Special Guardianship Orders

Special Guardianship was developed to give children greater security than long term fostering, but without the absolute legal severance from the birth family that stems from an Adoption Order. This was seen as particularly important for older children who did not wish to make the absolute break with their family.

The Adoption and Children Act 2002 provides the legal framework for Special Guardianship under the Children Act 1989.

The Special Guardianship Regulations 2005 were implemented in December 2005 and amended with The Special Guardianship (Amendment) Regulations 2016 - thereby ensuring parity of assessment requirements with other Orders.

This legislation is supported by the DfE Special Guardianship Guidance (2017) produced by the Department for Education.

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 see the Supporting the Education and Promoting the Achievement of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.

This is to

• Ensure Special Guardians will have Parental Responsibility for the child which then give the carer clear responsibility for all aspects of caring for the child and for taking decisions to do with their upbringing. Although birth parents retain their legal Parental Responsibility, the special guardian only has to consult with them about these decisions in exceptional circumstances;
• The child is no longer Looked After by the Local Authority;
• Provide a firm foundation on which to build a lifelong permanent relationship between the child and their carer;
• Be legally secure;
• Preserve the basic link between the children and their birth family;
• Be supported by access to a full range of support services including where appropriate financial support.

A Special Guardianship Order (SGO) is an order appointing a person or persons to be a child's special guardian. Applications may be made by an individual or jointly by two or more people.

Joint applicants do not need to be married. Special Guardians must be 18 or over. Parents of a child may not become that child's special guardian.

A court may make a SGO in respect of a child in the application of:

• Any guardian of the child;
• 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 holds a Residence Orders / Child Arrangement Order with respect to the child or who has the consent of all those in whose favour a Residence Order / Child Arrangement Order is in force;
• Anyone with whom the child has lived for three of out the last five years;
• Where the child is in the care of a local authority, any person who has consent of the local authority;
• Anyone who has the consent of all those with parental responsibility for the child;
• Any person, including the child, who has the leave of the court to apply.
  
  The Court may also make a Special Guardianship Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.
  
  Any person who wishes to apply for a special guardianship order must give three months' written notice to the local authority of their intention to apply. The only exception to this is where a person has the leave of the court to make a competing application for a Special Guardianship Order where an application for an Adoption Order has already been made.

_{[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 Court can make an SGO in any family proceedings concerning the welfare of a child if they think an order should be made. This applies even where no application has been made and includes adoption proceedings. When considering whether to make a SGO, the child's welfare is the Court's paramount consideration and the welfare checklist in Section 1 of the Children's Act 1989 applies.

Any person who wishes to apply for a SGO must give 3 months written notice to the Local Authority of their intention to apply.

The exception to this is where a person has leave of the Court to make a competing application for a SGO where an application for an Adoption Order has already been made. This is to prevent the competing application delaying the Adoption Order hearing.

In the majority of cases, SGO applications will be made in respect of Looked After children, particularly older children. Applicants will normally be their family / friends carers or mainstream foster carers.

Progress towards achieving permanence for LAC is ongoing and monitored through supervision and statutory reviews (refer to Permanence for Children Procedure).

Special Guardianship must be considered as part of this process.

At the earliest stage when any application for Special Guardianship is being considered, endorsement must be sought from a District Manager / Head of Service.

When there is any proposal for financial support this must be authorised by the Assistant Director (Staying Safe) and a decision in principle should be sought at the earliest stage.

Best Practice Guidance on Special Guardianship (Public Law Working Group, 2021) notes that where there are safeguarding or welfare concerns about a child, the statutory guidance is clear about  the importance of local authorities engaging with the parents and the wider family network at an early stage through a Family Group Conference: the FGC should be used to share information, resolve possible disputes and conflicts with the local authority and to address long - standing tensions within the family. The pre-proceedings phase of the Public Law Outline (PLO) provides an important opportunity to engage the parents and family members in discussions about the future care of the child.

In assessing the appropriateness of any potential applicants, the local authority must assess whether any option would not be consistent with the child’s welfare, or, would not be reasonably practicable.

