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9.1 Applications for Special Guardianship Orders

RELEVANT GUIDANCE

Adoption Support Fund

Special Guardianship Guidance - Statutory Guidance for Local Authorities on the Special Guardianship Regulations 2005 (as amended by the Special Guardianship (Amendment) Regulations 2016)

RELATED CHAPTER

See also Special Guardianship Order Support other than Allowance Procedure.

AMENDMENT

The chapter was updated in June 2017 to include details of the Adoption Support Fund which now also covers therapeutic support for children, living in England, who were in care immediately before the making of a Special Guardianship Order - see Section 9, Special Guardianship Support for details.


Contents

  1. Introduction
  2. Who may Apply?
  3. Parental Responsibility
  4. The Circumstances in which a Special Guardianship Order may be made
  5. Planning Meeting
  6. Approval of Special Guardianship for Children in Care
  7. Report to the Court
  8. Discharge of Special Guardianship Order
  9. Special Guardianship Support
  10. Financial Support
  11. Urgent Cases
  12. Leaving Care Provision
  13. Special Guardian Duty on the Death of the Child


1. Introduction

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.

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 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.


2. Who may Apply?

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 without having 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);
  • Anyone who is named in a Child Arrangements Order as a person with whom the child is to live;
  • Anyone 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 three out of the last five years, providing the child has not ceased to live with the proposed applicant more than 3 months before the making of the application;
  • Anyone who has the consent of all those with Parental Responsibility for the child;
  • Anyone, including the child, who has the leave of the court to apply;
  • Any other person (including the child and other than a parent) may apply for a Special Guardianship Order if he has 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.


3. Parental Responsibility

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 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 sterilisation of a child.


4. The Circumstances in which a Special Guardianship Order may be made

The Court may 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 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 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.


5. Planning Meeting

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);
  • 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.
  • There should also be an assessment of the proposed contact arrangements and the support needs (See Section 9, Special Guardianship Support) of the child, parents and the prospective special guardian.

The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service and other statutory checks undertaken for the assessment.


6. Approval of Special Guardianship for Children in Care

If the child is a Child in Care, and the application has been agreed as part of the child's Care Plan, the assessments will usually have been undertaken and the outcomes agreed as part of the permanence planning for the child, in which case there will be no need to hold a planning meeting.

Special Guardianship as an outcome for a Child in Care must be approved by the Head of Service.


7. Report for the Court

The social worker or social workers preparing the Court report should be suitably qualified and experienced.

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

See Court Reports in Placement Orders/Adoption Orders/Special Guardianship Orders Guidance for what is required to be included in the report.


8. Discharge of Special Guardianship Order

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.


9. Special Guardianship Support

Under the Adoption and Children Act 2002 the local authority must make arrangements for the provision of special guardianship support services (section 14F).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:

  • Counselling, advice and information section;
  • Such other services as are prescribed.

The following services are prescribed under the regulations and guidance as Special Guardianship support services:

  • Financial support (reg 3(1)(a);
  • Assistance including mediation in relation to contact between the child to facilitate contact (reg 3(1)(c);
  • Therapeutic services for the child (reg 3(1)(d)).

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 entitlement to social security benefits and tax credits as appropriate.

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).

See Special Guardianship Order Support other than Allowance Procedure for further information.

In addition to the support provided by local authorities, the Adoption Support Fund in 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 Support Fund.


10. Financial Support

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

The local authority must also 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 Special Guardianship Allowance cannot duplicate any other payment available to the Special Guardian.

Where the child/young person is not a Child in Care, a discussion must take place with the Head of Service prior to a financial assessment for ongoing financial support being undertaken. The Special Guardian's means will be considered when ongoing financial support is being considered. A Financial Assessment Form should be obtained from the Group Manager Achieving Permanence for the (proposed) Special Guardians to complete. When completed this should be passed to the Finance Officer responsible for carrying out means assessments.

Once the financial assessment has been carried out, the Finance Section will send written notification of the outcome to the Group Manager Achieving Permanence for approval.

A letter will then be sent to the Special Guardian setting out the amount of financial support agreed and information in relation to the following:
  • 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.

Where the Special Guardians were previously the child's foster carers - the local authority can maintain the fostering allowance for a transitional period of two 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 the authority support the making of the Special Guardianship Order.

Where Special Guardians are in receipt of financial support, the finance department 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.

The completed Assessment Form should be forwarded to the Finance Officer for consideration. If any change in financial support is considered appropriate, the agreement of the Group Manager Achieving Permanence will be sought. Where a change is approved, the Special Guardian should be notified in writing of the change, together with the reasons for the change.

Where Special Guardians do not return the Assessment Review Forms within the required time scale, a reminder letter will be sent, giving 28 days notice of the suspension of payments if the information requested is not received.


11. Urgent Cases

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 Group Manager Achieving Permanence 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.


12. Leaving Care Provision

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.


13. Special Guardian Duty on the Death of the Child

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; and
  • Each guardian of the child.

End