the Education and Promoting the Achievement of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.

Special Guardians will have Parental Responsibility for the child and, whilst this will be shared with the child's parents, the Special Guardian will have the ability to exercise this responsibility without seeking permission from the parents.

A Special Guardianship Order made in relation to a Looked After Child will replace the Care Order and the Local Authority will no longer have Parental Responsibility.

A Care Order, however, will not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility will be restricted as the local authority will have primary responsibility for decision-making under the Care Order.

For further details about the Special Guardianship as a permanence option for Looked After Children, see Permanence Planning Guidance.

People thinking about becoming special guardians will be provided with clear, user-friendly information to help them make informed choices. This should include information on support available and how this is reviewed.

Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over.

The following persons may apply:

• Any guardian of the child;
• Where the child is subject of a Care Order, any person who has the consent of the Local Authority;
• A local authority foster carer who is a relative of the child or with whom the child has lived for one year immediately preceding the application (even if the Local Authority does not consent) [1];
• Anyone who is named in a Child Arrangements Order as a person with whom the child is to live;
• Anyone with whom the child has lived for three out of the last five years;
• A relative with whom the child has lived for a period of at least one year immediately preceding the application;
• Anyone who has the consent of all those with Parental Responsibility for the child;
• Any other person (including the child and other than a parent) may apply for a Special Guardianship Order if they have obtained the leave of the court to make the application.

The parents of a child may not apply to become their own child's Special Guardians.

_{[1] A person who is, or was at any time within the last 6 months, a local authority foster parent of a child may not apply for leave to apply for an SGO unless (s)he has the consent of the local authority, or (s)he is a relative of the child or the child has lived with him for at least one year preceding the application.}

The Special Guardian will have Parental Responsibility for the child and will have clear responsibility for the day-to-day decisions about caring for the child.

The child's parents will continue to hold Parental Responsibility but their exercise of it will be limited. The parents will, however, retain the right to consent or not to the child's adoption or placement for adoption.

In addition there are certain steps in a child's life which require the consent of every-one with Parental Responsibility, for example:

• The change of surname of the child;
• The removal of the child from the United Kingdom for longer than three months.

The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child and following an assessment by the local authority. This applies even where no application has been made and includes adoption proceedings.

Any person making an application for a Special Guardianship Order must give 3 months' written notice to their local authority of their intention to apply. In relation to a Looked After Child, the notice will go to the local authority looking after the child. In all other cases, the notice will be sent to the local authority for the area where the applicant resides. The local authority receiving the notice will then have a duty to provide a report to the Court.

The only exception to the requirement for 3 months' notice is where the Court has granted leave to make an application and waived the notice period.

Where the local authority has received notice from an applicant or a request for a report from the Court, it should send written information about the steps it proposes to take in preparing the report to the prospective Special Guardian and the parents of the child in question. This should include information about Special Guardianship support services and how to request an assessment of needs for support.

Once notice has been received that an application for Special Guardianship is to be made, the notice should be passed to the allocated social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker.

The allocated social worker should arrange a planning meeting as soon as practicable after the notice is received. The planning meeting should clarify the steps to be taken, who will carry out the necessary assessments and who will contribute to the report for the Court. Court timescales will need to be clarified.

The social worker or social workers preparing the Court report should be suitably qualified and experienced. There are no specific requirements as to the level of qualification or experience required and it will be for the manager of the relevant social work team to ensure that the allocated worker is competent to write the report.

In all cases there will need to be:

An assessment of the current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child’s parents, relatives or any other person the local authority considers relevant).  Where the assessment identifies that the child requires services from an agency other than Children’s Social Care, the social worker should consult with the relevant Integrated Care Board (ICB) or Local Education Authority;

An assessment of the prospective Special Guardian's parenting capacity including:

1. Their medical history; DBS checks, references and other statutory checks; any previous assessment undertaken in respect of the prospective special guardian; any likely impact the Special Guardianship Order may have on relationships between the child and the parent;
2. Their understanding of, and ability to meet, the child’s current and likely future needs, particularly any needs the child may have arising from harm that the child has suffered;
3. Their understanding of, and ability to protect the child from, any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
4. Their ability and suitability to bring up the child until the child reaches the age of eighteen.

The proposed contact arrangements and the support needs of the child, parents /those who have parental responsibility  and the prospective special guardian.

The social worker or social workers preparing the Court report should be suitably qualified and experienced. All assessments/suitability reports must comply with the schedule set out in regulation 21 of the Special Guardianship Regulations 2005 (as amended 2016).