Whilst Relaunching the PLO made clear the importance of aiming to meet the statutory requirement of completing each public law case within 26 weeks, Timetabling and Timescale for Full Family and Friends Assessments (Family Justice Council) provides that:

‘This document serves to remind social workers, Guardians, lawyers, and the judiciary regarding the process required to be incorporated into any timescales for a full Family and Friends Assessment to be done to an appropriate standard, so as to provide for a sufficient (usually 12 week) assessment period to undertake the complex requirements inherent in any full assessment. Delay for children is always to be avoided, but nothing in the Public Law Outline, primary legislation, or jurisprudence requires corners to be cut in coming to a safe evidenced conclusion, that places the welfare of the child at the heart of any recommendation or decision’.

See also: Care and Supervision Proceedings and the Public Law Outline Procedure.

Assessments should be robust, evidence-based and child-focussed. Before the assessment, the prospective carers should be provided with full information about:

1. What the assessment will involve;
2. The time and commitment needed from them;
3. A letter should be sent explaining the expectations of the carers and what they should think about during the process.

The assessment should carefully balance the strengths families may have; consider any existing relationships they have with the child; explore their parenting experience;  the significance for the child of remaining within their family and network, against the carers’ capacity to meet the assessed needs and the challenges that a particular child may bring on a long-term basis, (including  any additional needs as a result of significant harm or neglect they may have experienced), and until their 18th birthday.

In recognising that each situation will be looked at on a case-by-case basis, an interim placement with the proposed special guardians may be appropriately considered to both establish relationships between the child and special guardians and confirm the applicants’ ability to carry out their parenting responsibilities, meet the needs of the child and promote their welfare and best interests.

The child’s Looked After Review should make a recommendation regarding the outcome of the Care proceedings for the child’s Care Plan and this should be approved by the Designated Manager (Special Guardianship).

Final recommendations should not be made until the essential tasks and activities for a full Special Guardianship Order assessment are completed.

A Supervision Order should not be sought as a means to ensure support and services are provided by the local authority (or as a form of ‘safety net’ for a child). Where considered necessary, the report should detail the reasons why such an Order is required. 

The prospective carers should have time to read the assessment report before it is filed and comment on the report.

Following the filing of the report, the prospective carers should be given the opportunity to seek independent advice and legal advice to understand fully the implications of any Orders made and if need be, make applications of their own.

A Special Guardianship Support Plan will need to be provided around the time of filing the Special Guardianship Order report and its recommendation, detailing the support to be provided to the carers and the child and include contact for the child with their birth parents. The potential applicants should be able to seek legal advice about the Support Plan.

The rules stipulate that the Court cannot make a Special Guardianship Order without a report.

The local Authority must investigate and prepare a report for the Court (or arrange for someone else to prepare the report on their behalf).

The report must cover areas described in Regulation 21 (Special Guardianship Regulations 2005) and the schedule (see Appendix 1: Special Guardianship Report) together with the enhanced assessment and reporting requirements set out in the Special Guardianship (Amendment) Regulations 2016:

• 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);
• An assessment of the prospective Special Guardian's parenting capacity including:
  1. 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;
  2. 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;
  3. 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 (see Section 10, Special Guardianship Support Services) of the child, parents and the prospective special guardian.

Social workers preparing reports to the court must be "suitably qualified and experienced" (Para 106 Special Guardianship Guidance). 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).

The local authority must, if they decide not to carry out an assessment, give the person/s applying notice of the decision in writing (including the reasons for it) and must allow him/her/them a reasonable opportunity to make representations in relation to that decision.

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

• The Special Guardian (or any of them, if there are more than one);
• The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
• Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
• With the leave of the court:
  • Any parent or guardian of the child;
  • Any step-parent who has Parental Responsibility;
  • Anyone who had (but no longer has) 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.

The social worker making the application must consider the need for support services.

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.

NOTE: Financial Support is fully covered in the Financial Support Procedure. The Assistant Director Staying Safe must authorise any financial support.

