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.

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. In addition, some children subject to a Special Guardianship Order will be 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).

Special Guardians will have Parental Responsibility for the child and, whilst this is 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 Child in Care 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.

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 and must not be a parent of the child in question.

Subject to giving notice to the relevant local authority, the following people are entitled to apply for a Special Guardianship Order without needing to obtain the leave of the court:

• Any guardian of the child;
• Where the child is subject of a Care Order or an Interim 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];
• Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
• Any person who has the consent of each person named in a Child Arrangements Order as a person with whom the child is to live;
• Anyone with whom the child has lived for a period of at least 3 years (which need not be continuous, but must not have begun more than 5 years before, or ended more than 3 months before, the making of the application);
• Any person 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 to the exclusion of anyone else who might have Parental Responsibility (apart from another Special Guardian).

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 everyone with Parental Responsibility or the leave of the court, for example:

• Causing the child to be known by a different surname; or
• Removing the child from the United Kingdom for longer than 3 months;
• The sterilisation of child.

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 Child in Care, 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 period proposes to make a SGO of its own initiative within existing proceedings. In that case, the court has to order the local authority to file the report, and will set a timescale for this, but the 3 months notice period does not apply.

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, it 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 Clinical Commissioning Group (CCG) 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.
• There should also be an assessment of 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). See: Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance, Special Guardianship - Matters to be Dealt with in Report for the Court.

(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 Placement Order Applications and Adoption/Special Guardianship 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 is to live;
• 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 to make the proposed application).

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.

Under the Adoption and Children Act 2002, the local authority must make arrangements for the provision for a range of special guardianship support services. Local authorities are required to make a range of support services available in their area to meet the needs of people affected by special guardianship.

Special Guardianship support services are defined as:

• Financial support (see Section 10, Financial Support);
• Services to enable groups of children for whom a Special Guardianship Order is in force (or in respect of whom such an Order is being formally considered), special guardians, prospective special guardians, and parents of the child to discuss matters relating to special guardianship;
• Assistance, including mediation services, in relation to contact between the child and their parents or relatives or any other person with whom the child has a relationship that the local authority considers to be beneficial to the welfare of the child;
• Therapeutic services for the child;
• Assistance for the purpose of ensuring the continuance of the relationship between the child and their special guardian or prospective special guardian, including training for the special guardian or prospective special guardian to meet any special needs of the child; respite care; and mediation in relation to matters relating to Special Guardianship Orders; and
• Counselling, advice and information.

Where the support provided includes respite care requiring the provision of accommodation, the child must be in Care for the duration of the period of respite care to ensure that appropriate safeguards are in place.

Special Guardianship Support will be subject to the approval of the Placement Sufficiency Oversight and Resource Panel or, in the case of a Child in Care, the Permanence Panel.

The provision of any services (other than counselling, advice and information) may include cash assistance (for example to pay a babysitter to facilitate a break etc.). When cash is provided in this way it should not be means tested as it is being given as part of a service rather than as financial support.

Support services should not be seen in isolation from mainstream services. It is vital to ensure that children and families involved in Special Guardianship Arrangements are assisted in accessing mainstream services and are aware of their entitlements to tax credits and social security benefits.

The following people must receive an assessment at their request, in cases involving Children in Care or Children who were in Care immediately prior to the making of a special guardianship order (Regulation 11):

• The child;
• The special guardian or prospective special guardian;
• A parent.

The following people may be offered an assessment of their need for Special Guardianship support services:

• The child (where not a Child in Care);
• The Special Guardian or prospective Special Guardian (where child is not a Child in Care);
• A parent (where the child is not a Child in Care);
• A child of a Special Guardian (whether the Special Guardianship child is a Child in Care or not);
• Any person whom the local authority considers to have a significant and ongoing relationship with a child (whether the child is a Child in Care or not).

In addition to the support provided by local authorities, the Adoption and Special Guardianship Support Fundin England also covers therapeutic support for children, living in England, who were previously in care immediately before the making of a Special Guardianship Order.

Based on the assessment of needs, local authorities can apply for funding from the Adoption and Special Guardianship Support Fund.

