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10.1 Applications for Special Guardianship Orders

RELEVANT NATIONAL 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)

Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)

The Designated Teacher for  Looked After and Previously Looked After Children: Statutory Guidance on their Roles and Responsibilities Feb 2017

RELATED CHAPTER

See also Special Guardianship Order Support other than Allowance Procedure.

AMENDMENT

This chapter was updated in June 2019 in line with the Children and Social Work Act 2017 and revised statutory guidance which require schools, through the Designated Teacher to provide support to previously Looked After Children

A Previously Looked After Child is one who is no longer looked after in England and Wales because they are the subject of an Adoption, Special Guardianship or Child Arrangements Order which includes arrangements relating to with whom the child is to live, or when the child is to live with any person, or has been adopted from ‘state care’ outside England and Wales.

It has also been updated to reflect the Local Government and Social Care Ombudsman good practice points to follow when working with Special Guardians.  A link to the full report ‘Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)’ was added into the Relevant National Guidance section of this chapter.


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. Variation or Discharge of Special Guardianship Order
  9. Special Guardianship Support Services
  10. Financial Support
  11. Urgent Cases
  12. Leaving Care Provision
  13. Special Guardian Duty on the Death of the Child

    Appendix 1: Good Practice: Getting it Right First Time


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.

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 Education of Children in Care 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 with respect to a chid who is the subject of a Care Order or an order for contact to a child in care discharges those orders.

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.  


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 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 first seek the leave of the court:

  • Any guardian of the child;
  • 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 3 out of the last 5 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;
  • A relative with whom the child has lived for a period of at least 1 year immediately preceding the application;
  • Where the child is in the care of a local authority, any person who has the consent of the local authority;
  • 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.


3. Parental Responsibility

The Special Guardian will have Parental Responsibility for the child and, subject to any other order in force, 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.

The court may, at the time of making the Special Guardianship Order, give leave for the child to be known by a new surname and/or to be removed from the United Kingdom for longer than three months, either generally or for specified purposes.


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 Services) 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.

The court is unable to make a Special Guardianship Order unless and until it has received a Special Guardianship Report; however, where the bulk of the information required by s.14A(8) is already before the court in another format, the local authority is not required to start from scratch. Instead, the local authority should be directed to file a report, which will fulfil the requirements terms of s.14A(8) by providing any missing information and by setting out the remaining information in the form of cross-references to the information already before the court in other reports.

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


8. Variation or Discharge of Special Guardianship Order

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;
  • Anyone named in a Child Arrangements Order as a person with whom the child is to live;

    or
  • With the leave of the court:
    • The child's parents or guardians 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.


9. Special Guardianship Support Services

The local authority must make arrangements for the provision for a range of support services 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 his/her 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 Looked After 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 Designated Manager (Special Guardianship Support).

The provision of any services (other than counselling, advice and information) may include cash assistance (for example cash 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 and it is important to ensure that families are assisted in accessing mainstream services and are aware of their entitlements to tax credits and social security benefits.

Where the child was previously Looked After, responsibility for the assessment and provision of services for the child, the Special Guardian and any children of the Special Guardian all remain the responsibility of the local authority where the child was last looked after for three years after the making of a Special Guardianship Order. Thereafter the local authority where the Special Guardian lives will be responsible for assessing and providing support services.

If a child is not Looked After, the local authority where the Special Guardian lives has the responsibility for assessing and providing support services. This includes assessment and any support that is needed by the child’s relatives who may live elsewhere. If the special guardian and his/her family move, then the responsibility passes to the new local authority. The local authority where the special guardian previously lived should cooperate as needed to ensure a smooth transition for the child.

Ongoing financial support (ie that paid on a regular basis), which was agreed before the Special Guardianship Order was made, remains the responsibility of the local authority that agreed it so long as the family qualify  for payments.

Local authorities may also provide services to people outside their area in other circumstances where the authority considers it appropriate. For example, transitional arrangements by the originating authority where a family move to allow time for the new authority to review the family’s existing plan without a break in service provision.

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

Government guidance is clear 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.

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.


Appendix 1: Good Practice: Getting it Right First Time

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.

End