Other forms of support should be considered such as help with contact and therapeutic help.

It is important to link the child and Special Guardians to mainstream services where possible such as mediation services and CYPMHS.

It may be appropriate for the child's social workers and/or the Fostering Team Social Worker to remain involved for a short period after the making of the order to provide social work support.

If necessary, the Local Authority can contract with other Local Authority or independent registered providers to provide special guardianship support services.

Assessments for special guardianship support services should follow the guidance set out in, and use the domains of, the Assessment Framework, recognising that the context is different from that for birth families. This takes into account the child’s developmental needs, the parenting capacity of the special guardian and consideration of the family and environmental factors that together help to explain the child’s life so far and what life might be like with the new family.

Consultation with the relevant Integrated Care Board and Local Educations Authority should form part of the assessment process, and the person whose needs are being assessed should be interviewed unless the assessment relates only to information and advice or unless it is not appropriate to interview a child. In this case the child’s actual or prospective special guardian may be interviewed.

The assessment process should be flexible and should not delay provision of appropriate services.

After the assessment has been undertaken the local authority is required to prepare a written report of the assessment.

The Support Plan must be shared with the prospective SG's before the matter is considered by Court and the prospective SG's should be given an opportunity to respond to this. The local authority may decide to alter the plan, following representation from the prospective Special Guardians. If the local authority decides not to change the plan, they must give the prospective Special Guardians the reasons for this.

The regulations state that the responsibility for special guardianship support remains with the Local Authority where the child was last Looked After for 3 years after the making of the order.

When the three years has expired the Local Authority where the special guardian lives become responsible for assessing and providing support services.

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed. This Plan should be based upon the lived experience of the child and the lived experience of the prospective Special Guardian.

Other agencies, such as education and health, may need to be consulted about the contents of the Plan. 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 see the 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.

The Plan should be written in such a way that everyone affected can understand and set out:

1. The services to be provided;
2. The objectives and criteria for success;
3. Timescales for provision;
4. Procedures for review;
5. A named person to monitor the provision of services in accordance with the Plan;
6. Contact Arrangements between the child and parent(s) which should include - Type of contact, frequency and duration, who is responsible for making the arrangements of contact, what practical arrangements need to be provided to facilitate contact and what professional support and assistance, if any, will be provided to the special guardian;
7. Any harm that the child may have suffered and the capacity of the prospective Special Guardian to enable the child’s developmental recovery from that harm.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).

Once the necessary approval has been obtained, the social worker must send the proposed plan to the person requesting support, and allow 28 days for that person to make representations about the proposed plan. The social worker should also give information to the person concerned about who to contact to obtain independent advice and advocacy.

Where representations are received, they should be referred to the Designated Manager (Special Guardianship Support) to decide whether to amend or confirm the Plan. The allocated social worker must then write to the person concerned setting out the final Plan. A final notice of the authority’s decision must then be given to include the following:

1. Details of the plan and the name of the person nominated to monitor the provision of services;
2. Where financial support is to be provided:
   1. The method of determination of the amount of financial support;
   2. The amount, frequency, start date and period of any payment in instalments;
   3. When any single payment is to be made;
   4. Details of any conditions and the date by which those conditions are to be met;
   5. The arrangements and procedure for review, variation and termination of financial support;
   6. The responsibility of the authority in relation to reviews and of the Special Guardian in respect of any conditions.

Special Guardianship Support Services (other than financial support payable periodically) must be reviewed:

• If there is any change of circumstances affecting the support;
• At such stage of the implementation of the plan as is considered most appropriate;
• In any event at least annually.

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 may be 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.

Best Practice Guidance (2021) (Public Law Working Group) provides that if the proposed carers appear to be viable, time may be needed for Children and Families Across Borders (CFAB) to carry out an assessment. 

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.

Appendix 1: Special Guardianship Report.

Appendix 2: Special Guardianship Support Plan.

Appendix 3: Explanatory Memorandum to Special Guardianship (Amendment) Regulations (2016) with the Statutory Instrument.

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.