Government guidance says that special guardianship arrangements should not fail just because of financial problems. Financial support should be paid to help secure a suitable arrangement where this is not possible because of a financial obstacle.

Each case must be assessed on its own facts. It would not be lawful, for example, to pay a flat rate to all Special Guardians, or a fixed percentage of fostering allowance.

The local authority must take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of becoming a Special Guardian of a child. Payment of a Special Guardianship Allowance cannot duplicate any other payment available to the Special Guardian.

Special Guardians must be helped to access any benefits to which they are entitled; this will usually include child benefit and tax credits.

The Special Guardian's means will normally be considered when ongoing financial support is being considered.

Following a decision at either PSORP or Permanence Panel a request for an assessment will be sent to Finance.

Once the means assessment has been carried out, the Finance Officer should send written notification of the outcome to the relevant social worker and the Special Guardian.

Finance will notify the Special Guardian of:

• Whether financial support is be paid in regular instalments and if so, the frequency of payment;
• The amount of financial support;
• The period for which the financial support is to be paid;
• When payment will commence;
• Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
• Arrangements and procedure for review and termination.

The Special Guardian will sign an agreement to accept the terms of the payment which will be returned and retained by Finance.

Means may be disregarded in relation to:

• The initial costs of accommodating a child who has been a Child in Care;
• Recurring travel costs in contact arrangements;
• Any special care requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously in Care;
• Where considering an element of remuneration in financial support payments to ex-foster carers.

Where the Special Guardians were previously the child's foster carers, the local authority can maintain the fostering allowance for a transitional period of 2 years but with discretion to extend if necessary.

The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a court in respect of a child who is a Child in Care where the local authority support the making of the Special Guardianship Order or an application is made to vary or discharge a Special Guardianship Order in respect of that child.

Local authorities are not expected to meet the legal costs of a Special Guardianship Order where they oppose an application in respect of a child they previously in Care or in a non-looked after case. Local authorities may wish to advise prospective special guardians in these circumstances that they may be able to obtain help with legal costs from the Legal Aid Agency.

Review of Financial Support Paid Periodically

Where financial support is paid periodically the local authority must review this:

• On receipt of the annual statement received from the special guardian;
• If there is any relevant change of circumstances that the special guardian agreed to notify, or any breach of a condition comes to the local authority's notice;
• At any (other) stage in the implementation of the plan that the local authority considers appropriate.

The procedure for assessment set out for first assessment for financial support (see above) applies equally to a review of financial support. If the local authority proposes, as a result of the review, to reduce or terminate financial support or revise the plan, before making that decision the local authority must give the person an opportunity to make representations. For that purpose it must give the person notice of the proposed decision and the time allowed for making representations, but the local authority may suspend financial support pending that decision if they think it appropriate.

The notice must contain the same information as the notification of the outcome of the first assessment.

The local authority must, having regard to the review, and after considering any representations received within the period specified in the notice, then decide whether to vary or terminate payment of the financial support or whether to seek to recover all or part of any financial support that has been paid; and where appropriate, revise the plan.

The local authority must give the person notice of their decision including the reasons for it and, if applicable, the revised plan.

Where Special Guardians are in receipt of financial support, Finance will write annually to them with a Financial Assessment Review Form to be completed, together with a request for information about any change in circumstances for the Special Guardian or the child.

If any change in financial support is considered appropriate, the recommended change should be forwarded to the PSORP or Permanence Panel for a decision.

Where Special Guardians do not return the Assessment Review Forms within the required time scale, Finance will terminate payments. Any re-instatement of payments will need the agreement of PSORP or the Permanence Panel whichever is relevant.

Where a person has an urgent need of a service, the assessment process should not delay provision and arrangements can be made for support to be provided as a matter of urgency in appropriate cases. The approval of the Service Manager will still be required. The local authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.

Time spent under a Special Guardianship Order is relevant when considering the child's entitlement to leaving care services. Section 24(2) of the act defines "a person qualifying for advice and assistance". This includes a young person aged 16 to 20 who immediately before becoming subject to a Special Guardianship Order was a Child in Care.

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.