Where local authorities commission assessments from independent social workers, it is essential that there is clarity about the standard of the assessment commissioned before it is filed.

Once completed, the Court Report should be submitted by the author(s) to their line manager(s) for approval.

See Court Reports in Adoption Guidance for what is required to be included in the report.

A Special Guardianship Order can be varied or discharged on the application of:

• The Special Guardian;
• The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
• Anyone named in a Child Arrangements Order as a person with whom the child was to live before the Special Guardianship Order was made;
  
  or
  
  
• With the leave of the court:
  • The child's parents or guardians;
  • Any step parent who has Parental Responsibility;
  • Anyone who had Parental Responsibility immediately before the Special Guardianship Order was made;
  • The child (if the court is satisfied that the child has sufficient understanding).

Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made.

The court may during any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order in the absence of an application.

See Special Guardianship Support Services Policy.

As a previously looked after child, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child’s school. For further information please go to Supporting the Education and Promoting the Achievement of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.

From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangements Order, who struggle to get a school place during the year, will be supported in finding one.

Identifying potential long-term carers for the child within the family may include those who are either resident in, or nationals in, overseas countries. Special guardianship can be considered in placing a child outside of the jurisdiction. Consideration must be given to how assessments are carried out in a legally compliant and culturally relevant manner. Thought should be given to:

• The status of special guardianship in that country and other legal matters;
• The relevant matters associated with the care of children in that country: permanent, stable and secure family life; safeguarding; education and health; and specifically how all of these relate to the personal living circumstances of the host family and their need for support services, including financial and therapeutic support and contact between family members including those resident in the UK;
• Contacting local agencies in that country for guidance on the support that maybe offered.

In advance of the child being placed, a plan will need to be agreed about how the placement will be supported and what the contingency arrangements are for the child.

Note:

1. Contracting states to the 1996 Hague Convention will be better placed to offer co-operation and support than some other countries (see HCCH);
2. Social workers should carefully explore the local authority's ability to provide financial support particularly after an initial 3 years. when 'out-of-area placements' are abroad.

See also: Children and Families Across Borders (CFAB).

If the child with respect to whom a Special Guardianship Order is in force dies, the Special Guardian must take reasonable steps to give notice of that fact to:

• Each parent of the child with Parental Responsibility;
• Each guardian of the child;
• The relevant local authority if the child was previously a looked after child.

The following suggested good practice is taken from the Local Government and Social Care Ombudsman report Firm Foundations: Complaints about Council Support and Advice for Special Guardians (May 2018).

The following is not an exhaustive list but sets out some of the positive steps councils can take:

• Give early, clear and unambiguous advice to people who are considering becoming special guardians. Consider how this can:
  • Explain what is special guardianship and what this means for parental responsibility, legal security and stability;
  • Explain the council’s role and that of the court;
  • Set out who can apply to be a special guardian and what alternatives could be more suitable;
  • Make the process of applying to be a special guardian clear, including the role of the council in writing a report to court;
  • Explain the assessment process before becoming a special guardian. Explain that applicants may need to complete some training.
• Be as clear as possible about the support that might be available and how the council will assess the applicant’s support needs;
• Be as unambiguous as possible about the fixed term duration of support and what it is likely to be used for;
• Back up verbal advice and guidance in writing wherever possible, particularly where this may have long term consequences;
• Manage expectations early on, for example where special guardians expect ongoing support or help with major personal expenditure;
• Be as clear as possible with applicants that any support may be time limited;
• Develop advice for social workers involved in supporting potential and actual special guardians. This could include:
  • A flow chart showing responsibilities at key stages such as suitability assessment, financial assessment, permanence panel and court;
  • A checklist of things to cover at first assessment visit (for example explaining the process and financial situation);
  • A summary of the SGO assessment process including child information (for example attachment issues and any early neglect or trauma), carers information (for example current relationship and stability).
• Keep clear and transparent records of contact with special guardians. This is always important, particularly where guardians will probably be supported by several different social workers and other officers over several years;
• Write support plans that are clear, in plain English and set actions that are as specific, measurable and achievable as possible so the council and guardian can review progress;
• Make sure support plans:
  • Are shared, discussed and agreed with special guardians, and this is well documented;
  • Are written so that they are easy to evaluate and keep under review. It should be easy for the council and guardian to decide whether all the support has been provided;
  • Are regularly reviewed and kept up to date. Make sure plans continue to meet the child’s needs as they change;
  • Set out the approach to calculating special guardianship allowance. Explain this at the earliest stage as possible, making clear this will be reviewed and depend on evidence of continuing needs;
  • Keep the best interests of the child at the forefront of decision making.